Human Rights in Contemporary Australia
by Dr Sev Ozdowski OAM Human Rights Commissioner at Centre for Intercultural Studies and Multicultural Education University of Adelaide 19 June 2001
Despite its rather grand title, this presentation will be a relatively modest attempt to set out the key challenges for human rights in Australia as I see them at the outset of my term as Human Rights Commissioner. Let us begin with a quick survey of the state of human rights internationally and in Australia today.
Part A: Achievements of the 20th Century
1. International developments
At the outset of the 20th century, human rights as a concept really did not exist. The notion of citizens' rights was still relatively new - finding their genesis in the French Declaration of the Rights of Man (1789) and the American Constitutional Amendments shortly afterwards. But until the end of the second World War, governments' obligations to their citizens were considered principally to be internal, domestic, affairs. Action between governments to protect individuals was confined to establishing rules of armed conflict - the Geneva Conventions governing the lawful treatment of civilians and enemy soldiers in war time. This body of rules is known as humanitarian law.(1)
The conflagration of World War II and the insidious lead-up to it made it clear to the community of nations that respect for human rights would be fundamental to securing future world peace Therefore, the way in which governments treated their citizens was very much a matter of international concern.
The UN's human rights mandate
The United Nations was established in 1945 'out of the ashes' as they say of the League of Nations which had so abjectly failed to avert a second world war. Article 1 of the UN Charter defines one of the UN's objectives to be
promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.
The main functions of the new organization are set out in Article 55:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and development;
b. solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
The UN member countries agreed on the Universal Declaration of Human Rights in 1948 as a first and initially non-binding statement of human rights principles and standards. Since then the UN members have worked to articulate human rights standards as binding on themselves in international contracts or treaties.
The community of nations, through membership of the United Nations, decides what rights to enshrine in treaties. It is then up to each country to decide whether to accept each treaty or not. Australia has been at the forefront of UN activism and has been prominent among the drafters and the promoters of human rights treaties. There are very few human rights treaties we have not adopted.
The influence of regional arrangements should be recognised here, although it is not relevant to Australia. The European Union, the Organisation of American States and the Organisation of African States all have regional human rights treaties with regional monitoring and enforcement mechanisms.
What are international human rights?
Human rights are based on 'natural law' concepts. They are inherent in each and every one of us by virtue of our shared humanity. They are grounded fundamentally in the basic dignity and equality of each human person.
Although human rights do not derive from governments, their protection and enjoyment depend on governments to recognise them. Human rights treaties are the mechanisms by which governments agree on those human rights they will recognise for their citizens.
Generally four generations of human rights are recognised:
1. civil and political rights
2. economic, social and cultural rights
3. the right to development
4. collective rights.
1. Civil and political rights are those from which the whole philosophy of human rights developed, namely the protection of the individual from the arbitrary exercise of power by the state. These are the rights without which we do not recognise a functioning democracy and include the fundamental freedoms of association, speech, peaceful assembly, thought, conscience and religion. They also include the protection of individuals from torture, arbitrary detention, inhumane treatment and abusive justice processes.
2. Economic, social and cultural rights are regarded in international law as rights to be achieved progressively as they become affordable. These rights are concerned with our material, social and cultural welfare. Here we find the right to work and to social security, to health care and education. Also, the minimum labour standards relating to safe working conditions, minimum leave entitlements and maximum hours of work, child labour and equal pay for work of equal value.
3. The right to development is based on the concept that "development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of [its] benefits"(2). The ultimate objective is a new international economic order.
4. The fourth generation of emerging rights are gathered together as collective or solidarity rights. They include the right to peace and a healthy environment.(3) Here too belong rights of peoples - most notably those rights which aim to secure the cultural survival of Indigenous peoples.(4)
Human rights treaties when ratified impose an obligation of protection and respect on each national government and parliament. Specifically, all member countries have voluntarily undertaken to
- respect the human rights listed
- refrain from violating human rights
- protect human rights from violation by others
- ensure the enjoyment of human rights without discrimination of any kind
- take the necessary steps to give effect to human rights
- ensure that victims of human rights violations have an effective remedy which can be enforced
- limit fundamental freedoms only to the extent permitted in each of the treaties
- balance the rights of individuals where they are in competition with each other.
2. Australian developments
Australia's social evolution has mirrored that of the community of nations of which we have been a leading member, at least in moral terms, during the past 100 years since Federation.
Human rights - or citizenship rights as they might then have been known - were not included in Australia's Constitution despite the French and US examples. We followed instead the British model of reliance upon the common law to protect individuals against abusive interference by governments.
This is largely explicable by reference to our history - Australia's peaceful development towards nationhood and independence. The federation was not forged in war or revolution; we have no history of struggle against massive human rights abuses. Countries established in violence have been much more likely to entrench those hard won human rights in their constitutions. But that is not the Australian experience.
This history leaves aside the violence committed in the establishment of Australian sovereignty against Aboriginal people. Aboriginal people, of course, were excluded from the constitutional debates and were not even considered part of the population for the purposes of the national census. Just five individual rights were explicitly recognised in the Constitution:
1. the right to vote (Section 41)
2. protection against acquisition of property on unjust terms (Section 51(xxxi))
3. the right to a trial by jury (Section 80)
4. freedom of religion (Section 116) and
5. the prohibition of discrimination on the basis of State of residency (Section 117).
The first act of the new federal Parliament in 1901 was to pass the Immigration Restriction Act and the Pacific Island Labourers Act giving effect to the White Australia Policy. The federal franchise - the vote - was not extended to women until 1902.
Economic rights for adult European males were strongly supported in the early years of the new federal Parliament with the introduction of the compulsory conciliation and arbitration system in 1904. The Conciliation and Arbitration Court's first major judgment - Harvester in 1907(5) - established the minimum - or basic - wage as a worker's right and introduced the national wage fixing system which prevailed in Australia for so many decades.
Women's minimum wage was set at a proportion of that for men (initially 54%) until the Equal Pay Case of 1972(6) while Aboriginal workers were excluded from the process until 1966 when Aboriginal stockmen were granted equal wages to non-Aboriginal stockmen.(7)
1960s - 1970s
Attitudes on the domestic scene were slow to change. Despite Australia's leading role in the development of international human rights standards, things remained pretty much unchanged at home until the late 1960s and early 1970s. The Constitutional Referendum of 1967 enabled an enormously influential public debate on racism. Almost 91% of voters agreed to the inclusion of Aboriginal people in the national census. The White Australian Policy was finally fully dismantled in 1973.
This new awareness of the fuller dimensions of the equality ideal flowed on into the 1975 adoption of the Racial Discrimination Act which implemented human rights into domestic law for the first time: the International Convention on the Elimination of All Forms of Racial Discrimination. No doubt the damage caused by the White Australia Policy to Australia's international reputation and business prospects was also an influence.
A Commissioner for Community Relations was appointed in 1975 to monitor the new Act. In 1981 Australia established the first Human Rights Commission as the mechanism for implementing the Race Convention and also the Civil and Political Rights Covenant ratified in 1980.
The flowering of ratifications and new domestic legislation which followed from 1975 owes much to the Referendum debate and its outcome. Also very relevant was the High Court's re-discovery of the external affairs power - that provision in the Constitution which gives the Commonwealth control of external affairs. For decades this was thought to be confined to a power to conduct foreign affairs including the power to ratify treaties. When the treaty dealt with a subject the Constitution gave to the States, surely the Commonwealth could not intrude? The argument was illogical, of course, since one requirement of treaties is that they be implemented domestically. So the High Court found in a decision where Queensland challenged the validity of the Racial Discrimination Act.(8)
A High Court interested in an expansive reading of the Constitution has shown interest in finding that individual rights are implicit in the document - demanded by the constitutionally-established system of government. Thus in 1992 the individual right to participate freely in political debate was recognised.(9)
The major treaties accepted by Australia
Australia has now accepted (that is, ratified(10)) most of the principal human rights treaties:
Covenant on Civil and Political Rights* (including the First Optional
Protocol allowing individual complaints and the Second Optional Protocol
on the death penalty)
2. International Covenant on Economic, Social and Cultural Rights
3. Convention on the Rights of the Child*
4. Convention on the Prevention and Punishment of the Crime of Genocide
5. International Convention on the Elimination of All Forms of Racial Discrimination
6. Convention on the Elimination of All Forms of Discrimination Against Women (but not the Optional Protocol allowing individual complaints)
7. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
8. Convention and Protocol Relating to the Status of Refugees
9. UNESCO Convention Against Discrimination in Education
10. Freedom of Association and Protection of the Right to Organise Convention (ILO 87)
11. Right to Organise and Collective Bargaining Convention (ILO 98)
12. Equal Remuneration Convention (ILO 100)
13. Discrimination (Employment and Occupation) Convention (ILO 111)*
14. Workers with Family Responsibilities Convention (ILO 156)
15. Termination of Employment Convention (ILO 158)
Implementation in Australia
Implementation of human rights treaties is the responsibility of individual member governments. The UN implementation mechanism is limited to monitoring and making recommendations. Even in the case of individual complaints, the treaty committees cannot impose their decisions on any government.
Human rights treaties adopted by Australia do not automatically become binding within the country. Ratification does not make a treaty enforceable in Australian courts or part of Australian law. A second process of domestic incorporation is necessary. Australia has incorporated relatively few of the human rights treaties.
The Race and Sex Discrimination Conventions are almost fully incorporated in Australian law in the Racial Discrimination Act of 1975 and the Sex Discrimination Act of 1984. Of the remaining 13 listed above only the Refugee Convention, the Torture Convention, ILO 100 on equal pay, ILO 111 on employment discrimination, ILO 156 on family responsibilities and ILO 158 on unfair dismissal could be said to have been incorporated to any substantial extent in Australian domestic law.(11)
The others attached to the Commission's legislation - marked * - are not treated as incorporated because they do not give rights independently of the Commission's limited complaints jurisdiction. It should be noted, however, that many human rights, especially those relating to criminal investigation and trial, are similar to common law protections well-recognised in Australia.
Three reasons for our poor implementation record to date can be suggested and I believe there is some truth in all of them.
1. The first is the widespread belief that our democratic system of government, especially with an independent judicial system that applies and develops the common law are the best protectors of individual rights. The Prime Minister has expressed this view recently in the Parliament saying:
The government's position is that the best guarantee of fundamental human rights in this country is to have three things in our society. The first [is] a vigorous and open political system ... The second requirement is to have a due process of law, a judicial system which is incorruptible ... The third [is] to have a free press.(12)
2. The second is that, despite widespread endorsement of a range of rights, those whose powers would be circumscribed by better recognition of individual rights - notably our parliaments - are unwilling to make any surrender. Parliamentary sovereignty is a cherished if little understood ideal. In 1991 a survey revealed that support for a bill of rights was only 57% among lawyers and 14% among Coalition MPs. Interestingly, 89% of Labor MPs were in favour of a bill of rights of some kind, 83% favouring a statutory rather than constitutional model.(13)
3. The third influence stalling better rights protection is that 'human rights' have had a bad press, perhaps since as long ago as the children's rights debates of the late 1980s. Many people believe that human rights are imposed upon Australia - in violation of Australian sovereignty - by the United Nations which in turn is portrayed as an unaccountable world government.
Public opinion in Australia
Yet Australians are pretty comfortable with the general notion of rights and freedoms. We have a strong core national value of basic justice and fairness expressed vividly in the 'fair go' ideal. In opinion surveys over the last decade or so, Australians have overwhelmingly agreed on various rights as fundamental. Some of them received 100% endorsement including:
- Freedom of political speech - on the process and functioning of government
- Trial by jury - a trial by jury should cover everyone as a fundamental right
- Freedom of religion
- Protection of ethnic and racial minorities
- Right to vote
- Freedom from arbitrary arrest
- Right to work
- Protection of people with disabilities.
We are quite comfortable assessing the effectiveness of our core national value of equality. Almost two-thirds (64%) of 1,522 people surveyed in 1991 believed that we are yet to achieve equal rights in Australia and about the same proportion (67%) believed that minorities are unfairly treated in Parliament.(15) In 1999 a majority believed that equal opportunity is now enjoyed by women and migrants.(16) I suspect that recent publicity about work and family responsibilities, workplace discrimination against pregnant women and the IVF debate may have undermined that confidence somewhat.
We are not a laissez faire society focused almost exclusively on individual freedom like the USA. 96% of respondents as recently as 1999 believed that traditional ideas of right and wrong are important, 94% agreed it's important to strengthen respect for and obedience to authority and 93% agreed that respecting Australia's political institutions and laws was important.(17) I have a sense that this reflects the very punitive mentality predominating at present - something that may be inherent in the national character despite the 'Waltzing Matilda' and Ned Kelly icons.
Other current misunderstandings include the widespread perception that human rights serve only special interest groups at the expense of others and in violation of the cherished ideal of equality. There is also the theme that the United Nations - especially in its criticisms of Australia - undermines national sovereignty and should be resisted, even rejected, like economic and other globalisation.
Part B. Australia's human rights law and the Human Rights Commission
The Human Rights and Equal Opportunity Commission Act 1986 details the powers and functions of the Human Rights and Equal Opportunity Commission (HREOC) as the Commonwealth agency responsible for monitoring and promoting human rights protection. The Commission also has responsibilities under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992. As we have seen the principle of non-discrimination is a fundamental one in human rights law - all human rights should be enjoyed by everyone regardless of factors such as race, sex or disability.
Anti-discrimination laws - including those implemented by HREOC - are well-accepted in Australia. Allegations of discrimination in employment, education, housing, services and public places can be investigated by HREOC or one of the State and Territory equal opportunity agencies. Where the parties cannot come to a negotiated settlement of such a complaint, the complainant is entitled to take the matter to court for a decision and a remedy, including compensation where appropriate.
2. Other human rights
Other human rights, however, are treated differently. There is no State or Territory human rights legislation, although some State laws as well as the common law reflect human rights principles as described above. For example, child protection law typically makes the best interests of the child a primary consideration or even the paramount consideration.(18)
Individuals can complain to HREOC about human rights violations but only if the allegedly guilty party is the Commonwealth. Even if the Commonwealth is found to be in violation of human rights, no Australian court can award a remedy. Certainly the Commission cannot do so. The Commission only has power to report to the Parliament with recommendations. These reports may refer to individual complaints(19) or to legislation which violates the human rights of many.(20) Although the Commission's report must be tabled in Parliament, the government is under no obligation to adopt the recommendations.
The same problem of the absence of a remedy is true in employment discrimination cases dealt with by HREOC when the basis of the discrimination is age, sexual preference, religion or another ground - other than race, sex, marital status or disability (which fall under anti-discrimination legislation). The qualification here is that respondents can, and often do, include private companies.(21) Some State and Territory Acts cover some of these grounds of discrimination and allow complainants to take their case to a tribunal and ultimately to court.
Part C. Moving forward on human rights protection
1. Goals to achieve
The next steps in Australia's human rights evolution must be; first, the provision of effective remedies for Australians whose human rights are violated and; second, the setting of national benchmarks on minimum standards fully protected from government interference.
More than half of 1,505 Australians surveyed in 1991-92 believed that their rights are not well protected against unfair government action.(22) In contrast with the views of most citizens, 65% of lawyers and 79% of legislators (both Labor and Coalition) believe that human rights are well protected against unfair government action.(23) I really feel that view is overly complacent and possibly even self-serving.
Australia has made tremendous progress in deciding what the standards ought to be at the international level and, to some extent, domestically. Now it is time to turn our attention to enforcement and entrenchment of these standards for the permanent protection of our expectations and our rights.
The lack of an effective remedy for rights violations is evidenced by the limits on HREOC's complaints powers. The contrast with remedies available in race and sex discrimination cases - not limited to financial remedies- is very stark indeed. One way to progress could be to give Australian courts the same role and responsibilities regarding human rights complaints as they have long had regarding race and sex discrimination complaints.
Reining in government is much more controversial in Australia as evidenced by our reluctance to consider the possibilities of a Bill of Rights. It is the absence of a Bill of Rights which has allowed State and Territory governments to impose indeterminate sentences and mandatory sentencing. It is the absence of a Bill of Rights which has allowed the Commonwealth to deny habeas corpus to people in immigration detention centres.
2. National Human Rights Dialogue
How do we move forward to the next stages of human rights protection in Australia? My priority as Human Rights Commissioner will be to progress these issues in consultation with the Australian people. To take human rights protection to the next stage in Australian law and public policy it is clearly essential to work first on attitudes towards human rights. Beginning with a pilot project in Wollongong this year I will undertake and extensive national dialogue on human rights which will, I think, work in three stages.
First there is a need for much more extensive and relevant human rights education. Until Australians have ownership of human rights and know and care about their own rights and those of others, there is no point talking about improved implementation. I am encouraged by survey findings that public opinion does favour better protection for individual rights. In 1991 72% of ordinary citizens surveyed wanted a bill of rights setting out basic rights and freedoms for individuals.(24)
The second stage of the dialogue will be a discussion about remedies - if rights are violated, where should the victim be able to seek a remedy and what should that remedy be?
The third stage will be a discussion about entrenchment - about drawing the line in the sand beyond which governments cannot step to infringe our rights and freedoms. What are those rights we want to entrench and how should we do that? We need to update ourselves on the new generation of bills of rights and get over the idea that the US Bill of Rights with its strained interpretations and excessive litigiousness is the only option out there. Canada, South Africa and the UK now offer an interesting range of alternatives which we should investigate for ideas in the development of a genuinely Australian statement of fundamental values. Ten or 15 years ago, of course, Australia was only one of many common law countries without a core human rights charter of some description. Today we are alone among our peers. While that cannot be the only argument in favour of adopting a bill of rights, it must be a reason to look at the question once again.
2. Preamble, Declaration on the Right to Development (1986) at www1.umn.edu/humanrts/instree/s3drd.htm
3. See the Draft Declaration of Principles on Human Rights and the Environment (1994) at www1.umn.edu/humanrts/instree/1994-dec.htm Note particularly the Indigenous and Tribal Peoples Convention (ILO 169) at www1.umn.edu/humanrts/instree/r1citp.htm, and the Draft Declaration on the Rights of Indigenous Peoples (yet to be finalised) at www1.umn.edu/humanrts/instree/declra.htm
5. In the Equal Pay Case of 1969 - (1969) 127 CAR 1142 - the principle adopted was 'equal pay for equal work'. This was readily circumvented by labelling female workers differently - eg women were called seamstresses whereas men were called tailors. The principle in 1972 was 'equal pay for work of equal value': (1972) 147 CAR 172.
9. Australia undertakes a two stage adoption process of (1) signature which indicates intention to become a party in the future and (2) ratification which makes the treaty binding within a stipulated period. Between signature and ratification the federal government now undertakes a detailed State and Territory government consultation process.
10. Refugees Convention in the Migration Act 1958; Torture Convention in the Crimes Act 1914 (section 23Q) and the Extradition Act 1988; ILO 100, ILO 111, ILO 156 and ILO 158 in the Workplace Relations Act 1996.
18. Article 3.1 of the UN Convention on the Rights of the Child requires the best interests of the child to be a primary consideration in all actions concerning children. For more detail see Human Rights Brief No. 1 'The Best Interests of the Child' at www.humanrights.gov.au/human_rights/briefs/brief_1.html
19. Such as in the case of inhumane treatment of a Nigerian detainee at the Perth Immigration Detention Centre: Report of an Inquiry into a Complaint of Acts or Practices Inconsistent with or Contrary to Human Rights in an Immigration Detention Centre, HRC Report No. 10, 2000: www.humanrights.gov.au/pdf/HRC_10.pdf .
20. Such as Commonwealth superannuation legislation which discriminates against same sex couples: Superannuation Entitlements of Same-Sex Couples, HRC Report No. 7, 1999: www.humanrights.gov.au/human_rights/gay_lesbian_rights/index.html .
21. See, for example, Age Discrimination in the Australian Defence Force, HRC Report No. 8, 2000: www.humanrights.gov.au/human_rights/older_aust/index.html; Discrimination on the Ground of Trade Union Activity, HRC Report No. 9, 2000: www.humanrights.gov.au/pdf/HRC_9.pdf
22. Social Science Data Archive, Rights in Australia 1991-1992: National Household Sample (1992, ANU, Canberra); Brian Galligan and Ian McAllister, 'Citizen and Elite Attitudes Towards an Australian Bill of Rights' in B Galligan & C Sampford (eds) Rethinking Human Rights (1997, Federation Press) pages 144-153, at page 147.