Human Rights in Contemporary Australia
Paper delivered at the Law Conference, 4-8 October 2001, Christchurch, New Zealand by Dr Sev Ozdowski.
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. My international survey will be very brief indeed, as it is well known to Conference participants.
2. Emergence of International Human Rights
At the outset of the 20th century, human rights as an international law 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.
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 became 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:
- higher standards of living, full employment, and conditions of economic and social progress and development;
- solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and
- 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
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.
The influence of regional arrangements should be recognised here, although it is not directly 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.
Many human rights were protected by domestic legislation well in advance of the emergence of international human rights law and the treaty system. Human rights treaties are simply the mechanisms by which governments agree on those international human rights they will each recognise for their citizens.
Generally four generations
of international human rights are recognised:
- civil and political rights
- economic, social and cultural rights
- the right to development
- collective rights.
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. They 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.
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.
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". The ultimate objective is a new international economic order.
The fourth generation of emerging rights are gathered together as collective or solidarity rights. They include the right to peace and a healthy environment. Here too belong rights of peoples - most notably those rights which aim to secure the cultural survival of Indigenous peoples.
Human rights treaties
when ratified impose an obligation of protection and respect on each national
government and parliament. Specifically, all member countries have voluntarily
- 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; and
- balance the rights of individuals where they are in competition with each other.
3. Protection of Human Rights in Australia
Australia is a federation of states which adopted a Westminster system of government. Australia's system of human rights protection has evolved according to its own unique history, and alongside the international human rights system, during the 100 years since Federation. The common law continues to play an important role in contemporary Australia, especially regarding protection of civil liberties, although the importance of statutory law has grown significantly since the Federation, and in particular since the early seventies.
The Federal Constitution
The Constitution of Australia divides spheres of legislative, judicial and executive responsibility between the Commonwealth of Australia and the States. In brief, the Federal government is responsible for defined heads of power, including national defence, international affairs and finances, including most taxation. The state governments are responsible for the residual areas, and particularity in provision of services in areas such as health, education (with the exception of tertiary education) and policing. Both Federal and State governments are responsible for human rights protection. States, for example, may also incorporate international human rights principles into state legislation to the extent that such legislation is not inconsistent with any Commonwealth legislation in the area.
On the federal level, human rights - or citizenship rights as they might have been known at federation - 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 mostly peaceful development towards nationhood and independence. The Australian federation was not forged in war or revolution, and non-indigenous Australians have no history of struggle against massive human rights abuses. Nation states established in violence have been much more likely to entrench those hard won human rights in their constitutions. But that is not the experience of mainstream Australia.
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. Aboriginal people were not recognised as Australian citizens until the 1967 Constitutional Referendum that helped to change the legal and human rights landscapes of the following decades.
The Australian reliance on the common law rather than constitutional rights
meant that only five individual rights were explicitly recognised in the
- the right to vote (Section 41)
- protection against acquisition of property on unjust terms (Section 51(xxxi))
- the right to a trial by jury (Section 80)
- freedom of religion (Section 116) and
- the prohibition of discrimination on the basis of State of residency (Section 117).
The Constitution is silent in relation to numerous other rights that are well recognised in the constitutions of other Western democracies. For example, the Constitution makes no mention of fundamental freedoms such as the freedom of association, freedom of movement, freedom of peaceful assembly, freedom of thought, belief and opinion, and freedom from arbitrary arrest or detention. It does not guarantee the right to a fair trial or due process, nor does it ensure equality of all persons before the law.
The Constitutional jurisprudence of the High Court has made a significant contribution to the protection of human rights in Australia. Particularly 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. Section 51(xxix) of the Constitution, the external affairs power, provides the Commonwealth Parliament with the power to legislate so as to incorporate provisions of international human rights conventions into Australian domestic law.
For decades the external affairs power 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.
A High Court interested in an expansive reading of the Constitution has found that certain individual rights are implicit in the system of government it establishes. Thus in 1992 the individual right to communicate freely in political matters was recognised by the High Court.
The history of Australian legislation from the point of compliance with contemporary human rights standards is uneven.
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. This was racist legislation which would be in clear conflict with a range of contemporary human rights conventions.
On the other hand, Australia did reasonably well by contemporary standards in entrenching a democratic system of government. For example, as early as in 1902 the federal franchise - the vote - was extended to women (This voting equality was however not extended to other spheres of importance to women until the early seventies.)
Australia's particular achievement has been the development of a comprehensive system of protection of economic and social rights, that was put in place well before the Bolshevik revolution in Russia. In fact Australia has been an international leader in this field.
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 - 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 while Aboriginal workers were excluded from the process until 1966 when Aboriginal stockmen were granted equal wages to non-Aboriginal stockmen.
4. Impact of international human rights law on federal law
Australia has been at the forefront of UN activism and has been prominent among the drafters and the promoters of human rights treaties.
Instruments ratified by Australia
By now Australia has accepted (that is, ratified) most of the principal human rights treaties:
- International Covenant on Civil and Political Rights* (including the First Optional Protocol allowing individual complaints and the Second Optional Protocol on the death penalty)
- International Covenant on Economic, Social and Cultural Rights
- Convention on the Rights of the Child*
- Convention on the Prevention and Punishment of the Crime of Genocide
- International Convention on the Elimination of All Forms of Racial Discrimination
- Convention on the Elimination of All Forms of Discrimination Against Women (but not the Optional Protocol allowing individual complaints)
- Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- Convention and Protocol Relating to the Status of Refugees
- UNESCO Convention Against Discrimination in Education
- Freedom of Association and Protection of the Right to Organise Convention (ILO 87)
- Right to Organise and Collective Bargaining Convention (ILO 98)
- Equal Remuneration Convention (ILO 100)
- Discrimination (Employment and Occupation) Convention (ILO 111)*
- Workers with Family Responsibilities Convention (ILO 156)
- Termination of Employment Convention (ILO 158)
Instruments incorporated into domestic law
However, despite Australia's leading role in the development of international human rights standards, these standards did not have much impact on domestic recognition of human rights by way of legislation until the late 1960s and early 1970s and even so not all human rights treaties have been comprehensively incorporated into federal law.
A notable achievement, however, is the 1975 Racial Discrimination Act which incorporated the International Convention on the Elimination of All Forms of Racial Discrimination into domestic law. 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.
Also the Sex Discrimination Convention (CEDAW) has been almost fully incorporated in Australian law through 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.
The others attached to the Commission's legislation (marked *), particularly the ICCPR, 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 investigations and trials, are similar to common law protections well-recognised in Australia.
One reason for our lack of full implementation of civil and political rights to date 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.
The role of the Human Rights Commission
The Human Rights and Equal Opportunity Commission (HREOC) is a national independent statutory government body established in 1986 by an Act of federal Parliament called the HREOC Act. HREOC administers federal legislation in the area of human rights, anti-discrimination and social justice. This includes complaint-handling, public inquiries, policy and legislative development and human rights education and training. In raising public awareness of human rights, the Commission fosters public discussion, and undertakes and coordinates research and educational programs to promote human rights and eliminate discrimination.
The Commission also investigates alleged infringements of human rights under the HREOC Act and alleged infringements of the Commonwealth Racial, Sex and Disability Discrimination Acts.
Equality protection laws - including anti-discrimination Acts 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, in most cases, the complainant is entitled to take the matter to court for a decision and a remedy, including compensation where appropriate.
Individuals may also complain to HREOC about civil and political rights violations under the International Covenant on Civil and Political Rights where the allegedly guilty party is the Commonwealth. However unlike complaints under the anti-discrimination laws, 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 or to legislation which operates to violate the human rights of many - such as Commonwealth superannuation legislation which discriminates against same sex couples. Although the Commission's report must be tabled in Parliament, the government is under no obligation to adopt the recommendations.
The lack of an effective remedy for civil and political 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.
It is the absence of effective implementation of the ICCPR that has allowed State and Territory governments to impose 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.
5. Moving forward on human rights protection
Based on the above analysis one could conclude that human rights protection in Australia is of relatively high standard. Democratic traditions and a comprehensive body of common and statutory laws provide a solid basis for protection of human rights. Despite the existence of continuing disadvantage of indigenous Australians, particularly strong mechanisms are in place to protect equality and economic rights.
Australia could, however, improve protection of civil and political rights by incorporating provisions of the International Covenant on Civil and Political Rights into federal legislation. This would create an Australian bill of rights or charter of freedoms similar to many statutory bills of rights that may be found in many Western jurisdictions.
In the past, public opinion has played a crucial role in the development of new human rights protection measures. For example, the Constitutional Referendum of 1967, which I referred to earlier, enabled an enormously influential public debate on racism. Almost 91% of voters agreed to the inclusion of Aboriginal people in the national census. This new awareness of the fuller dimensions of the equality ideal flowed on to the greater legislative protection of human rights in the Racial Discrimination Act and other legislation. No doubt the White Australia Policy, finally fully dismantled in 1973, and the damage it caused to Australia's international reputation and business prospects was also an influence.
So let us examine contemporary public opinion in Australia to assess what support there is among Australia's public for enactment of a bill of rights.
Public opinion in Australia
Examination of available public opinion data suggests that we have to account for a complex body of attitudes.
It was interesting to find that there appears to be a growing "equality fatigue" amongst Australians. Many people express the view that anti-discrimination laws provide "special favours" for minorities and "nothing of value" for the mainstream. At the same time there is a sense that equality has been achieved and there is little else that must be done in order to protect equality rights. In fact, community confidence in the existence of equal rights in Australia has risen over the past decade. In 1991, almost two-thirds (64%) of 1,522 people surveyed 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. In 1999 a majority believed that equal opportunity is now enjoyed by women and migrants. This "equality fatigue" does not appear to extend to people with disabilities.
however, more comfortable with the notion of rights and freedoms than
they are with increased protection for equality rights. In opinion surveys
over the last decade or so, Australians have overwhelmingly agreed on
various rights as fundamental. Some of them received 100% endorsement
- 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;
- Right to vote;
- Freedom from arbitrary arrest.
Further, more than half of 1,505 Australians surveyed in 1991-92 believed that their rights are not well protected against unfair government action. It is encouraging to read 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.
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. One could suggest that such view is overly complacent and possibly even self-serving.
Despite widespread endorsement of a range of rights and freedoms and desire for protection from arbitrary government action, there exists a range of institutional and other barriers to further advancement of human rights protection through legislation.
One key barrier relates to the fact that 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.
Another barrier relates to the lack of political leadership for change. For example, those whose powers would be circumscribed by better recognition of individual rights - notably our parliaments - are unwilling to surrender power by submitting to another form of scrutiny. Parliamentary sovereignty is a cherished if little understood ideal. In 1991 a survey revealed that support for a bill of rights was only 14% among Coalition MPs. Interestingly, 89% of Labor MPs were in favour of a bill of rights of some kind, with 83% favouring a statutory rather than constitutional model. Recently, Democrat and independent members of Parliament have proposed statutory bills of rights.
Qualified public support exists for protection of civil and political rights. However, recent issues such as the Tampa asylum-seekers incident or the terrorist attacks on the US may have added complexity to the issue. Australians who believe in basic human rights are also concerned about their security, and there has already been some discussion of compromising rights in order to increase a sense of national security. The clash of cultures that these incidents have highlighted reveals important tensions within Australian society, and between ideas of protecting freedoms and protecting security. Hopefully, discussion on these points will expand into a more general debate about human rights and their role in Australian society. I will turn now to the nature of such a debate and the role that the Human Rights Commissioner can play in stimulating serious dialogue on human rights.
National Human Rights Dialogue
As we have seen, Australia has made tremendous progress in deciding what the standards ought to be at the international level and, to some extent, domestically. The Australian public supports in principle many human rights and possibly even a bill of rights. Australians also have high expectations of their governments in protecting their individual rights. How, then, can we approach the enforcement and entrenchment of human rights standards in a way that Australians will support?
In order to protect and further advance our hard won freedoms, Australia must now work towards better understanding of human rights by everyone. As part of a democracy, in which public involvement in political processes is crucial, support for human rights must be a first step towards their full protection. Without grass-root support for change, and in the absence of political leadership on the issue, there will be no improvement in legal protection mechanisms for human rights. To achieve the increased knowledge and subsequent legal change we must bring human rights into the forefront of mainstream debate.
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. I will undertake an extensive national dialogue on human rights, which will need to address three issues.
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.
The second issue involves remedies - if rights are violated, where should the victim be able to seek a remedy and what should that remedy be?
The third issue concerns 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?
As part of this discussion we need to update ourselves on the new generation 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.
So, how will this national dialogue take shape? I have already begun to work on these three stages, and to focus particularly on the first. Human rights education must speak to the Australian people and the concerns that they have about the protection of their rights. My first priority as Commissioner has been to meet with ordinary Australians and to listen to their ideas about human rights. It is only through this process that I believe we can genuinely address the concerns of the Australian public. After meeting and consulting with diverse groups throughout Australia, I am now faced with the more daunting task of turning these consultations into a dialogue.
To end on a positive note, I also believe that we are now facing the ideal opportunity to debate human rights. Recent incidents have brought human rights issues to the forefront of mainstream consciousness. This provides an opening for serious national debate on the context of human rights within Australian society.
governments such as the USA, Great Britain and Australia are giving legislative
and executive enhancements to anti-terrorist security measures. While
no one would deny the need for heightened security, the absence in Australia
of a bill of rights makes it difficult for the required balance between
individual freedoms and state security to be maintained. In canvassing
that issue I am hopeful that the Australian community will come to focus
on the broader issues of human rights more completely that it might have
been possible in more benign times.
first of the Geneva Conventions is dated 1864 and covers the immunity
of military hospitals and medical staff.
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
4. 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. s109 Australian Constitution
6. Koowarta v Bjelke-Petersen(1982) 153 CLR 168.
7. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
8. Ex parte H V McKay (1907) 2 CAR 1.
9. 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.
10. Re Cattle Industry (Northern Territory) Award (1966) 113 CAR 651.
11. 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.
12. 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.
13. House of Representatives Hansard, 5 April 2001, page 25680.
14. Social Science Data Archive, Rights in Australia 1991-1992: National Household Sample (1992, ANU, Canberra).
15. Social Science Data Archive, Australian Constitutional Referendum Study (1999, ANU, Canberra).
16. Social Science Data Archive, Rights in Australia 1991-1992: National Household Sample (1992, ANU, Canberra); Australian Election Study (1998, ANU, Canberra); Australian Constitutional Referendum Study (1999, ANU, Canberra).
17. 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.
18. Social Science Data Archive, Rights in Australia 1991-1992: National Household Sample (1992, ANU, Canberra).
20.Social Science Data Archive, Rights in Australia 1991-1992: National Household Sample (1992, ANU, Canberra).