Annual Report 2002-2003: Chapter 6
Human Rights and Equal Opportunity Commission: Annual Report 2002 - 2003
Chapter 6: Human Rights
- Human Rights Commissioner
- National Inquiries
- Submissions to federal Parliament
- Human rights education
- International activities
Dr Sev Ozdowski OAM was appointed Human Rights Commissioner in December 2000 for a five-year term.
Statement from the Commissioner
In the contemporary world, especially amongst first world economies, the culture of civil liberties, freedoms and non-discrimination are reasonably well established and these precepts have clear links to innovation, creativity and the broader concepts of economic productivity and a well-functioning civil society.
But also in this same contemporary world, especially in countries such as Australia, where human rights has been most advanced and unfettered we are starting to witness some calling for a ‘tightening of the human rights belt’. Many people are prepared to accept a more flexible approach to, or even reduction in, civil liberties in order to: defeat terrorism; confront the problems arising from unauthorised people movements, and; combat international crime – drugs, money laundering and people trafficking to name but some key issues.
These reductions are being made by governments of the day, usually with the tacit support of a large segment of the population, at least as measured by focus groups and talk back radio. While a democracy must always be attuned to majority opinion, a human rights commission in a democracy must also be conscious of the dangers that can arise when the values espoused by civil liberties’ advocates are drowned out by the roar from the Colosseum.
Decisions may be taken in the heat of the moment (eg following the September 11 terrorist attack or the Bali bombing) without due consideration of human rights principles. This is probably inevitable, but we must not lose sight of the fact that these principles are capable of delivering wisdom and balance, a combination that has served Australians well in the past and could be said to represent the bulwarks of democracy.
In this environment it is all the more puzzling why there is still such a comparative lack of penetration for civil and political rights issues into heartland Australian communities; despite the fact that the Commission’s website received an astonishing 4 372 899 page views during 2002–03.
This state of affairs is in manifest contradistinction to the broader community recognition accorded to the anti-discrimination laws dealing with equality, which enjoy a profile that would be envied by any national mass marketing exercise in ‘awareness raising’ conducted by one of the consumer retail chains. The manner in which these equality laws have embedded themselves in the national consciousness over the last 20 years in an educative sense is quite remarkable. Therefore, given that the same effort has been put into promoting civil and political rights in that period, why do they currently languish as the ‘cinderella’ of the Australian human rights story?
One of the more important reasons for this distinction, I believe, lies in the fact that the civil and political menu lacks a ‘hook’ that could more readily engage the attention of the general populace. Specifically, when discussing human rights concepts, one moves from vast universal themes analogous to a latter-day Homeric epic, to an everyday ‘common or garden variety’ example of, well, nothing much really. Imagine yourself addressing a community group in a suburban setting anywhere in Australia and the challenge that presents itself is to make civil and political rights relevant to your audience’s everyday cares and woes! If you are able to make such a link, the ultimate solution of a report to federal Parliament appears a little tame, compared with the robustness of the court sanctioned disciplines available under the equality provisions.
As I have endeavoured to establish in my work as Human Rights Commissioner, this failure to fully embed human rights in the domestic legal framework in a similar manner to equality rights, may also be unwittingly responsible for subtle community resistance to important social and economic improvements that our political leaders are keen for us to embrace. It is axiomatic that the deregulated economic model, espoused in Australia by governments of all persuasions is here to stay. We, the Australian community have been asked to take at face value the proposition that, if we are going to be competitive in world markets, we must take more individual responsibility for our economic productivity, leaving governments free to concentrate on the basic service provision of health, education, defence and law and order.
But these dramatic changes are occurring against a backdrop of diminishing institutional protections. Trade unions face declining membership and relevance; parliament is dominated by the necessary discipline of ‘party line’ voting; courts can only work within the framework of the law and the media are ultimately responsible only to their shareholders. Little wonder then that some Australians feel isolated and threatened by the ‘new economic order’ and sometime exhibit a strong sense of resentment towards their governments.
Arguably, an Australian Bill of Rights, giving rise to legally enforceable outcomes, could restore some sense of balance. If individual Australians were confident that the requirement to become economically more self reliant was underpinned by a safety net of enforceable rights, they might feel more relaxed about their increasingly deregulated world and it could also form the basis of a new ‘social contract’ with the government.
Of course as I noted at the outset, events such as September 11, Afghanistan, Bali and the war in Iraq have added complexity to this issue. Australians who believe in basic human rights are also naturally concerned about their security. Human rights are fragile things in the face of terror and in the absence of security.
The proposed curtailing of personal freedoms in response to the ‘war on terrorism’ which is broadly accepted, in my view makes a judicially enforceable Bill of Rights even more essential. In absence of legislated rights, it is difficult to measure what we are being asked to give up, when security measures are proposed. We have no easy way to assess the ‘proportionality’ of the proposals.
The Australian Government’s recent parliamentary experience with the ASIO Bill is a good case in point. My upbringing and experience under a communist regime in Poland has given me a healthy dose of scepticism when it comes to the Executive’s use of ‘intelligence services’. It therefore came as no surprise to me that some Senators laboured so long and hard to try and establish exactly what the proposed legislation would mean in practice.
And what a difficult task that proved to be. Even so, the Bill that was finally approved with the support of the major opposition party contains a number of challenging features from a human rights perspective. The feature of the ASIO Bill applying to minors aged between 16 and 18, in the Commission’s view: “raises issues of Australia’s compliance with the Convention on the Rights of the Child, which requires that detention of a child (meaning a person under the age of 18) should be used only as a measure of last resort and for the shortest appropriate period of time. Those obligations apply even to children convicted of serious crimes. They apply with more force where, as is the case under the ASIO Act, one is dealing with the detention of unconvicted children, who need not be charged with any offence and may ultimately be found to be innocent of any wrongdoing.
It is also relevant to note that the ASIO Act provides for significantly greater periods of detention than the Crimes Act 1914 (Cth) which already makes careful and measured provision for the detention and questioning of children arrested on suspicion of having committed a crime. Under the ASIO Act a person aged between 16 and 18 may be detained for periods of up to seven days under any one warrant. In contrast, the Crimes Act provides for a maximum of two hours detention (not including time taken for matters such as consulting legal representatives)”.
I am not suggesting that the pre-existence of a Bill of Rights would automatically preclude a government from implementing legislation such as the ASIO Bill. The British Government’s experience demonstrated that this is not so when they passed similar laws. The difference is that in Britain the Home Secretary was required formally to suspend the operation of the Human Rights Act in order to implement those sections of the proposed Bills which were contrary to the Human Rights Act. This has the effect of putting the parliament and their constituents ‘on notice’ that existing ‘rights’ are under question, thereby concentrating everyone’s attention, and most importantly, permitting proper consideration of the vital issue of proportionality.
As Cherie Blair QC, civil rights campaigner and wife of the British Prime Minister noted recently in Australia: “The most significant impact of the Human Rights Act has been the way in which the language of human rights has begun to permeate the consciousness of individuals and organisations, and thereby to inform the policies and practices of governmental and non-governmental bodies alike”.
To “permeate the consciousness of individuals”, is at the heart of what I could term ‘the holy grail of human rights’ in Australia; namely how do we all better infuse our fellow Australians with an understanding of human rights? On this objective I am certainly at one with our Attorney-General, Daryl Williams QC, when introducing Australian Human Rights Commission Bill 2003 (Cth) said of human rights education that it is designed to “make information on human rights the central focus of the new Commission’s functions” and to do that there is a “need to re-order the Commission’s sets of powers such that the education/research functions appear first”.
However, the Commission is not convinced that the measures outlined in the Bill are the best means of achieving the desired outcome. Nevertheless, I welcome the opportunity the Bill provides to generate a widespread national discussion on the necessary objectives of human rights education.
Progress report on Inquiry into Children in Immigration Detention
It had been anticipated, as indicated in last year’s Annual Report, that the Inquiry might have completed a draft report by the end of 2002, which in turn would result in a publicly available final report in the course of 2003. It now appears that this was an overly optimistic assumption and that a publicly available final report will now not be available until 2004. The main reasons behind this timetabling change are twofold; firstly, the Inquiry has assembled a substantial body of evidence and its proper consideration necessitates very careful and time-consuming analysis. This has been the case for both the Inquiry itself and the respondent bodies, the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) and Australasian Correctional Management (ACM). Secondly, under the provisions of the Human Rights and Equal Opportunity Act 1986 (HREOCA) empowering this Inquiry, maintenance of the appropriate balance between the Inquiry’s capacity to inform itself in any way it sees fit and the requirement to afford DIMIA/ACM with the appropriate standard of common law procedural fairness, requires the Inquiry to proceed with a high degree of diligence.
Nevertheless I remain confident that the final report will, by virtue of its exhaustive processes of examination and analytical rigour, amply compensate for the length of its gestation.
Inquiry Commissioner Dr Sev Ozdowski (centre)
with Assistant Commissioners, Dr Robin Sullivan (right) and Professor Trang Thomas (left).
It is also proposed to release “A Guide to the Findings and Recommendations of the Inquiry into Children in Immigration Detention” as an explanatory adjunct to the full report. A similar procedure was followed with the Bringing them home report.
Since the announcement of the Inquiry in November 2001 the Inquiry has received 341 submissions, including 70 confidential submissions. These submissions have taken a variety of forms including tapes, drawings and poetry, as well as detailed commentary from organisations representing detainees, human rights and legal bodies, members of the public, religious organisations, state government agencies and a range of non-government policy and service providing groups.
Most of the public submissions for which the Inquiry was able to obtain an electronic copy have been placed on the Commission’s website. Public hearings have been held during 2002 in: Melbourne 30–31 May; Perth 10 June; Adelaide 1–2 July; Sydney 15–17 July; Brisbane 5 August; Sydney 2–5 December (DIMIA/ACM).
Visits to immigration detention facilities in 2002 included: Christmas Island, January; Cocos (Keeling) Islands, January; Woomera, January, end June and September; Maribyrnong, May; Perth, Port Hedland and Curtin, June; Villawood, August and Baxter; December.
Focus groups with former detainees now living in the Australian community were held in: Adelaide – eight focus groups; Brisbane – two focus groups; Perth – five focus groups; Melbourne – 10 focus groups and Sydney – five focus groups.
The Inquiry Commissioner was assisted in his work by two Assistant Commissioners: Dr Robyn Sullivan, Queensland Commissioner for Children and Young People and Professor Trang Thomas, Professor of Psychology at RMIT in Victoria.
An important part of a Commissioner’s work within the structure of the Commission involves formal interaction with federal Parliament. This may take the form of tabling reports via the Attorney-General, appearing before parliamentary committees or making written submissions. In 2002–03, the Commissioner was involved in all three exercises.
In late-July 2002, the Commissioner made a written submission to the Senate Legal and Constitutional References Committee into their Inquiry into the proposed Migration Legislation Amendment (Further Border Protection) Bill 2002. The submission recommended that parliament should not approve the Bill. The committee’s report was tabled in October 2002 and also recommended against approving the Bill. In the course of its report, the committee made favourable reference to the Commission’s submission in relation to Australia’s non-refoulement obligations and the fact that reliance on a non-compellable ministerial discretion, waiving the prohibition on visa application, is an inadequate recognition of Australia’s human rights obligations.
In mid-August 2002, the Commissioner appeared before the Human Rights Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade. The subject matter of the sub-committee’s Inquiry was ‘Aspects of HREOC’s Annual Report 2000–01 concerning immigration detention centres’. The Commissioner responded to a variety of different questions from the members of the sub-committee concerning conditions in immigration detention centres (IDCs), especially as they related to mental health and children. As the Commissioner had extensively visited all IDCs in the course of both his ‘2001 Report on IDCs’ and the National Inquiry into Children in Immigration Detention, the exchanges between himself and members of the sub-committee were particularly informative.
In mid-October 2002, the Attorney-General effected parliamentary tabling of the Commissioner’s ‘Report on visits to Immigration Detention Facilities by the Human Rights Commissioner – 2001’. This allowed for public release of the report and distribution of copies to a broad spectrum of NGOs and relevant individuals. The details of the report were extensively foreshadowed in last year’s Annual Report. The Commissioner intends this report to be a regular feature of his work.
In late-June 2003, the Commissioner made a supplementary submission to the ‘Inquiry into human rights and good governance education, in the Asia-Pacific region’, conducted by the Human Rights Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade. This submission was preceded with an appearance by the Commission before the sub-committee, as a result the Commission undertook to respond to a number of additional questions, the answers to which also assumed the status of a supplementary submission. The Commissioner’s supplementary submission focussed on the paradox of the relatively high educative profile enjoyed by the equality provisions of HREOCA, compared to the human rights provisions. The Commissioner’s submission suggested that this was largely attributable to the fact that human rights’ breaches in Australia are not subject to judicial oversight and sanction when so proven.
A key function of the Commission is to “promote an understanding and acceptance, and the public discussion, of human rights in Australia”. Within the context of his National Human Rights Dialogue, the Commissioner has continued to meet with a wide cross-section of the Australian community by attending meetings, seminars and workshops where discussion occurred on topics such as:
- What are international human rights?
- Which rights are most valuable to us?
- Is there a hierarchy of rights?
- What rights are well protected in Australia?
- Which rights need better protection?
- What happens when rights conflict?
In order to illuminate these discussions, the Commissioner has found it useful to deal with an issue which is familiar to most Australians, such as long-term immigration detention and mental health, as a practical example of human rights challenges that confront us on our own doorstep. Within this general concept, he has delivered 11 major addresses in the year under review to conferences throughout Australia. These talks have been in diverse locations such as Bathurst and Tweed Heads in regional New South Wales to major capital cities including Brisbane, Adelaide, Sydney and Melbourne.
This context has been occasioned by the Commissioner’s many visits to remote location detention centres, which have enabled him to accurately gauge the deleterious effects of long-term detention on the mental health of particular individuals. From this he has developed human rights themes, such as the role of international conventions like the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC), and their intersection with our domestic law, embodied in this case in of the Migration Act 1958 (Cth). This naturally leads to consideration of security issues in a post 9/11, Bali, Iraq War world and the challenge of balancing these, and concepts of border protection and national sovereignty, with human rights principles.
The Commissioner does not think it is coincidental that recent community polling reveals that currently 70–75 percent of those sampled believe that children should be released from immigration detention, compared to the view ‘post-Tampa’, where 75 percent of those sampled approved of the government’s action. Many educative factors are clearly at work here, but one of the outcomes is undoubtedly a heightened level of understanding about human rights in the Australian community.
One notable offshoot of the Commissioner’s discussions about mental health in detention and its link with human rights, has been a number of requests to revisit the 1993 Report of the National Inquiry into the Human Rights of People with Mental Illness, colloquially known as the “Burdekin Report”. At the conclusion of the Inquiry into Children in Immigration Detention, the Commissioner will decide whether he has anything additional to offer in the area of mental health that has not already been the subject of examination by other bodies.
Finally, as alluded to in his opening statement, the Commissioner has been assiduous in arguing for the introduction of an Australian Bill of Rights, as a practical tool to demonstrate how human rights could have a practical, day-to-day effect on average Australians’ lives. In the course of the last year he delivered another four major addresses on this topic, as well as speaking on it less formally to many community gatherings.
Meeting of the International Coordinating Committee of National Institutions for the promotion and protection of Human Rights (ICC); and the 59th Session of the UN Commission on Human Rights
In April 2003, the Commissioner attended (as the Commission’s representative) the above meetings in Geneva. The ICC comprises 16 members, four each from the regions of Europe, Asia Pacific, the Americas and Africa. Australia is currently one of the Asia Pacific delegates to the ICC.
The ICC meeting focused once again on the status of National Institutions (NI) that complied with the Paris Principles against those that did not.
Canada, on behalf of Australia and France, presented to the ICC as previously requested a preliminary analysis of options for enhancement of the role of NIs at the UN’s Economic and Social Council (ECOSOC). Canada noted that this issue involves questions of substance and process. Substance relates to the status of NIs, how to distinguish those that complied with the Paris Principles from those that do not, and whether NIs should for example, push to speak under all/any agenda items, make written statements or seek to intervene after the high level stage of the Commission for Human Rights (CHR).
Any solutions would also need to consider issues such as, participation in other functional Commissions and the Commission on the Status of Women for instance. In that light there is no question that the easiest solution would be by way of amendment to the ECOSOC rules, however this outcome will not be readily achieved.
The meeting then agreed to the request of the working party that further work be done and reported on at the next ICC meeting. Accordingly, Canada will provide another draft paper to Australia and France for comment.
Other issues covered included:
- a Danish paper on technical cooperation between NIs
- developments concerning UN treaty bodies and the capacity for NIs to input
- the credentialing of 16 NIs
- agreement as to composition of the next credentialing committee.
59th Session of the UN Commission on Human Rights (CHR)
Under agenda item 18(b) which concerns NIs, the Commissioner gave the permitted four-minute address on the work of the Commission over the last year.
The Sino-Australian Seminar on Alternate Dispute Resolution and the Modern Rule of Law
In mid-November 2002, the Commissioner attended the above seminar in Beijing which was organised to implement a Memorandum of Understanding between the Chinese Ministry of Justice and the University of Victoria. It was sponsored by the Department of Judicial Assistance and Foreign Affairs, the Judicial Research Institute and the Department of Guiding Grass-Root Work of the Ministry of Justice and the Victorian University. The sponsorship extended to support of the Commissioner’s participation in the seminar.
The seminar was given high official status in Beijing (reported in official press) and involved many senior officials from both sides.
The seminar focused on the role of law in modern society and issues associated with alternative dispute resolution (ADR). In particular, papers were presented that dealt with:
- dispute resolution of commercial litigation in the international arena – this was of particular relevance to China’s recent membership to the WTO
- history of alternative dispute resolution in China and Australia
- the proper balance between the courts and ADR – this dealt with the issues of the rule of law, the role and efficiency of courts vis-a-vis ADR, governments’ involvement in ADR and sanctioning of its outcomes and possible extension of ADR to criminal law
- different models and procedures used in dispute resolution.
The Commissioner delivered a paper on “The Australian Experience with Tribunals, Commissions and Ombudsmen”, which focused on the complaint handling function of the Commission.
Attendance at the 1st International Congress on Child Migration
In late-October 2002, the Commissioner visited New Orleans to deliver a keynote address to the above congress. In the speech he concentrated on international trends in child movement, both voluntary and involuntary, and the need for international cooperation. The congress called upon the UN to establish an international day of Child Migration.
The Commissioner was also invited to join the Scientific Committee responsible for assessing the proposed papers and overseeing the format of the congress.
A selection of public addresses made by the Human Rights Commissioner during 2002–03 are listed below and are available online at www.humanrights.gov.au/speeches/human_rights/
Statement by Dr Sev Ozdowski, 59th Session of the Commission on Human Rights, Geneva, Switzerland, 14–17 April 2003.
Long-term detention and mental health, 2nd Public Health Association of Australia “Incarceration Conference”, 2 April 2003 at the Mercure Hotel, Brisbane.
A Charter of Citizen’s Rights – Will this benefit Multiculturalism in Australia?, 2002 FECCA National Conference on Setting the Agenda for a Multicultural Australia, 5–7 December 2002, Canberra.
The Australian Experience with Tribunals, Commissions and Ombudsmen, Sino-Australian Seminar on Alternative Dispute Resolution and The Modern Rule of Law, hosted by the Chinese Ministry of Justice in Beijing, PRC, 20–22 November 2002.
The rights of the child and international human rights law, 1st International Congress on Child Migration, Hyatt Regency, New Orleans, 29 October 2002.
Long-term detention and mental health, 1st iMHLP International Mental Health Development Conference: ‘Developing Leadership for Mental Health’, Rydges Hotel, Victoria, 18 October 2002.
The human rights of vulnerable children in Australia, 9th National Conference of the Association for the Welfare of Child Health: “Healthy Justice for Children and Young People”, All Seasons Premier Menzies Hotel, Sydney, 10 October 2002.
Waverley Council’s Refugee Week, Waverley Library Theatrette, Sydney, 9 October 2002.
Asylum Seekers, meeting of the Great Lakes Rural Australians for Refugees Group, Forster High School, Forster, NSW, 2 October 2002.
Lessons from the UN Special Session on Children, Association of Children’s Welfare Agencies Conference, Swiss Grand Hotel, Bondi, NSW, 3 September 2002.