President speech: Human Rights Consultation Gala Dinner

Human Rights Consultation Gala Dinner

Keynote speech

The Hon Catherine Branson QC

President, Australian Human Rights Commission

Atlantic, Docklands, Melbourne

Friday 31 July 2009

Opening remarks

May I begin by acknowledging the traditional owners of the land on which we meet, the Wurundjeri people, and pay my respect to their elders past and present.

I don’t think that many of you will be disappointed to learn that I have decided not to address the topic suggested to me for this address.  Not because I don’t think that the topic is a critically important one – of course it is – but because I doubt that many in this audience are unfamiliar with my views about how a Human Rights Act might make for a better Australia. For this reason I have decided not to talk about the gaps in human rights protections in Australia. I am not going to rehearse again the argument that it is perfectly appropriate for Australian courts to have a role in determining sensitive issues, and that, yes, there is a lot to be said for judges being unelected. Tonight, I am pleased not to be debating anyone, and particularly anyone from NSW Labor Party. It is not that I am vacating the field – I don’t doubt that I will have many more detailed and heated conversations about human rights before the end of the year – but tonight I thought we could all take a break. Even those passionate about achieving social change are occasionally entitled to a well-earned rest.

So tonight I thought that I would instead, after some brief reflections on the speech which we have tonight been fortunate to hear from Justice Yvonne Mokgoro, offer some reflections on the National Human Rights Consultation process. As we are enjoying a gala dinner (something that some of us don’t often do) let’s put aside for a short while arguments about the best way to protect and promote human rights in Australia and pause to celebrate what I see as the very significant achievements of civil society this year.

It has indeed been a privilege to hear from Justice Mokgoro about the protection of human rights in South Africa. Although Justice Mokgoro did not say so, what she has said reinforces that we in Australia can, and should, do better. When we talk about protecting human rights, we are talking about improving the daily lives of numerous people. We know that in Australia the human rights of many vulnerable people are not adequately protected. I suspect that the majority of us at this dinner have been making this point repeatedly over the last six months.

There are several important lessons that I think that we in Australia can learn from the South African experience. By way of background to the first of those lessons, if sources that I identified on Google are correct, in May ’09 South Africa had 23.5% unemployment which meant that 4.18 million individuals were out of work. By comparison Australia’s latest unemployment figure was 5.8% which translates to 668,400 people out of work. That is, of course, 668,400 too many – but to those who think that the economic crisis means that human rights should be a lesser priority in Australia, I say lets look to, and take inspiration from, the South African constitution as interpreted by its Constitutional Court. The decisions of that court show how a human rights instrument can provide a structure for fair and sound decision-making in the interests of the population as a whole when public resources are far from optimal.

Secondly, we are well reminded by what Justice Mokgoro has said that it is economic and social rights, the rights to access adequate housing, health and education that have the greatest immediate impact on the daily lives of most people. It is not that human rights, including social and economic rights, are not also for the more privileged – of course they are (as we say at the Commission, human rights are for everyone, everywhere, everyday). But in a relatively well-functioning democracy such as that we are privileged to live in, some will have a considerably greater capacity to influence public decision-making in their favour than others. Stories from South Africa remind us that it is not only possible, but imperative to the lives of many vulnerable people, that they enjoy economic and social rights. If they don’t have access to housing, adequate education and a decent standard of living, their civil and political rights will be a rather low priority from their point of view and, in any event, difficult to access.

Thirdly, the protection of human rights sometimes involves hard decisions. These decisions impact on people. This is as true in Australia as it is in South Africa. Rights do need to be balanced and hard decisions do need to be made.

Finally, we should remember that ensuring the best protection of human rights is an ongoing process. I was interested to hear the Judge talk about the realisation in the Constitutional Court that it would need to establish ways of monitoring the implementation of court orders enforcing economic, social and cultural rights. We also will need constantly to monitor and seek to improve whatever mechanisms we adopt to better protect human rights in Australia. 

Australia is at an interesting stage in what I believe is a journey towards better rights protection. Tonight there is much to celebrate, but we should also remember that we have a long way to travel yet.

Greater access to democratic participation

So let’s celebrate the achievements of the last six months.

We have just been part of what may well have been the most successful public consultation process held in Australia since white settlement. The conduct of this consultation has been a fine example of democracy in action. It has also demonstrated the new forms of democratic participation that modern communication technologies have made available to us.

It seems that the National Human Rights Consultation has achieved engagement with the community to a degree which is unprecedented.

First, it has sought to create public fora of every size and shape imaginable. There have been hearings in local community halls as well as hearings in the Great Hall of Parliament House. The Consultation has literally gone where no other consultation process has gone before. The Committee has visited Broken Hill, Coober Pedy, Tennant Creek, Ipswich, Wodonga and Kalgoorlie. It has also visited Aboriginal communities like Wadeye, Yarrabah and Palm Island. The Committee even paid a visit to the Penrith Panthers Club.

The Committee members have held an astonishing range of meetings, there has been a telephone survey about human rights protection and an online discussion forum with the odd prompt from Father Brennan.

Importantly, there was an online portal through which submissions of any length about any human rights issue could be made. As you may know, an astounding 20,000 submissions to the consultation were generated through the efforts of GetUp and Amnesty International.

The Consultation Committee has heard not only from human rights advocates, academics and the legal fraternity but also from a broader constituency.

In short, the Australian community responded to this consultation.

Forty thousand written submissions and 66 community roundtables in 52 locations across Australia, all within six months – that’s no small feat.

The Consultation Committee has received post cards with tick boxes and, of course, extensively researched, compellingly argued and carefully formatted submissions which one refrains from printing out of respect for the world’s forests. There have been opinion pieces, editorials, countless letters and extensive debates in newspapers of every size and political persuasion. There has been streaming of videos on YouTube, not to mention an inundation of wall posts and status updates on Facebook and Twitter.

I was very interested to observe Amnesty during the public hearings held in Canberra in early July. Amnesty staff and volunteers were posting blurbs and status updates directly to Twitter and Facebook; they were video-recording interviews with speakers and posting them straight to YouTube. There were bloggers on various discussion boards whose comments were being published in real time. This really is participative democracy in action.

As we all know, there is significant controversy about how best to protect human rights in Australia. Those who oppose a Human Rights Act have robustly engaged in the debate generated over the last six months. While the frequent repetition of a couple of fallacious arguments has been frustrating, I have been encouraged by this fervent interplay of divergent views because it enriches our democracy.

Marginalised views heard

The consultation process has also captured a great diversity of views on human rights from across Australia. Importantly, the Committee has heard from non-lawyers and non-academics, particularly in response to the first two questions in the Committee’s Terms of Reference:

• Which human rights should be protected and promoted?    

and

• Are these human rights currently sufficiently protected and promoted?

These responses ranged from impassioned comment on issues as broad ranging as the situation of Aboriginal and Torres Strait Islander peoples throughout Australia, to that of women in prison, to the importance of protecting the right to trial by jury.

The Australian Human Rights Commission ran workshops across the country to encourage community participation in the consultation. I participated in several of these workshops which were being held in Adelaide. At the Adelaide Day Centre for Homelessness I met individuals whose stories I found disturbing.

I met homeless women who were drinking in the afternoons because the Drug and Alcohol Rehabilitation Centre was the only place they knew of where they could sleep in safety.

I met a homeless woman whose child had been out of school for some weeks because she found that without a residential address she could not enrol her child at school.

I met a former farmer who had lost his struggle to keep his farm because he had suffered a serious accident and there was no health care available to him within 100 km of the farm.

The role of the Australian Human Rights Commission

The Australian Human Rights Commission is currently reflecting on how our work can be more relevant in today's Australia, on how we can operate more coherently, flexibly and responsively to human rights issues as they emerge. We have greatly appreciated the opportunities for collaboration and coordination with a wide range of organisations and individuals that have arisen during the consultation process. We look forward to deepening these collaborative relationships over the months to come.

Do we need change?

My suspicion when the consultation process started was that the high profile commentators who so vehemently oppose a human rights instrument for Australia did not speak for the majority of Australians. I am now confident that this is the case.  This is not to say that no well-meaning person has concerns about an instrument of this kind, or that no plausible arguments can be mounted against such an instrument. As is sometimes said in other contexts, I have friends who do not support a Human Rights Act for Australia. But it is important to remember that the issue is not whether a Human Rights Act would take governance in Australia beyond criticism – to foreshadow something to which I will refer in a minute, the idea of the perfectly functioning democracy is a mirage. To reject an initiative simply because it will not cure all ills, or because the resultant power balance between the three arms of government will not be perfect, is not very sensible. One thing that I believe the national consultation has revealed for most to see is that our present system of governance is far from perfect. In short we can, and should, do better.

The journey

As I have said, we are currently in a hiatus, awaiting the Committee report. I hope that this will give many of you the chance to take a well-earned rest. However, I fear that there remains much work to do.

I have no doubt that, once the report is released, we will need to redouble our efforts to persuade our Parliamentarians to take concrete positive actions to ensure that human rights are better protected in Australia. I do not think that I have made my last argument for a Human Rights Act for Australia. There will be much discussion about this and many other issues over the months and years to come. Those of us committed to positive social change through better human rights protection will need to continue working with the broad community, providing education about human rights, and showing how in Australia we can do better.

Conclusion

Sir Winston Churchill once said:

‘Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.’

Democracy is the ‘least worst’ form of government that we can have – and, because it is, it is important that we value it and respect its processes and their outcomes.  But this doesn’t mean that the way in which it works cannot be changed for the better. As a direct result of the National Human Rights Consultation the door to democratic participation in this country has been opened to include many whose voices are not ordinarily heard. This is a good thing – not only for democracy but also, I believe, for the better protection and promotion of human rights in our country.

We have had collective successes during the consultation process. I think that we can feel confident that when it comes time to respond to the Brennan report, and into the future, we can build on those successes. We will need to because we can expect very powerful voices to be raised in opposition to an overarching human rights instrument for Australia. Our forward journey will be neither short nor easy – but this year we have made an excellent start. I congratulate everyone involved.

Thank you.