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Human Rights in Contemporary Australia: Dr Sev Ozdowski OAM (2001)

Rights Rights and Freedoms

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

Introduction

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.

The Constitution

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).

First Acts

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:

1. International
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.

1. Discrimination

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.


Footnotes

1.
The 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 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

4.
Ex parte H V McKay (1907) 2 CAR 1.

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.

6.
Re Cattle Industry (Northern Territory)
Award (1966) 113 CAR 651.

7.
Koowarta v Bjelke-Petersen(1982)
153 CLR 168.

8.
Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR
106.

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.

11.
House of Representatives Hansard, 5 April 2001, page 25680.

12.
Social Science Data Archive, Rights in Australia 1991-1992: National
Household Sample (1992, ANU, Canberra).

13.
Social Science Data Archive, Rights in Australia 1991-1992: National Household
Sample (1992, ANU, Canberra);

14.
Australian Election Study (1998, ANU, Canberra);Australian
Constitutional Referendum Study (1999, ANU, Canberra).

15.
Social Science Data Archive, Rights in Australia 1991-1992: National Household
Sample (1992, ANU, Canberra).

16.
Social Science Data Archive, Australian Constitutional Referendum Study
(1999, ANU, Canberra).

17.
Social Science Data Archive, Australian Constitutional Referendum Study
(1999, ANU, Canberra).

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.

23.
Ibid.

24.
Social Science Data Archive, Rights in Australia 1991-1992: National Household
Sample (1992, ANU, Canberra).

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