"A Charter of Citizen's Rights - Will this benefit Multiculturalism in Australia?"

Keynote presentation given by Dr Sev Ozdowski OAM, Human Rights Commissioner at the 2002 FECCA National Conference on "Setting the Agenda for a Multicultural Australia", 5-7 December 2002, Canberra

It is a pleasure to be able to address you today and I would first like to acknowledge the Ngunawal people, the traditional custodians of the land on which we stand and a reminder that Australia's cultural traditions began at least 40,000 years ago.

Before commencing I would like to take a minute to reflect on what the recent tragedy in Bali meant to the victims and especially their families.

Next let me assure you that today I am not here to speak about my Children in Immigration Detention Inquiry, although I have just come from a very interesting four public hearing involving DIMIA and ACM on this subject, but rather to talk to you about the subject of an Australian Charter of Citizen's Rights and multicultural Australia.

And on that topic I would like to acknowledge the pioneering work performed by the ACT in the general area of a Bill of Rights.

The connection between an Australian charter of rights and multicultural Australia can best be summed up as follows: minority groups arguably have a harder time enacting change thru Parliament, because their numbers, of necessity, don't translate into a majority of votes. Therefore they will more commonly look to the legal system for protection and the legal system needs a "menu" so that it explicitly knows which rights are capable of legal protection.

The Federal Government's recently legislated package of "Anti-Terror Bills" and especially the foreshadowed "ASIO Bill" has also focussed the need for close attention on these issues as never before. Prior to September 11, the issue, for me, fell into the category of useful but not essential. With the Australian Government getting even more serious about "the war against terrorism", as evidenced by this legislation, I feel that it now falls into the category of absolutely vital.

For many years I was of the view that Australia with its parliamentary democracy, its independent judiciary and a free press, provided most of us with an adequate level of human rights protection; a model for others to follow. Like many of you here today, I was active on arrival in this country, in remitting information back to Poland about Australia's democratic traditions and institutions. A practice which undoubtedly benefited our various mother countries as they slowly emerged from undemocratic systems of government and took their first hesitant steps down the democratic road.

But in recent times I have changed my position. I now think that Australia's democratic safeguards need, shall I say, "freshening up" if we are to retain a position as one of the freer countries of the developed world.

Over the last few weeks we have read accounts of ASIO inspired raids on the homes of people who fall into the category of a minority group within Australian society. There have also been calls for the banning of a style of dress which also falls into the definition I have just used. If nothing else, these events highlight the importance that attaches to the rights of minority groups being well documented and clearly understood, especially by the majority group. This is an important issue for multicultural Australia.

Let me first paint you a general picture about "rights" in Australia.

What do most Australians think about their current human rights? The answer to that question is simply: not very much!! When I address different community meetings across Australia I am often being asked basic questions about our human rights. Some people do not even know that we have a Constitution or that it includes a few basic "human rights", namely: s.80 which provides for a jury trial in the State where the alleged Federal offence took place; s.116 denies federal legislative power with respect to religion; s.117 protects residents of one State from discrimination based upon residence, in other States; s.41 which seems to imply the right to vote, but still awaits final High Court confirmation.

Then there are the two "economic" rights, s.92 freedom of interstate trade and s.51 on payment on just terms for Commonwealth acquisitions of property. Hardly an inspiring list!!!

No mention for instance of basic freedoms such as freedom from arbitrary arrest or detention, right to a fair trial or due process, freedom of association or equality of all persons before the law.

On occasions when I move around our community I am told that human rights are un-democratic and even un-Australian, because they are imposed on us - in violation of Australian sovereignty - by the United Nations, which in turn is portrayed as an unaccountable world government.

Very few Australians know that our country is usually involved in drafting any UN human rights instrument; that each convention needs to be signed and ratified; and that, even then, it has no domestic legal status unless conferred by specific domestic legislation.

However despite the lack of detailed knowledge of their human rights, Australians have a very strong sense of social justice. We have a "fair go" culture. Australians know what is "fair" and how the national cake should be divided.

And those aspirations have been confirmed by legislation since Federation.

In fact, Australia's particular achievement has been the development of a comprehensive system of protection of economic and social rights. Its foundations were put in place well before the Bolshevik revolution and long before we ratified the UN Covenant on Economic, Social and Cultural Rights in 1975.

Economic rights for adult European males (subsequently partially extended to women but excluding indigenous Australians for many years) were strongly supported with the introduction of the conciliation and arbitration system in 1904 and sealed by the "Harvester Decision" of 1907, guaranteeing a basic wage.

These examples provide evidence of Australia's historical capacity to box above its weight, especially in the development of international rights and modelling of world's best practice.

Since the 1970s, incorporation of international human rights into domestic legislation has focussed on measures to ensure greater opportunity for social equality. By now we have federal statutes prohibiting racial, sex and disability discrimination and recently the Government has proposed to develop age discrimination legislation.

Australians however do not have a similar focus on civil and political liberties.

As a result, previous attempts to introduce a Bill of Rights to protect these values have failed completely. A recent NSW parliamentary committee inquiry into the issue went even one step further, by saying that a Bill of Rights would positively harm public good!!

And there are good historical reasons for such a culture. The Australian Federation was not forged in a war of independence or revolution and white Australians have no history of struggle against massive human rights abuses.

Unlike the French and US constitutions which were formed by their citizenry with an eye to restricting the power of government, so as to give the maximum amount of freedom to the people, Australian states were bought into existence, literally, by Government action.

Nations established in violence or ones who've experienced long periods of oppression have been much more likely to entrench those hard won liberties in their legal system. Many of you here today have either had first hand experience of this or have learnt about it from family stories.

But that is not the experience of white Australia. Gossip from the background to the wheeling and dealing, that led up to the creation of the Federal Constitution, even has it that some of our 'founding fathers' were opposed to a statement of individual rights, because of the potential for racial equality consequences!!

The Human Rights and Equal Opportunity Commission Act itself distinguishes between civil/political rights and equality rights. There is a stark contrast between remedies available in race, sex and disability discrimination versus remedies in civil and political rights. The courts can adjudicate on equality complaints when the Commission's conciliation fails. But no court can award a remedy to civil and political rights violations under the Human Rights Act.

To sum up, the Australian contemporary human rights culture is strong in terms of protection of equality rights but weak on civil liberties. In fact, our relative neglect of civil and political liberties puts us at odds with other first world countries with which we traditionally compare ourselves.

For example, the legal protection of individual liberties in the USA is considered superior because of its constitutional Bill of Rights. It has been the subject of many books and films. Similarly the European Union- it is a world leader in protection of human rights.

And there is a clear trend toward better protection of civil liberties in other first world countries. Canada adopted its Charter of Rights and Freedoms in 1982 and New Zealand its Bill of Rights in 1990.

Even Britain adopted a Human Rights Act in 1998, despite the previously held view that the common law adequately safeguarded human rights.

Having said that, I am also very aware that many undemocratic countries have Constitutions which boast, on paper, their strong adherence to civil rights principles. The former Soviet Union was one such. The reality is that "civil rights" enforcement via the KGB is not quite the same as enforcement by the US Supreme Court!!!

The lack of adequate legislative protection of civil liberties in this country is now bringing a range of negative consequences to Australia. To start with it may result in the erosion of existing civil liberties. Lack of a statutory statement means there is no yardstick for measurement. It makes both enforcement through the courts and civic education difficult. It allows executive power to grow.

The effect of this was particularly evident in the recent examination by the Senate's Legal and Constitutional Legislation Committee of the six "anti-terrorism bills. Imagine how much easier it would have been to gauge the likely effect of those Bills had there existed a legislative benchmark of "civil liberties" against which measurement could be made.

Another example: the rule of law is an important foundation of our society. It means that disputes are determined under the law by independent judges. It provides for the supremacy of law over administrative actions. But the legislation passed by the Parliament in the context of the Tampa crisis abolished judicial review of many DIMIA decisions under the Migration Act. So some asylum-seekers are not permitted their day in court.

My recent inspections of Australia's remote location immigration detention centres at Port Hedland, Curtin and Woomera tells me that elimination of regular judicial oversight of administrative detention, especially where it is long-term, is dangerous. In the year since my last visit to these centres, the mental deterioration of those people is marked and the atmosphere is more like that of a mental hospital than an immigration detention centre. The quicker they are shut down the better.

The lack of legislation defining our civil liberties means our courts are left with developing common law in this area. For example, the Australian High Court in 1995 in the Teoh case said that public officials must take Australian ratified rights under the United Nations Conventions, which are the closest thing we have in this country to a checklist of civil liberties, into account, where the convention right is not clearly excluded by domestic law.

And certainly it is fair to say that the "common law" has in recent times evidenced capacity to change as the nature and values of society change. Precedents which conflict with contemporary social values have been more readily overruled.

But the courts should not have a determining role in public policy beyond their responsibility to interpret the laws as laid down by Parliament. Therefore, it would be more satisfactory if this process was developed by Australian-own legislation, drawn from an appropriate mix of UN Conventions and reflecting the Australian experience.

In time this would produce a body of Australian human rights jurisprudence which would influence international thinking on these subjects. Another the key issue for Australia, however, is whether our lack of focus on individual freedoms suppresses Australia's competitiveness in a globalised economy? There is an enormous body of evidence that the importance of the individual in any State must never be underestimated, especially in economic terms.

A current example is the most successful contemporary world economy, the US. It is characterised by a minimum of State interference. Individual freedoms are encouraged, giving rise to "can do" capacity, innovation and collective reward. Protections are provided by the US Constitution with its Bill of Rights which allows individuals aggressive pursuit of their rights through legal action a la Erin Brockovich. However as the Enron and WorldCom debacles illustrate, a very strong regulatory oversight regime is also essential.

In the case of my personal experience, the total inability of the communist state to utilise individual enterprise, innovation and aspirations was undoubtedly one of the more significant causes of its failure. In other words, individual enterprise and innovation are one of the key factors in the history of economic development. To put it simply, they tend to flourish in a culture where the rights of the individual are respected and capable of self initiated enforcement. When focussing on Australia, one could say, that by and large up until the late 1960's, the "Government as big provider" system referred to earlier in my speech (as compared to individual rights) worked reasonably well for most white Australians.

But the last 30 years have produced massive structural changes, in the search for greater economic efficiency, in the way business, both domestic and international, operates. Australians find themselves confronting situations where individuality has assumed far greater importance. Just think about labour market changes alone. When I joined the public service in 1980 I joined it for life. Wage centralisation was paramount. Today nobody works in the public service for life any more and most are on individual performance based contracts.

At the same time, traditional protections have weakened; trade union membership is declining. Governments of all persuasions are vacating the traditional "big brother" roles and pulling back to basic service provision of health, education and law and order.

Also some of the other key stakeholders are now performing their roles in a different manner.

The dominance of the major political parties and the rigidity of their discipline undermine the prospects of individual protection at the parliamentary level.

The judiciary is effective BUT limited as Justice Brennan said in Mabo: "in discharging its duty to declare the common law of Australia, this court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency."

The media, using a "squeaky wheel" approach is still capable of championing individual causes. This is because they have the ability to mould public opinion and impact on decision makers. But change via media is necessarily a haphazard approach to public policy and to the protection of human rights.

This loss of traditional protection from government is not well understood by many Australians and yet they feel threatened by the changing trends. To them economic rationalism means loss of control over individual destiny. This partly explained the attraction of Pauline Hanson - who seemed to articulate the fears of many ordinary Australians, but failed to provide answers.

So I put it to you that there is a "civil liberties black hole" at the heart of this issue.

All systems need harmony to produce optimal outcomes and harmony requires checks and balances. It is evident that in contemporary Australia, the capacity for individuals to protect their own rights has, in time, become severely depleted. This fact is not widely understood, but we all feel instinctively less secure. The result is that we become change and risk averse as we try to stop things spinning more and more out of our personal control.

The nub of the argument is that governments have been so busy dismantling the old ways in their drive for efficiency, that they have neglected to erect appropriate new safeguards for us as individuals.

And yet there is data to hand that suggests that Australians are growing more comfortable with the notion of civil rights and freedoms. In opinion surveys over the last decade or so, we have overwhelmingly agreed on various rights as fundamental. Some of them received 100% endorsement including freedom of political speech and freedom from arbitrary arrest.

Further, more than half of those surveyed believed that their rights are NOT well protected against unfair government action.

It is also encouraging to read data that public opinion favours 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. It is possible that individual Australians are now worrying more, that majority generated laws, even in a democracy, are not always necessarily "JUST". Minority groups and individuals can be unfairly oppressed.

So, where do we go from here? One possible safeguard would be to legislate for our own Australian Citizens' Charter, in the same way most Australian corporations, even banks, have done with "Customers Rights". It simply makes good business sense.

There is a real political opportunity here for Australians to be re-empowered by these rights. As a result people will have less to fear from the increasingly interventionist executive arm of Government, whatever its political colour. I am suggesting that these rights would provide an opportunity for Government to re-engage with the Australian people in a tangible way.

So to sum up, I believe an Australian Citizens' Charter would assist people by replacing some of the government protections that previously existed, but have now disappeared. This may then encourage us to react more pro-actively to the global economic changes that are engulfing us all. This could have profoundly positive economic implications for individual Australians.

Of course issues such as the Tampa asylum-seekers incident, September 11, Afghanistan and now Bali have added complexity to this issue. Australians who believe in basic human rights are also naturally concerned about their security.

The proposed curtailing of personal freedoms explicit in the Government's "war on terrorism", which broadly I think, we accept the need for, makes a "citizens' charter even more essential. In the absence of a legislated list of existing rights, it is difficult to measure what we are being asked to give up when the Government proposes such security measures. We have no easy way to assess the "proportionality" of their proposals.

But I must sound one final cautionary note. Recent overseas experience, such as the US and England, in their anti-terrorist laws post September 11, are more destructive of individual rights than in Australia. This is despite those countries having a Bill of Rights. So I am not suggesting that we here present today could totally relax, if only Australia had a charter of rights.

But multicultural Australia has much to offer on this issue. Many of you have first hand experience of regimes which engaged in systematic abuse of the human rights of minority groups, often using the excuse that it was necessary in order to protect the majority. We should be prepared to speak about those experiences so that our fellow Australians, who mercifully, have been largely spared this kind of behaviour can make a more informed judgement, on the important issue of a Charter of Citizens' Rights.

Last updated 16 December 2002