In defence of human rights
Address by President John von Doussa to the University of New South Wales Law Society’s Speakers’ Forum
24 August 2006
I would like to acknowledge that we are meeting on the traditional country of the Gadigal people of the Eora nation and pay my respects to their elders past and present.
In defence of human rights
Human rights suffer from what the professionals’ term a PR problem. Human rights are sometimes seen as anti-democratic, a sop to minorities. In debates about national security, human rights are often cast as irrational indulgences that jeopardise our security, preserving high principle at the expense of common sense and safety.
Little wonder that, at a time when the threat of terrorism is terrifyingly real, people may be tempted to view human rights as expendable. After all, as the United Nations Secretary-General Kofi Annan observed, ‘terrorism has a nasty habit of causing the whole spectrum of opinion in society to lurch in a repressive direction’.
What I want to do today is explain why human rights matter and why now – perhaps more than any other time – we need to defend human rights. There are three propositions in that sentence:
- human rights matter;
- they matter more than ever now; and
- we need to defend human rights.
Let me start with the first proposition. Why do human rights matter? Perhaps the first thing to say is that human rights are not luxuries. Human rights are the basic minimum standards we must uphold in order to respect the inherent dignity and value of human life.
These rights – the right to a fair trial, the right not to be subject to torture, the right to life – are objective legal standards that form ‘the bedrock of dignity and democracy that make our societies worth protecting’.
Yet human rights can not simply be described as technical legal creatures. Human rights simultaneously articulate the basic minimum legal standards that all societies must meet and reflect a deeply moral vision of the type of world we want to live in. The concept of human rights is based on a common recognition of the importance of fair treatment for all and the belief that people should be able to live free of violence, discrimination, vilification and hatred.
This vision is articulated in the Universal Declaration of Human Rights which states that the ‘recognition of the inherent dignity and of the equal and unalienable rights of all members of the human family is the foundation of freedom, peace and justice in the world’.
While some might suggest that human rights have much to do with international law but little relevance to life in Australia, the reality is human rights lie at the heart of our liberal democratic traditions. Not only, has Australia ratified important international human rights standards, it has played a crucial role in developing human rights standards and promoting human rights in other countries. Our federal discrimination laws are designed to give effect to Australia's international human rights obligations.
So it is impossible to talk about Australia’s protection of human rights without talking about the system of international human rights. Contrary to the cult of cultural relativism, I believe one of the chief virtues of human rights is their universal character.
In an increasingly global society human rights offer us a unifying vision of respect for life and liberty – common values with the potential to traverse national, cultural and social divides.
Of course, the true test of our commitment to human rights does not lie in our aspirations but in our actions. It lies in the everyday detail of our laws. Sometimes it is the words of the laws that are the problem. More often it is simply what is left out.
And so I arrive at my second proposition: human rights matter – especially now.
The Australian Government has consistently maintained that Australia has a strong human rights record. But the fact we are proud of our foundations should not mean we avert our eyes from the cracks in the pavement.
Elizabeth Evatt has observed that ‘that even in a generally just and fair society the broad brush of legislation and the extensive power of the executive may rise rough shod over an individual or a minority’.
In recent years a series of events, including the introduction of extraordinary new counter-terrorism powers, and a High Court decision upholding the legality of indefinite detention of asylum seekers, have revealed the weaknesses in our human rights armoury.
Today, I want to reflect on the adequacy of human rights protection in Australia by talking about three pressing human rights issues:
- balancing national security and human rights principles;
- Australia’s treatment of asylum seekers; and
- the problems being uncovered by HREOC’s inquiry into discrimination against same-sex couples.
At first glance it may appear that these three subjects share little common ground. But these issues all raise important questions.
- Do existing processes adequately integrate human rights principles into the policy and law making process?
- Do we have adequate mechanisms to test the human rights compatibility of our laws?
These questions lead to my third proposition – we must defend human rights. The best way to defend human rights is to make sure they are adequately protected. In a new century, with new challenges, I believe we need to think about new ways to defend and preserve human rights. This might involve a charter of rights. Or it might not. As Professor David Feldman recently observed:
The beneficial effect of human rights on public decision-making does not depend on judges. Using human rights is something that politicians, parliaments and public servants can and should do for themselves, for their own benefit and that of the democratic process, regardless of anything the judges may be doing in parallel to them.
If we are serious about providing effective protection for human rights we shouldn’t just talk about the role of the judiciary in checking of the human rights compatibility of government action we should talk about the role of parliament in creating human rights compatible legislation.
Defending human rights in the age of terrorism
First, I would like to talk about the need to strike the right balance between protecting national security and preserving human rights. This topic isn’t much of crowd pleaser at the moment. The images of the senseless destruction wrought by terrorist attacks have been hardwired into our collective consciousness. The recent plot to blow up ten US bound planes over the Atlantic was another front-page reminder of how serious, how devastatingly devoid of humanity, the terrorist threat is.
Last week the decision of the Victorian Court of Appeal to quash the convictions against Jack Thomas for receiving funds from a terrorist organisation and possessing a falsified Australian passport provoked fierce debate about whether the decision was a moral miscarriage or an act of fidelity to well worn legal principles.
Before I return to the Jack Thomas case, I think it is important to explain that I am not one of those who argue that counter-terrorism legislation is unnecessary.
Concerns about terrorism are patently legitimate. Every person has a fundamental right to be kept safe from violence and the Government has both the right and the duty to take action to guard against the worst case scenario.
However, I am concerned that in the age of terrorism there is a tendency to treat human rights principles as optional extras or worse, moveable obstacles on the road to a safer, more secure society.
In debates about the human rights compatibility of counter-terrorism legislation one often encounters the argument – often expressed in florid and emotionally charged language - that bad men have forfeited their rights. It is easy to have some sympathy for this view.
Yet we live in a society where the presumption of innocence, the right to a fair trial, the right not to be tortured and the rule of law are the foundation stones of our democracy. These rights apply to alleged murderers, paedophiles and, yes, even terrorists. To abandon our belief in these rights is to throw away the prize possessions of democracy and a free society. To quote from the 2006 Secretary General’s Uniting Against Terrorism Report:
Only by placing counter-terrorism within a rule of law framework can we safeguard the internationally valued standard that outlaws terrorism, reduce conditions that may generate cycles of terrorist violence, and address grievances and resentment that may be conducive to terrorist recruitment. To compromise on the protection of human rights would be to hand terrorists a victory they can not achieve on their own. 
Located just outside the territorial jurisdiction of the United States Courts, Guantanamo Bay sends the wrong message to the world about what we in the West mean when we talk about justice. Guantanamo Bay is truly a legal black hole and, irrespective of the guilt or innocence of those detained there, it should offend all those who believe in rule of law and right to a fair trial.
The ongoing detention of David Hicks – who has been held by the US at Guantanamo Bay since January 2002 - is now widely acknowledged to be grossly unfair.
In my view, commentators’ who protest Hick’s innocence, or make the case that he is now a changed man, have missed the point. What is important is that his guilt or innocence is determined in accordance with the law and consistent with that bed rock of a civilised society – the right to a fair trial.
Article 9 of the ICCPR clearly sets out the minimum standards of a fair trial:
- No one shall be subject to arbitrary detention;
- A person who is arrested should be promptly informed of the charges laid against him;
- A person arrested or detained on a criminal charge should promptly be brought before a judge or a person empowered by law to exercise judicial power.
- Anyone deprived of his liberty should be able to challenge his detention in a court of law.
The plight of David Hicks clearly violates these basic principles.
Recently, the US Supreme Court held that military Commissioners established by the President to try Guantanamo Bay detainees were not of the type authorised to be set up by Congress. Congress has only authorised the establishment of military commissions that comply with the common law of war and common article 3 to the Geneva Conventions. Quite simply, Guantanamo Bay did not comply.
Significantly, in the course of its findings, the Court expressed its view that the right of an accused to “be present for his trial and privy to the evidence against him, absent disruptive conduct or consent” is “indisputably part of customary international law”.
There is popular misconception that international human rights laws are inflexible, esoteric principles which hamstring government efforts to effectively respond to changes in Australia’s threat level.
This misconception is just that – a misconception. International human rights law permits protective actions to be taken by states but demands that those actions be necessary and proportionate to meet the gravity of the threat. This approach was adopted by the Government-appointed Sheller Inquiry, who accepted HREOC’s submission, that counter-terrorism laws must be proportionate to the aim of achieving national security.
In Australia we have now seen three major packages of new counter-terrorism powers. Most recently, in the aftermath of the home-grown terrorist attacks on London, the Government introduced the Anti-Terrorism Bill (No.2)) 2005. The Bill included provisions for preventative detention orders, control orders, and special police powers to stop, search and question people.
HREOC’s main concern about the Bill was the absence of adequate remedies for review of the new extraordinary powers the Bill was to give to the Executive. As a result of the public discussion and media attention, the government announced amendments allowing greater judicial involvement and merits review of the most invasive measures.
However, finding the balance between human rights and national security is an ongoing challenge. Most recently, the decision in the Jack Thomas case has been cast as a setback in the war on terror. This case warrants comment. Behind the hyperbole, this case involves a routine application of long established principles relating to the admissibility of unfair confessions in a criminal trial.
During the debate over the Anti-Terrorism Bill (no.2) (2005) it was taken for granted that if an alleged terrorist was ultimately charged with a terrorist offence, the charge would be determined according to the well-established processes of the criminal law. If a consequence of the Thomas prosecution is a proposal to challenge the law of evidence governing criminal trials, we will be moving into an entirely new arena of debate, one that so far has been treated as part of the fundamental requirements of a fair trial according to law.
One other observation I would like to make is that while I understand that the public have a keen interest in those accused of counter-terrorism offences, it is for the courts – not the media – to determine the guilt or innocence of those on trial. While media can speculate endlessly about what Jack Thomas – or for that matter David Hicks – may or may not have done – ultimately, as the Prime Minister said yesterday, “it is for courts to decide guilt, it is for courts to hand down the verdicts, and it is for courts to deal with appeals”. 
Ultimately, the best way to reconcile the human rights and counter-terrorism laws is to make sure there are adequate checks and balances to guard against error and illegality. Some of these checks and balances are woven into the established principles that govern the admission of evidence in criminal trials.
As I observed earlier, so far new counter-terrorism laws have not dramatically changed the way courts conduct criminal proceedings. However, one of the disturbing trends of counter-terrorism laws has been the expansion of executive decision-making without corresponding checks and balances – for example, the power to proscribe terrorist organisations is not subject to merits review or judicial oversight. In a recent speech Chief Justice Gleeson observed:
the development in the Australia community of a cultural expectation that those in authority are able and willing to justify the exercise of power is one of the most important aspects of modern public life.
His Honour added that ‘decisions affecting human rights, and above all personal liberty, are quintessential examples of cases where fairness of process is itself part of the outcome to be expected from good government’.
When we are investing extraordinary new powers in the executive – power that have the potential to infringe fundamental human rights – it is vital that we insist that these powers are accompanied by review mechanisms to act as safeguards against error and abuse. This means not just recognising the need for judicial review – to check that the decision is not infected by legal error – but merits review to check if the facts on which the decision was made were right. The reason why we need these checks and balances is simple – ‘mistakes and human errors inevitably occur’.
Australia’s treatment of asylum seekers
I would now like to turn away from debates about counter-terrorism, to another headline issue– Australia’s treatment of asylum seekers.
In light of recent reforms to the treatment of asylum seekers – including the removal of children from immigration detention - it was disappointing to see the Government introduce the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 to process all unauthorised boat arrivals offshore.
The Bill was basically an extension of the ‘Pacific Solution laws’ that were passed in the wake of the HMV Tampa arrival in 2001. Under this regime unauthorised boat arrivals arriving in an ‘excised offshore place’ were defined as ‘offshore entry persons’ and removed to ‘declared countries’ where their asylum claims were processed. For this purpose Off-shore Processing Centres (OPCs) were established in Nauru and Papua New Guinea.
During the public debate about the bill there was much discussion about what safeguards should apply to offshore processing of asylum seekers.
But ultimately, the problem with processing asylum seekers offshore is Australia’s ability to guarantee certain safeguards – for example, independent scrutiny, access to lawyers – is fundamentally compromised by the fact that ultimately the asylum seekers are in the territory of another sovereign state.
This problem was acknowledged by the Prime Minister himself when he observed that legislating access for the Commonwealth Ombudsman in order to provide independent oversight of offshore processing centres is not possible because it would infringe on the sovereignty of the host country.
As you know the Bill was withdrawn after it became clear that did not have the support of the Senate majority. The Bill’s withdrawal was undoubtedly a win for human rights. Yet it is important to remember that the legal framework that established the original Pacific Solution is still in place. We still have a situation where people who arrive on excised Australian territory can be taken to Nauru and left there indefinitely. The human rights concerns we had with this recent Bill still apply to those people. These problems include:
- no access to independent merits review or judicial review under Australian Law;
- no time limits on the processing of asylum seekers;
- no independent scrutiny of offshore processing centres.
This is the stark reality facing the eight Burmese asylum seekers located on Ashmore Reef on the same day the Migration Bill was withdrawn. Because Ashmore Reef is an ‘excised offshore place’ under the original Pacific Solution laws these asylum seekers will be processed in Nauru.
They don’t have much to look forward to. Some of the asylum seekers held in Nauru under the original Pacific Solution have been detained for more than four years. The UNHCR has said it had ‘a bad experience with the arrangements set in place in Nauru in 2001’ where asylum seekers were kept ‘in detention like conditions for a long period of time with no timely solutions for the refugees, who suffered considerable mental hardship’.
In October 2005, the Australian Government announced that almost all remaining detainees held in offshore processing centres would be transferred to mainland Australia after an independent expert report warned their mental health was deteriorating. Last week The Age reported that a mentally ill Iraqi refugee, who has been detained on Nauru for five years is expected to be flown to Australia after mental health workers expressed grave concerns about his condition.
The withdrawal of the migration bill marks an important step forward in Australia’s treatment of asylum seekers. What I would like to see now is the dismantling of the original Pacific Solution.
It’s also worth observing that the Bill was withdrawn as a result of what was the political equivalent of a blue moon. We should not have to rely on political anomalies to preserve human rights. Instead, proposed legislation should be measured against clearly articulated human rights standards.
Of course, the problem is that while Australia’s Constitution does contain some important rights, others – like the right to vote – are notably absent. Instead, human rights ‘have been granted statutory protection in a piecemeal and incomplete fashion’.
This problem was brought home by the High Court’s decision in Al-Kateb v Goodwin where the majority of the High Court held that the Migration Act permitted the indefinite detention of a failed asylum seeker who wanted to leave Australia but could not find another country to accept him. Shortly after the decision in Al Kateb the High Court unanimously rejected a challenge to the validity of legislation that authorised the detention of children.
These cases highlighted what former High Court Justice McHugh has described as:
the inability of Australian judges to prevent unjust human rights outcomes in the face of federal legislation that is unambiguous in its intent and that falls within a constitutional head of power.
Last month the United Nations Human Rights Committee (HRC) found that the detention of an Iranian family in Curtin Immigration detention centre for over three years was in breach of one of the most fundamental of all human rights obligations – article 9(1) of the ICCPR – the right to be protected from arbitrary imprisonment.
This was the fifth time since 1997 that the HRC has found that Australia’s immigration detention regime does not comply with this basic standard.
In submissions the Australian Government challenged the HRC’s jurisdiction to hear the complaint arguing that the family had not exhausted domestic avenues. However, the HRC found that, because Australia’s High Court had held the policy of mandatory detention was constitutional, this remedy was not effective.
In concluding that the family’s detention was in breach article 9(1) the HRC found that ‘whatever justification there may have been for an initial detention’ Australia had failed to demonstrate:
- ‘that their that their detention was justified for such an extended period’ or
- that compliance with Australia’s immigration policies could not have been achieved by less intrusive measures.
Under article 2 of the ICCPR Australia has agreed to make sure that individuals who allege that their rights have been violatted have access to ‘effective and enforceable remedies’.
In an ideal world, the HRC would never hear complaints against Australia, because an effective remedy would be available here in Australia.
Discrimination against same-sex couples
Yet the reality is that asylum seekers are not only group that struggle to find an effective way to defend their rights in Australia.
Larry Cairns was an Australian World War II veteran. In the early 1960s he met and fell in love with Edward Young, the man who he would spend his life with. When Larry died in 1998 Edward was told that, as the partner of a war veteran, he was entitled to certain benefits. But when Edward inquired he found that these benefits were not available to him. The Veterans Entitlement Act 1986 only provided entitlements to a person who had "living with a person of the opposite sex".
Edward took his complaint to the HRC. The HRC found Australia’s laws regarding veteran’s benefits violates article 26 of the ICCPR – the right to non-discrimination. 
Although the HRC handed down its decision in 2003, the Veterans Entitlement Act is still in force in Australia. Nor is the discriminatory character of this law unusual. Many of Australia’s laws exclude same-sex couples from financial and work-related entitlements and benefits that are enjoyed by heterosexual couples.
This is why earlier this year HREOC launched a national inquiry into the discrimination faced by same sex couples in relation to financial and work-related entitlements.
The inquiry will effectively audit the discriminatory effects of Australian laws on gay and lesbian couples’ access to financial and work-related benefits.
While the word audit is the verbal equivalent of a sleeping pill – especially nearing the end of a lengthy lecture - I would ask you to think instead of the hundreds of people who have made submissions to this inquiry.
For these people and those they love this inquiry is not simply about tax and welfare payments. It is about redressing financial discrimination and respecting relationships
For example, many submissions describe how a gay man, unlike a heterosexual man, is denied access to his partner’s superannuation benefits if his partner worked for the Commonwealth public service.
Other submissions tell us that a lesbian woman, unlike a heterosexual woman, cannot claim tax rebates for child care.
The submissions illustrate how laws treat gay and lesbian couples as second class citizens, not deserving of the same rights as heterosexual couples. As one person put it:
The inequalities embedded in current legislation are obvious and are inexcusable. "Understanding, tolerance and inclusion" are said to be values of the Australian community. Current legislation tells another story.
The right to non-discrimination and the right to equality before the law are fundamental principles of international human rights law.
Making Rights Matter
One of the important questions that the same sex inquiry raises is how did laws which have a clearly discriminatory effect on the day to day lives of many Australians get passed in the first place?
The fact that a raft of discriminatory legislation has travelled through parliamentary processes without any discussion of how it might discriminate against same-sex couples tells us that we need to find a better way to test the human rights compatibility of proposed legislation.
In Victoria the new Charter of Rights and Responsibilities ensures that Parliament can no longer overlook the question of whether legislation is compatible with human rights. Under the Charter:
- Where decisions need to be made about new laws or major policies, submissions to Cabinet must be accompanied by a Human Rights Impact Statement.
- an MP or the Attorney must present a statement of human rights compatibility to parliament on the introduction of a Bill;
- a parliamentary scrutiny committee must independently assess the compatibility of the Bill with human rights; and
- Perhaps most importantly, parliament must publicly explain its actions in the event that it decides to enact or maintain legislation that is inconsistent with human rights principles.
In my view these provisions represent an important step forward for human rights because they explicitly recognise that parliament has a responsibility to uphold human rights standards.
This new provisions are in sharp contrast to federal arrangements. While no one can seriously question the value of parliamentary committees scrutinising new Bills the process is also subject to fundamental limitations.
The extent to which federal Committees do or do not consider the human rights implications of proposed legislation is a matter of chance, not a matter of procedure.
Crucially, the federal Senate Committee process occurs after the legislation has been drafted, the policy objectives formulated and, more often than not, after politicians have publicly committed to the Bill’s implementation. There is no obligation on the government to listen to or act on the Committee’s recommendations.
Towards a Bill of Rights?
It is often observed that Australia is the only Western Nation without a Bill of Rights. Personally, I have never found this in itself a persuasive argument to jump on the Bill of Rights bandwagon.
But the argument that we live in a robust democracy where strong parliamentary processes will safeguard our rights and freedoms is wearing thin.
Equally troubling is that too often the human rights impact of proposed legislation is not fully examined and legislation is passed without requiring Parliament to explain why the legislation is compatible with human rights and – if it’s not –why Parliament believes that the abrogation of rights are justified in the particular circumstance.
We could – and should – do better than this. Plainly it is time to begin considering new ways to better protect human rights. Integrating human rights principles into the pre-legislative process seems like a logical first step.
United Nations Press Release SG/SM/8518, ‘Terrorism is Global Threat, says Secretary General, But measures against it must not be used to justify human rights violations, 21/11/2002. Available at http://www.un.org/News/Press/docs/2002/SGSM8518.doc.htm
 Professor David Feldman, ‘The roles of Parliament in Protecting Human Rights: A view from the UK”, address given at the Human Rights and Legislatures Conference, Melbourne University, 20-22 July 2006.
 See further Australia’s National Framework for Human Rights, National
Action Plan Commonwealth of Australia 2005.
 See the Human Rights and Equal Opportunity Act 1986, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004.
 Evatt E, ‘Bill of Rights and International Standards’ in proceedings at 2002 Bill of Rights Conference, 21 June 2002, Sydney.
 Professor David Feldman, ‘The roles of Parliament in Protecting Human Rights: A view from the UK”, address given at the Human Rights and Legislatures Conference, Melbourne University, 20-22 July 2006
 See for example Editorial, ‘It’s protection of the Innocent’, The Canberra Times, 21 August 2006; Editorial, ‘A battle lost in the War on Terror’, The Australian, 21 August 2006.
 Report of the Secretary-General, ‘Uniting Against Terrorism: Recommendations for a Global Counter-Terrorism Strategy, 27 April 2006 available online at http://www.un.org/unitingagainstterrorism/contents.htm
 Salim Ahmed Hamdan v Donald H Rumsfeld, Secretary of State 546 U.S. (2006)
 R v Thomas  VSCA 165 (18 August 2006)
 ABC News Online, ‘Lodhi gets 20 years for terrorism plot’, 23 August 2006.
 Chief Justice Murray Gleeson AC, "Outcome, Process and the Rule of Law", Address delivered to the Administrative Appeals Tribunal's 30th Anniversary Function, Canberra 2 August 2006
 See the Hon. Justice Michael Kirby AC, ‘Judicial Review in a Time of Terrorism’, Address to the University of the Witwatersrand School of Law & South African Journal of Human Rights in Johannesburg, South Africa, 25 November 2005.
 Other reforms included the imposition of strict time limits on the processing of
asylum claims and new powers for the Commonwealth Ombudsman to review cases of
long-term immigration detention. These reforms followed increasing public
awareness of the plight of children in immigration detention and two damning
reports into the wrongful removal of Vivan Alveraz and the wrongful detention of
 Prime Minister the Hon. John Howard, Media Release, ‘Offshore Processing, 21 June 2006, available online at http://www.pm.gov.au/News/media_releases/media_Release1988.html
 UN News Services, ‘UN agency will ask Australia to change offshore refuge processing legislation’, 12 May 2006, http://www.un.org/apps/news/story.asp?NewsID=18450&Cr=australia&Cr1=
 Jewel Topsfield, Michael Gordon, ‘Mentally Ill refugee may leave Nauru after 5 years’, The Age, 17 August 2006
 The Hon. Justice McHugh, ‘The Need for Agitators – the Risk of Stagnation’, address delivered to Sydney University Law Society Public Forum, 12 October 2005.
 The Hon. Justice McHugh, ‘The Need for Agitators – the Risk of Stagnation’, address delivered to Sydney University Law Society Public Forum, 12 October 2005.
 D & E v Australia, Communication No 1050/2002 UN Doc CCPR/C/87/2D/1050/2002 (25 July 2006).
 D & E v Australia, Communication No 1050/2002 UN Doc CCPR/C/87/2D/1050/2002 (25 July 2006).; Baban v. Australia, Communication No. 1014/2001, U.N. Doc. CCPR/C/78/D/1014/2001 (2003); Bakhtiyari v Australia, Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002, 6 November 2003; C. v. Australia, Communication No. 900/1999, U.N. Doc. CCPR/C/76/D/900/1999 (2002); A v. Australia, Communication No. 560/1993, U.N. Doc. CCPR/C/59/D/560/1993 (1997).
 Young v Australia (941/00), at [10.4]
 HREOC, Same Sex: Same Entitlements Inquiry, Submission 288, James Duncan.