Human Rights in Australia
The Hon John von Doussa QC
President, Human Rights and Equal Opportunity Commission
Legal Studies Association of NSW State Conference 2008
March 27 – 28, Rosehill, NSW
I would like to begin by acknowledging the Gadigal People of the Eora Nation, the traditional owners of the land on which we meet.
Thank you for inviting me here today to speak about human rights in Australia. I would like to use this opportunity to focus on how human rights are protected in Australia; and how you, as human rights educators, can help students to understand these protections. I will also seek to shed some light on the role of the Human Rights and Equal Opportunity Commission and some of our responses to some current human rights issues.
What are human rights?
First though, I would like to spend some time reflecting on what human rights mean in Australia and how they relate to our day to day lives.
[SLIDE 2 – What are Human Rights]
The Human Rights and Equal Opportunity Commission (HREOC) works consistently to protect and promote human rights, and to educate people in all sectors of society about how human rights can be protected. As part of a recent project we suspected that many people aren’t sure exactly what human rights are, or how to describe them. In order to find out exactly what the public understanding of human rights is, we conducted a number of ‘vox pop’ interviews on the streets of Sydney.
[SLIDE 3 – PLAY VIDEO]
As you can see, quite often, human rights are perceived as abstract principles; which although understood on a general level, can be difficult to articulate.
So, what are human rights?
At the fundamental level, human rights are about developing a moral understanding of what it means to treat other people with respect and dignity and using this understanding to guide the way we see and act in society. Respect and dignity help build strong communities, based on equality and tolerance, in which everyone has the opportunity to contribute. If Graeme Innes, our Human Rights Commissioner, had been here today, he would no doubt have referred you to the case of the Kerrigan family in The Castle to show that human rights are really about getting ‘a fair go’ – whoever we are and whatever we believe. Indeed as the storyline in the The Castle highlights, human rights can be described as a set of moral guidelines as well as through a legal framework. It is of course, the legal framework that I will discuss in more detail today.
There are many features of Australian society that protect and promote human rights; a free media, a democratically elected government, strong civil society. There are also of course legal protections for human rights.
Legal protection of human rights occurs at both the federal and state level. For example, as the presentations yesterday would no doubt have discussed, states have principal responsibility for criminal law; an area which contains many protections and mechanisms that operate to uphold the human rights of an accused person.
However, there are gaps in the legal protection of human rights in Australia. While human rights are recognised under the Constitution and the common law, this recognition is limited. There are only a small number of rights in the Constitution that are either explicitly guaranteed or that have been implied by the High Court, for example, the implied freedom of political speech. I will come back to the topic of human rights protection in Australian legislation more thoroughly later on.
The more detailed articulation of human rights has occurred principally in international law. International law sets out the agreed minimum standard for human treatment and establishes basic standards for identifying and measuring inequality and unfairness.
The modern notion of human rights has deep roots in the traditions of all peoples. It traces back to, and is based upon, the United Nations Charter, adopted in 1946, and the Universal Declaration of Human Rights (UDHR) adopted by the General Assembly of the United Nations on 10 December 1948. The human rights that are articulated in the UDHR, have been further enshrined in a number of international conventions and declarations. The major ones are listed here, and some of you will be familiar with these.
[SLIDE 4 – International Human Rights Law]
As you can see, human rights have been categorised into different types of rights. ‘Civil and political’ rights include rights to equality before the law, to vote, to privacy, to free speech, movement, and political thought. ‘Economic and social’ rights include rights to adequate food and water, to health care and to education.
[SLIDE 5 – International Human Rights Law Cont.]
There are also various categories of rights which are defined by the nature of the holders, such as women, workers, children, minority groups, indigenous people, and people with a disability.
In international law, human rights instruments impose broad obligations on countries. By ratifying an international human rights instrument, countries agree to respect, protect and fulfil the rights contained within it.
[SLIDE 6 - International Human Rights Bodies]
The international system has mechanisms to monitor countries’ compliance with these instruments. There are two types of human rights bodies within the United Nations system: bodies set up under the UN Charter and bodies set up under particular human rights treaties.
The principal UN Charter Body responsible for human rights is the Human Rights Council, which was established in 2006, to replace the Human Rights Commission. Forty-seven UN member states sit on the Council. The human rights treaty bodies are committees of independent experts that monitor implementation of the core international human rights treaties.
Protecting human rights in Australia
[SLIDE 7 – Protecting Human Rights in Australia]
But, while countries are bound in international law by the treaties they have ratified, in many countries the human rights recognised in these treaties do not become part of domestic law until that country has enacted them as legislation. How then, do these international human rights standards get implemented in Australia?
SLIDE 8 – Australian human rights legislation]
In Australia, the federal Parliament has incorporated substantial parts of a number of the major human rights Conventions into Australian domestic legislation. This list gives examples of some the key statutes relating to human rights, and identifies the related treaty or treaties incorporated.
[SLIDE 9 – general law relevant to human rights]
There are also a number of more general laws, which connect in some respects, to Australia’s international human rights obligations.
Even when a Convention has not been enacted into domestic legislation it will still be relevant as a tool for courts to use when interpreting the common law or other statutes. For a further discussion on how the courts interpret international law, I would refer you to a speech I gave in October 2007 at the Administrative Appeals Tribunal’s Annual Conference, which is available on our website.
But back to today’s focus. What then is the Human Rights and Equal Opportunity Commission – and how do we fit into this?
[SLIDE 10 – PLAY VIDEO]
What, of that, was correct?
Essentially, HREOC is an independent statutory body, and we report to the federal parliament. HREOC is responsible for administering all of the federal acts delaing with discrimination, as well as the Human Rights and Equal Opportunity Commission Act 1986 (the HREOC Act). In total there are 5 acts, which subsequently give HREOC a wide range of legal responsibilities.
[SLIDE 11 – HREOC’s Functions]
HREOC has a statutory function to promote understanding, awareness and public discussion of human rights in Australia. HREOC has responsibilities for the promotion and protection of human rights under federal ‘human rights’ and anti-discrimination laws. This includes monitoring government policy around civil and political rights, promoting an understanding of the laws that protect these rights, and actively assisting people in Australia to ensure they have access to the full protection of such rights.
However, the definition of human rights contained in the HREOC Act is limited to those rights and freedoms contained in specific international instruments that are or declared under the HREOC Act. For example; the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child are international conventions that HREOC monitors.
As you can see from the slide, there is enormous breadth in HREOC’s work. A comprehensive analysis of HREOC’s functions is beyond the scope of my presentation. But I would like to highlight just some of the work we do, which will hopefully prompt some questions for discussion at the end.
One of the main functions of HREOC is to investigate and conciliate complaints concerning discrimination on the grounds of race, sex, disability or age.
[SLIDE 12 – Complaints process]
Although we are not a judicial body, when complaints are made to us, we investigate them and endeavor to conciliate a result between the parties. Most of the complaints we receive are, in fact, conciliated. However, if an agreement cannot be reached, HREOC issues a Notice of Termination which triggers the jurisdiction of the Federal Court and the Federal Magistrates Court to determine the complaint. The courts are empowered to award a wide range of remedies, including damages.
The position under the HREOC Act is different. The HREOC Act sets up two complaint mechanisms: one for persons aggrieved by ‘an act or practice’ by or on behalf of the Commonwealth, or under a federal enactment which is inconsistent with a defined human right; and the other for an act or practice by or on behalf of a State, under a State law or in a State in relation to equality of opportunity in employment. Under these mechanisms a complaint may be made to HREOC. HREOC is directed to endeavour to conciliate it, but if this is not possible, a report is made to the Attorney-General who must table it in Parliament. The Courts have no jurisdiction to determine the complaint. An example of this is the case of three detainees in immigration detention. HREOC’s report found that the conditions of their journey between Maribyrnong Immigration Detention Centre and Baxter Immigration Detention Facility were in breach of the detainees’ human rights pursuant to articles 7 and 10(1) of the ICCPR.
The majority of complaints lodged with HREOC are about alleged discrimination in the workplace. For example, one of the case studies available on the HREOC website is Deborah’s case. Deborah started full-time work as an office administrator with a small training consultancy company. Three months later she advised the company director that she was pregnant and was suffering from pregnancy related illness. Deborah said that a few weeks later when she told the director that she was ill again, he said “That’s it. I’ve had enough. Pack your stuff and go” and terminated her employment. In response the company said that it had accommodated the Deborah’s medical appointments and had allowed her to take sick leave. It denied that Deborah’s employment had been terminated and claimed that she had resigned. The complaint was resolved by conciliation with the company agreeing to provide Deborah with written and verbal references and an ex-gratia payment of $6,000.
[SLIDE 13 – Public Inquiries]
Another important role of HREOC is to hold public inquiries into major human rights issues. National inquiries are an important way for us to collect evidence, research issues and assess laws and policies – on a more systemic level than our individual complaints function allows. HREOC then makes recommendations to Parliament to improve the human rights outcomes for vulnerable people.
For example, HREOC recently completed its Inquiry into discrimination against same-sex couples in accessing financial and work-related entitlements. As part of the inquiry we held hearing all over Australia and heard many stories. In one of our hearings we heard from Monica and Sally, who have been in a relationship for more that 13 years and have a baby girl. Under superannuation laws, Sally cannot nominate Monica to receive her benefits. Under income tax laws they do not have same the same benefits as opposite-sex families do. Under custody laws, Monica has no legal rights over their child because she is the non-biological parent. Under Medicare laws Monica is not listed on the same Medicare card, so cannot authorise treatment for their daughter. In fact, the Same Sex: Same Entitlements report found that there are 58 federal laws discriminate against same sex couples.
Another example, mentioned in the vox pop interviews, was the Bringing Them Home inquiry, which looked at the separation of Aboriginal and Torres Strait Islander children from their families. One of the central recommendations of the report, which was released in 1997, was for an acknowledgement of and apology to the Stolen Generations. The Apology given by the government in February this year was an undoubted milestone in the history of Australia and an enormous achievement for the authors of the report.
[SLIDE 14 – contributing to public debate]
As well as through our national inquiries, HREOC contributes to the public debate on human rights in a number of other ways, including making submissions to parliaments and governments to develop laws, policies and programs; and undertaking and coordinating research into human rights and discrimination issues.
All of HREOCs submissions, along with many of the speeches from Commissioners and me are available via the website. There is a handout available with the web links to the various submissions and issues that I mention today.
One of the most recent and prominent examples of this is HREOC’s involvement in, and response to, the Northern Territory intervention. As some of you may know, our Aboriginal and Torres Strait Islander Commissioner Mr Tom Calma (pictured in slide) has been a prominent figure on this issue.
Initially, the federal government set out to respond to the findings in the report The Little Children are Sacred that child abuse was rampant in the Northern Territory. On 21 June last year the government announced it would intervene through a range of measures. On the 7th August last year legislation was introduced to Parliament that allowed for a broad number of changes to current practice in the territory. This was passed on the 10th August. Many of you will be familiar with discussions around issues of changes to welfare payments, CDEP and the permit system.
One of the primary concerns from HREOC’s perspective was the fact that the Racial Discrimination Act was expressly overridden by the laws. The Racial Discrimination Act provides for special measures. The emergency response was said to be a package of special measures. If it truly was, then there was no need to override the Racial Discrimination Act. This was the substance of the submissions we made to the Senate legal and Constitutional Affairs Committee, who held a one day inquiry into the provisions of the legislation.
Further to this, Tom Calma in his role as Commissioner has widely advocated for Indigenous rights in the public domain. He has argued in this case that;
- strong leadership from government on rights is essential (and could close the gap); and
- that the process by which intervention objectives are to be met requires consultation & participation with Indigenous communities, along with careful balancing of rights through proper recognition of law.
The new federal government has certainly taken many of these proposals on board, as demonstrated last week with the Indigenous Health Summit when they announced their commitment to closing the gap on life expectancy and addressing the issues through a wider process of consultation as Tom had requested.
Another example has been HREOC’s contribution to the Charter of Rights debate. HREOC has made a number of submissions to consultation processes on Charters of Rights in Australian states – in Victoria, Tasmania and Western Australia. Graeme Innes, our Human Rights Commissioner, and I have given a number of speeches on the issue.
As I discussed earlier, there are many international human rights standards that Australia has agreed to, which have not been incorporated into Australian law. HREOC believes that the best way to provide comprehensive protection of human rights would be to introduce a federal Charter of Rights.
A Charter of Rights would foster a human rights culture in government and the broader Australian community by:
- Making human rights an integral part of the law and policy decision-making process;
- Requiring Parliament to consider whether laws comply with human rights;
- Enabling Courts, where possible, to interpret laws consistently with human rights and identify laws which do not comply with human rights; and
- Providing accessible and appropriate remedies for breaches of human rights.
Furthermore, from an educational perspective, the process of community consultation in the development of a Charter would be an invaluable opportunity for Australians to engage with each other and with their government; to have their say about rights protection in Australian law.
While most of HREOC’s work involves human rights issues in Australia, HREOC also does some work internationally, both bilaterally with individual countries and through multilateral bodies that deal with the protection and promotion of human rights.
HREOC is a ‘National Human Rights Institution’, which is accredited under the Paris Principles. This gives HREOC standing to participate in the work of the various United Nations human rights bodies. Often this participation is facilitated by our membership of the Asia Pacific Forum of National Human Rights Institutions and/or the International Coordinating Committee of National Human Rights Institutions.
HREOC also has an international programs unit that is funded by AusAID, and is given responsibility to facilitate technical cooperation training programs in regards to specific human rights issues. A topical example of this is our role in human rights technical cooperation programs with China.
Teaching students about human rights protections
[SLIDE 15 – Human Rights Education]
In order to create change around the area of human rights, it is essential to know and understand the protection that the law offers. A substantial part of HREOC’s education resources are based on explaining the various complexities of laws that protect our human rights.
[SLIDE 16 – Information for Teachers]
As legal studies teachers, many of you may benefit from a wide variety of the resources on our website, whether they be submissions, cases studies of complaints under the discrimination Acts, or perhaps even the Acts themselves. There are however, specific resources designed for educators with individual classroom activities:
- The Youth Challenge series offers an introduction to human rights and complements the range of topics addressed by our human rights policy team such as child rights, voting rights, and rights for those with a criminal record to name a few. The series also covers issues around disability rights, sexual harassment in the classroom and the rights of young people in the workplace.
- The Voices of Australia collection includes a poster and a collection of stories from everyday Australians about cultural harmony and overcoming racial stereotypes. For legal studies teachers I should point your attention to chapter 5 of the education module that provides teaching and learning activities around the Racial Discrimination Act, and how the act fits into the broader legal framework in Australia.
For your students, there are a number of simplified guides to human rights available via the education part of the website. Recently we produced a range of fact sheets for students on the origin, philosophies and history of human rights titled ‘human rights explained’. This resource has proven extremely popular with the general public already, and copies of it have been requested for each Member of Parliament in the country- hopefully this indicates a positive move forward in greater human rights protection in Australia.
If you haven’t seen them already, there are a number of these publications available for teachers today, and there are certainly plenty of order forms in case you would like to order anything further from HREOC in the future.