“The Relevance of Human Rights in Contemporary Australia”

Dr Sev Ozdowski OAM
Human Rights Commissioner
Address to the Activating Human Rights and Diversity Conference: Global and Local Voices.
Byron Bay 1 to 4 July 2003.

1. Introduction

2. Emergence of International Human Rights

3. Impact of international human rights law on federal law

4. Moving forward on human rights protection

1. Introduction

Firstly I would like to acknowledge the traditional custodians of the land on which we stand and by so doing remind ourselves that Australia’s cultural traditions stretch back many thousands of years.

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 this point in our development.

I will begin therefore with a quick discussion about:

1. The meaning and origins of human rights.
2. Then I will briefly describe the international human rights system and
3. finally I will discuss our domestic human rights situation.

What do we understand by human rights today?

In contemporary Australia many people may have a range of different ideas about what human rights actually mean to them. For example, not that long ago somebody complained to me that his rights are being infringed because of a barking dog in his neighbourhood. I found it rather a novel approach to human rights, but perhaps he has got a point.

Australians would, however, generally agree that every person has inherent dignity and value and that human rights help us to recognise and respect the fundamental worth in ourselves and in each other.

We would also agree that human rights are the same for all people everywhere – male and female, young and old, rich and poor, regardless of our background, where we live, what we think or what we believe. This is what makes human rights ‘universal’.

Australians do recognise that human rights are important. They recognise our freedom to make choices about our life and develop our potential as human beings. They ensure that we can live free from fear of harassment or discrimination. We would argue that human rights exist even if governments or other people attempt to deny them.

We possibly also agree that respect for human rights helps build strong communities, based on equality and tolerance, in which every person has an opportunity to contribute. Of course, having others respect our human rights comes with the responsibility that we respect the rights of others.

Where do human rights come from?

Australians also differ in their understanding of where human rights have come from. Some of us point to religious origins, others to “natural law” as a source, and some see them simply as hard won concessions from the State. I would possibly subscribe to the last school of thought.

Looking at the history of ideas one can conclude that human rights are not a recent ‘invention’.

Ideas about human rights can be traced back thousands of years to the values developed by ancient civilizations and the teachings of the world’s major religions. Ideas about justice and democracy were all important in Greek and Roman societies, giving political rights – and duties - to free male citizens. The Magna Carta, set down by King John in 1215 under ‘considerable duress’ from his political foes, was another important statement of rights – acknowledging that free men are entitled to judgment by their peers and that even a sovereign ruler is not above the law.

A significant development in human rights took place in the 18th Century against the backdrop of revolution and emerging national identities. The American Declaration of Independence (1776) was based on the understanding that certain rights, such as ‘life, liberty and the pursuit of happiness’, were fundamental to all people.

The French Declaration of the Rights of Man and the Citizen (1789) challenged the sovereignty of the aristocracy and recognised the ‘liberty, equality and fraternity’ of individuals. These values were echoed in the United States’ Bill of Rights (1791), which recognised freedom of speech, religion and the press in its Constitution, as well as the right to ‘peaceable’ assembly, private property and a fair trial.

It is important to note that at that point of our collective development, the recognition of these rights was left to the nations to work out independently. Or in other words, the actual protection and enjoyment of human rights depended on national governments to recognise and implement.

2. Emergence of International Human Rights

So, at the outset of the 20th century, the notion of citizens’ rights was still relatively new – finding their genesis in the second half of the 18th century, with Tom Paine publishing “The Rights of Man and the above mentioned constitutional developments in the USA and France – conversely therefore, human rights as an international law concept really did not exist.

In fact, until the end of World War II, 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 growth of totalitarian regimes in the early twentieth century and in particular the atrocities of World War II 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 became very much a matter of international concern.

The UN’s human rights mandate

The first attempt to develop a comprehensive statement of human rights was the 1948 Universal Declaration of Human Rights which was adopted unanimously by members of the United Nations. It was initially a non-binding statement of human rights principles and standards. It is important to note that Australia played an important role in drafting the Universal Declaration of Human Rights.

The Declaration attempted to set out the fundamental rights of all people, including:

  • the right to life;
  • freedom from slavery,
  • torture and arbitrary arrest;
  • freedom of thought, opinion and religion;
  • the right to a fair trial and equality before the law;
  • the right to work and education; and
  • the right to participate in the social, political and cultural life of one's country.

Since then the Declaration has been the foundation on which much international law has been based as the UN members have worked to articulate human rights standards as binding on themselves in international contracts or treaties. [2]

The community of nations, through membership of the United Nations, decides what rights to enshrine in treaties. These treaties then may become a part of international human rights law. It is important to note however is then up to each country to decide whether to accept each treaty or not.

Only when human rights treaties are signed and ratified do they impose an obligation of protection and adherence on respective national governments and parliaments.

What human rights exist in international law now?

Over the past 50 years, human rights standards have been developed and incorporated into many international laws and treaties. Generally the following categories of international human rights are recognised:

  • civil and political rights which attempt to protect the individual from the misuse of political power and recognise a person’s right to participate in their country’s political process. The most significant treaty in this area is the International Covenant on Civil and Political Rights;
  • economic, social and cultural rights which require a government to ensure that its people share in the economic wealth of the country, can participate in its social and cultural life, have access to adequate health care, education, social support and a clean environment and are able to use their talents for self-improvement. The most significant treaty in this area is the International Covenant on Economic Social and Cultural Rights.

Whilst there has previously been debate about whether one set of rights is more important than the other, it is generally agreed that rights can’t be ‘ranked’. In other words, all rights are equally valuable and important in helping people lead free, healthy and productive lives.

International law has also developed more specific treaties to amplify and better protect the above rights for particularly vulnerable groups of people such as children, women, ethnic/racial minorities and people with disabilities through prohibition of discrimination on the grounds of race, sex or disability or age.

In Australia today, there are a number of important ways in which the rights of individuals are promoted and protected, including:

  • centuries of common law (inherited from England)
  • the Australian Constitution and the Constitutions of the States
  • statutory laws, especially Federal and State anti-discrimination laws
  • an independent judiciary,
  • democratically elected governments,
  • a free media,
  • strong civil society; and
  • bodies like the Human Rights and Equal Opportunity Commission created especially to advance and protect human rights.

Today I will concentrate on protection of human rights by the Australian legal system, and in particular by federal statutory law, the importance of which has grown significantly in this area especially since the early seventies.

This is not to diminish the importance of the common law which may play a very significant role in this area by reason of its traditional regard for fundamental individual rights.

A good example of the common law impact on domestic human rights is its role in the acknowledgement and development of the native title rights of indigenous Australians. The common law principles of habeas corpus have also been significant in recent years in the context of asylum seekers who claim they are being illegally detained. The recent Family Court decision in B & B, which has attracted some public controversy, also reflects aspects of those principles, with the Full Bench of that court invoking its welfare jurisdiction to protect the rights of children.

The Federal Constitution

So let’s start with the Federal Constitution as the cornerstone of Australian legal system.

The Constitution of Australia divides spheres of legislative, judicial and executive responsibility between the Commonwealth of Australia and the States. In brief, the Federal government is responsible for defined heads of power, including national defence, international affairs and finances, including most taxation. The state governments are responsible for the residual areas, including health, education (with the exception of tertiary education) and policing.

Both Federal and State governments are responsible for human rights protection. States, for example, may also incorporate international human rights principles into state legislation to the extent that such legislation is not inconsistent with any Commonwealth legislation in the area. [3]

On the federal level, a comprehensive statement of human rights – or citizenship rights as they might have been known at federation – was not included in Australia’s Constitution despite the French and US examples. Legend even has it that some of our “founding fathers” opposed it because of its potential to entrench ‘racial equality’ throughout Australia! We followed instead the British model of reliance upon the common law to protect individuals against abusive interference by governments.

This could be largely explained by reference to our history – Australia’s mostly peaceful development towards nationhood and independence. The Australian federation was not forged in war or revolution, and non-indigenous Australians have no history of organised struggle against massive human rights abuses.

Nation states established in violence, and that is not the experience of mainstream Australia, have been much more likely to entrench those hard won human rights in their constitutions. For example, constitutional protections of human rights were built into most constitutions of recently democratised countries of the former Soviet block and in post-apartheid South Africa and the Philippines.

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 Australian reliance on the common law rather than constitutional rights meant that very few individual rights were explicitly recognised in the Constitution; for the record they are:

1. the right to vote (Section 41); although still to be confirmed by the High Court as explicitly thus;
2. the right to a trial by jury in the State where the alleged federal offence took place (Section 80)
3. the denial of federal legislative power with respect to religion (Section 116) and
4. the prohibition against discrimination on the basis of state of residency (Section 117).

There are also two “economic rights” – s.92 guaranteeing freedom of interstate trade and s.51 mandating payment on just terms for property acquired by the Commonwealth.

The Constitution is silent in relation to numerous other rights that are well recognised in the constitutions of other Western democracies. For example, the Constitution does not guarantee:

  • the fundamental freedoms such as the freedom of association, freedom of movement, freedom of peaceful assembly, freedom of thought, belief and opinion, and freedom from arbitrary arrest or detention;
  • the right to a fair trial or due process;
  • equality of all persons in Australia before the law.

The Constitutional jurisprudence of the High Court has made a significant contribution to the protection of human rights in Australia. Particularly 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.

Section 51(xxix) of the Constitution, the external affairs power, provides the Commonwealth Parliament with the power to legislate so as to incorporate provisions of international human rights conventions into Australian domestic law. So the High Court affirmed in a decision where Queensland challenged the constitutional validity of the Racial Discrimination Act. [4]

A High Court interested in an expansive reading of the Constitution has also found that certain individual rights are implicit in the system of government it establishes. Thus in 1992 the individual right to communicate freely in political matters was recognised by the High Court. [5]

The courts have also acknowledged that international human rights law is a legitimate influence on the development of the common law which may further strengthen its utility as a means of protecting human rights.

Federal legislation

The history of Australian domestic legislation from the point of compliance with human rights standards is uneven.

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. This was racist legislation which would be in clear conflict with a range of contemporary human rights conventions.

However as the US Supreme Court 7 to 2 majority decision in the 1857 “Dred Scott” case demonstrates, racial equality is a tender flower that requires constant love and attention. Here the Supreme Court found a mere 80 years after the US “Declaration of Independence” that a slave – Dred Scott, who had lived 13 years in a non-slave state, was not entitled to a declaration that he was a free citizen of the United States because the famous words “all men are created equal” did not refer to African Americans!!

Little surprise then that Australia, a mere four decades later, would still legislate to entrench similar white supremacist attitudes.

On the other hand, Australia did reasonably well by contemporary standards in creating a democratic system of government. For example, as early as in 1902 the federal franchise - the vote - was extended to women (This voting equality was however not extended to other spheres of importance to women until the early seventies.)

Australia’s particular achievement has been the development of a comprehensive system of protection of economic and social rights, which was put in place well before the Bolshevik revolution in Russia. In fact Australia has been an international leader in this field.

And the role of the Australian trade union movement in this process over many years must also be acknowledged. It played a vital part in the system of “checks and balances” that characterises our economic framework.

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 -[6] 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 [7] while Aboriginal workers were excluded from the process until 1966 when Aboriginal stockmen were granted equal wages to non-Aboriginal stockmen. [8]

So, many human rights were protected by domestic legislation well in advance of the emergence of international human rights law and the treaty system.

3. Impact of international human rights law on federal law

Let us now focus on the impact of the international human rights law on federal legislation.

As we acknowledged earlier Australia has been at the forefront of UN activism and has been prominent among the drafters and the promoters of human rights treaties. However, human rights treaties provide simply the mechanisms by which governments agree on those international human rights which each may wish to recognise for their citizens. Ratification of an international human rights treaty does not, however, mean that the treaty standards automatically became incorporated into domestic law.
Instruments ratified by Australia
By now Australia has now accepted (that is, ratified [9] ) 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)

Instruments incorporated into domestic law

Despite Australia’s leading role since 1948 in the development of international human rights standards, these standards did not have much impact on domestic law until the early 1970s. Since then most of human rights treaties were either comprehensively or partially incorporated into federal law.

The notable achievement is the 1975 Racial Discrimination Act which incorporated the International Convention on the Elimination of All Forms of Racial Discrimination into domestic law. A Commissioner for Community Relations was appointed in 1975 to monitor the new Act.

Another notable achievement is the fact that the Sex Discrimination Convention (CEDAW) has been almost fully incorporated in Australian law through the Sex Discrimination Act of 1984.

Of the remaining 13 listed above only five, that is

  • the Refugee Convention,
  • the Torture Convention,
  • ILO 100 on equal pay,
  • 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. [10]

The others three, namely:

  • International Covenant on Civil and Political Rights
  • Convention on the Rights of the Child
  • Discrimination (Employment and Occupation) Convention (ILO 111)

were attached to the Human Rights Commission’s legislation of 1981 and then to the Human Rights and Equal Opportunity legislation of 1986. Their incorporation must be treated as only partial, because they do not give rights independently of the Commission’s limited complaints jurisdiction.

To sum up, out of 15 key international humans rights treaties Australia incorporated comprehensively 8 and partially 3 treaties into domestic legislation.

Further, it should be noted, that many human rights, especially those relating to criminal investigations and trials, are similar to common law protections well-recognised in Australia.

The role of the Human Rights Commission

The Human Rights and Equal Opportunity Commission (HREOC) is an important element in the human rights protection system in Australia.

HREOC was established by an Act of federal Parliament in 1986 as a national independent statutory authority. It replaced the previous Human Rights Commission, which was set up in 1981. The Commission administers federal legislation in the area of human rights, anti-discrimination and social justice. It reports to the federal Parliament through the Attorney-General.

It is, however important to note that HREOC does not have constitutional standing; neither does it have a ‘court like’ mandate.

The Commission’s responsibility is to foster greater understanding, respect and protection of human rights in Australia, with a particular focus on sex, race and disability discrimination, as well as the rights of indigenous Australians.

The Commission does this through:

1. holding inquiries into issues of national importance, such as the forced removal of Aboriginal children from their families, paid maternity leave and the rights of children in immigration detention centres;

2. providing independent advice to assist courts in cases that involve human rights principles such as:

  • International law and the extent to which administrative decision makers are obliged to take into account international human rights instruments in making decisions (the Teoh case);
  • Inconsistency between state and federal legislation in relation to the criminalisation of homosexuality (the Croome & Toonen case);
  • Freedom of political speech (the Langer case).

3. Providing advice and assistance to parliaments and governments to develop laws, programs and policies such as the federal Age Discrimination Act, currently before parliament;

4. And, finally raising public awareness of human rights by fostering public discussion, developing educational programs and resources for schools, workplaces and the community.

The Commission also investigates alleged infringements of the Commonwealth Racial, Sex and Disability Discrimination Acts and alleged infringements of human rights under the HREOC Act.

Equality protection laws – including anti-discrimination Acts 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, in most cases the complainant is entitled to take the matter to court for a decision and a remedy, including compensation where appropriate.

Individuals may also complain to HREOC about alleged breaches of civil and political rights (under the International Covenant on Civil and Political Rights) where the allegedly guilty party is the Commonwealth (eg. federal department).

This “right” provides protection for:

  • the right to life
  • freedom from torture or cruel, inhuman, or degrading treatment or punishment
  • the right not to be held in slavery or servitude
  • the right not to be subjected to arbitrary arrest or exile
  • the right to humane conditions and treatment while in detention
  • the right to a fair and public hearing
  • freedom of thought and religion
  • freedom of opinion and expression
  • freedom of association and assembly
  • the right to vote.

This “right” also provides protection against discrimination in employment by the Commonwealth on a range of grounds, such as age, religion, sexual preference, political opinion, trade union activity and medical records.

Complaints received under this provision are resolved by conciliation between the parties. However, unlike complaints under the anti-discrimination laws, if the matter can’t be conciliated, even if the Commonwealth is found to be in violation of human rights, there is no provision for the matter to be referred to an Australian court for conclusive arbitration.

The Commission only has power to report on the matter to the Parliament. These reports may refer to individual complaints or to legislation which operates to violate the human rights of many – such as Commonwealth superannuation legislation which discriminates against same sex couples. Although the Commission’s report must be tabled in Parliament, the government is under no obligation to adopt the recommendations.

The lack of an effective remedy for civil and political 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.

It is the absence of effective implementation of the ICCPR that has allowed State and Territory governments to impose 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.

4. Moving forward on human rights protection

Based on the above analysis one could conclude that human rights protection in Australia is of relatively high standard. Democratic traditions and a comprehensive body of common and statutory laws provide a solid basis for protection of human rights. Despite the existence of continuing disadvantage of indigenous Australians, particularly strong mechanisms are in place to protect equality and economic rights.

However, 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.

Negative consequences of weak protection of civil rights
The lack of adequate legislative protection of civil liberties in this country is now bringing a range of negative consequences to Australia.

1. It may result in the erosion of existing civil liberties. Lack of a statutory statement means there is no yardstick of measurement. It makes both enforcement through the courts and civic education difficult. It allows executive power to grow. For example:

  • 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 and subsequently the ASIO Bill. 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.

2. 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.

3. HREOC’s inspections and reports about Australia’s remote location immigration detention centres at Port Hedland, Curtin and Woomera tells us that elimination of regular judicial oversight of administrative detention, especially where it is long-term, is dangerous. In the time 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

4. 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 previously mentioned, 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.

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.

5. If Australian courts were able to interpret a domestically developed code of civil rights, in time this Australian jurisprudence would contribute to better international understanding of our way of life.

6. Individual Australians are aware that globalisation means that economic and financial deregulation is here to stay and consequently they need to take more personal responsibility for their careers. To achieve this will require a preparedness to take calculated risks, however they also know that they have very little recourse to any statutory “rights” protection, offsetting those risks. The absence of these rights makes them reluctant to fully engage with the deregulated environment.

Civil liberties and Australian public opinion

So, why don’t Australians lobby our parliamentarians for better protection of civil and political rights? Let us examine contemporary Australian human rights culture as expressed in a range of public opinion surveys to assess what support, if any, there is among Australia’s public for enactment of a bill of rights.

Examination of available public opinion data suggests that we have to account for a complex body of attitudes which is in the process of constant change.

Earlier I spoke about our focus on anti-discrimination laws. It was interesting to find that there appears to be a growing “equality fatigue” amongst Australians. Many people express the view that anti-discrimination laws provide “special favours” for minorities and “nothing of value” for the mainstream. At the same time there is a sense that equality has been achieved and there is little else that must be done in order to protect equality rights.

In fact, community confidence in the existence of equal rights in Australia has risen over the past decade. In 1991, almost two-thirds (64%) of 1,522 people surveyed 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. [11] In 1999 a majority believed that equal opportunity is now enjoyed by women and migrants. [12]

This “equality fatigue” does not appear to extend to people with disabilities and it is difficult to assess attitudes toward the currently proposed age discrimination legislation.

It was encouraging to find that Australians are more comfortable with the notion of rights and freedoms than they are with increased protection for equality rights. 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;
  • Right to vote; and
  • Freedom from arbitrary arrest. [13]

Further, more than half of 1,505 Australians surveyed in 1991-92 believed that their rights are not well protected against unfair government action. [14] It is encouraging to read 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. [15]

Barriers to better protection of rights

Despite widespread endorsement of a range of rights and freedoms and desire for protection from arbitrary government action, there exists a range of institutional and other barriers to further advancement of human rights protection through legislation.

Perhaps the most important barrier is the widespread belief that our democratic systems of government, especially with an independent judiciary that applies and develops the common law are the best protectors of an individual’s rights.

The Prime Minister has expressed this view 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. [16]

A consequence of this belief that everything works well at present is the quite widespread attitude “if it ain’t broke don’t fix it”.
Another key barrier relates to the fact that 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 I have met, especially during my early meetings of the National Dialogue on Human Rights, believed 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.

However the position here is still capable of producing contradictory outcomes as it appears to have changed in recent months. The strong tide of public demonstration and opinion polling, against Australian involvement in the Iraq war without a UN mandate, clearly shows that on the really big international issues Australians still trust the UN more than our elected representatives.

Another barrier is our long standing concern about issues relating to border protection and immigration. Recent issues such as the Tampa asylum-seekers incident or the terrorist attacks on the US and in Bali may have added complexity to the issue. Australians who believe in basic human rights are also concerned about their security, and there has already been some evidence of compromising rights in order to increase our sense of national security.

What could be done to enhance Australia’s human rights culture?

The clash of cultures that these incidents have highlighted reveals important tensions within Australian society, and between ideas of protecting freedoms and protecting security. Hopefully, discussion on these points will expand into a more general debate about human rights and their role in Australian society.

I will turn now to the nature of such a debate and the role that the Human Rights Commissioner can play in stimulating serious dialogue on human rights.

How will I achieve this HR dialogue?

For my part the first step involves organising a large number of community meetings where I would link a discussion about human rights with a controversial contemporary issue. At the moment that could be:

  • The idea of a Bill of Rights and its intersection with, say,
  • Mandatory immigration detention policies.

However in order for this to resonate with my audience I will also need to humanise the asylum seekers story.

The need to humanise these experiences is one of the key reasons why I undertook the Inquiry into Children in Immigration Detention because of its innate capacity for the subject matter to communicate with Australians. And already I believe we are seeing some shift in public opinion. Consider these statistics:

  • Tampa – 75% of Australians supported the government’s action;
  • Currently 70%-75% believe children should be released from detention;

At this point I would also like to fully acknowledge the wonderful efforts of NGOs and others who have done so much to foster this attitudinal change in the community.

We must also be very careful to ensure that our web-based teaching materials our constantly scrutinised to ensure their relevance. This is particularly important because the HREOC website is so frequently accessed. Last year the HREOC website’s “human rights explained” module received an astonishing 56,572 page views. So while it is clearly a much valued reference point, it must correspondingly aspire to maintain contemporary relevance.

But please don’t leave today with the impression that this work can only be carried out by people like me or specialist NGOs. I believe we can all make a difference and I urge all present here today to initiate their own process of human rights dialogue with their fellow Australians. While I am reluctant to be too prescriptive, a good starting point would be themes such as:

  • Better protection, and
  • The advancement of the culture of human rights.

I firmly believe that we are in the middle of an ideal opportunity to debate human rights. Let us turn the challenges of the recent past, both local and international, to our advantage by ensuring that our discussion of them occurs within a human rights framework. Never has there been a better time for people like us to work towards the creation of a serious national debate about the importance of human rights within Australian society, than right now.

1. The first of the Geneva Conventions is dated 1864 and covers the immunity of military hospitals and medical staff.

2. The influence of regional arrangements should be recognised here, although it is not directly 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. They do not become part of domestic law unless specifically incorporated into the local legal system.

3. s109 Australian Constitution

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

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

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

7. 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.

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

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

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

13. Social Science Data Archive, Rights in Australia 1991-1992: National Household Sample (1992, ANU, Canberra); Australian Election Study (1998, ANU, Canberra); Australian Constitutional Referendum Study (1999, ANU, Canberra).

14. 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.

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

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

Last updated 10 September 2003