Achieving human rights progress is hard but vital
OPINION | Charter of Human Rights
Achieving human rights progress can be hard. It can take years and sometimes decades of advocacy, campaigning, strategy, suffering and sacrifice. Sometimes all that effort comes to nothing. Sometimes things go backwards despite our best efforts. Sometimes change happens, but the pace is far too slow.
By Hugh de Kretser
Executive Director
30 years ago, the Royal Commission into Aboriginal Deaths in Custody laid out a road map to stop Aboriginal people from dying in police and prison cells. Recognising the disproportionate and harmful impact of the crime of public drunkenness on Aboriginal people, the Commission recommended its abolition. One of the deaths investigated by the Commission was that of Harrison Day, who died from an epileptic seizure in a police cell in Victoria in 1982 after being arrested for an unpaid $10 fine for public drunkenness.
At the time of the Commission’s report, Victoria was on the verge of decriminalising public drunkenness, but later abandoned the reform for political reasons. 26 years later, in 2017, Harrison’s niece, Tanya Day, was arrested for being drunk on a train in country Victoria and locked up in a police cell. Police officers did not monitor her welfare and safety as required. She fell numerous times, hit her head and tragically died from the injuries.
In the lead up to the coronial inquest into Tanya Day’s death, the Victorian Government committed to abolish the crime of public drunkenness. In February this year, 30 years after the Royal Commission, the laws passed the Victorian Parliament. Change was finally won, but it was bittersweet. Tanya Day should never have died.
I took my first paid human rights job running a community legal centre in Melbourne’s outer west, in 2004. One of our reform projects was addressing the impact of old, irrelevant criminal convictions on people’s ability to access employment. Research confirms that securing work helps people who have offended to get their lives back on track, while excluding them from jobs can send them spiralling downward. We heard from many people who had turned their lives around, lived crime free for years, and yet were still haunted by old and often minor convictions.
Unlike every other Australian jurisdiction, Victoria had no legislated spent convictions scheme which mandated when an old conviction should no longer appear on your criminal record. Ambitiously or perhaps naively, I set a goal to achieve the scheme by 2007 and then told the Executive Director of the Fitzroy Legal Service, who we were collaborating with. She said she had found a law reform file in their office on the issue from around 1978. I took a deep breath. Around 15 years later, in March this year, the scheme was finally legislated by the Victorian Parliament.
What made both of these long overdue changes happen this year and not before?
That’s a long story but a big part of it is the determined and courageous advocacy by people directly affected by the injustice. Tanya Day’s adult children powerfully spoke up and pressed for change so that no other family had to endure the loss they suffered. They used the focus of the coronial inquest to highlight the failures that led to their mother’s death, spoke to the media and met with politicians to convince them to pursue reform.
A project led by Woor-Dungin, a partnership between Aboriginal organisations and philanthropy, was critical to achieving criminal record reform. The project highlighted the disproportionate impact of old criminal records on Aboriginal people and the stigma, discrimination and exclusion they experienced as a result. It shone a light on the injustice of past practices when children removed from their families were given a criminal record. It involved affected people and helped them to tell decision makers about the need for change.
So many human rights changes happen this way. Years and sometimes decades of strategic advocacy, campaigning and legal action are often involved. Sometimes good work goes unrewarded for long periods until, in the language of acclaimed political scientist John Kingdon, a “policy window” opens and the change is won.[i]
For human rights supporters, it’s vital to look back and reflect on how change is won. Bill Quigley, in his insightful and inspiring “Letter to a Law Student Interested in Social Justice” warns that failure “is an inevitable part of social justice advocacy” and it is the response to failure that is the challenge. Quigley speaks of the vital importance of hope in this response: “When hope is alive, change is possible.”[ii]
Looking back on human rights progress can give us hope about what is possible in the future. It helps us to remember injustice and to remain vigilant against regression. It ensures we don’t take change for granted and teaches us how to avoid mistakes and how to be more effective in our human rights advocacy. Perhaps most importantly, it can energise our efforts to achieve further progress to address the many challenges that remain.
In the 30 years since this magazine was first published, it is clear that, despite the setbacks, there has been significant human rights progress in Australia. Progress has been sometimes small, sometimes big. It has never been linear and never been certain. But each step forward, whether in advancing women’s rights or achieving marriage equality, has cumulatively amounted to a major and undeniable positive shift towards realising human rights in this country.
Of course, many gaps and challenges remain. 30 years after the Royal Commission, Aboriginal and Torres Strait Islander people are still dying in custody at shocking rates; a product of choices by governments and parliaments to adopt laws and policies that have made the crisis of Aboriginal and Torres Strait Islander over-imprisonment worse. Australia has gone backwards on its approach to people who come to our country seeking safety from persecution. Wealth and income inequality is increasing and new areas of acute risk have emerged with the impact of climate change and new technologies on human rights. And we still don’t have a national Charter of Human Rights that implements the promises governments have made to protect people’s rights in Australian law.
Yes, achieving human rights progress can be hard, but it is vital that we pursue it. Looking back over this magazine’s 30 year history should teach us that, while sometimes human rights progress may not happen despite our efforts, it will certainly not happen if we do not try. For supporters of human rights, the progress achieved over the past 30 years should reinforce the critical need to continue our work and to do it better. When human rights progress is achieved, people’s lives are better, our communities are stronger and healthier, and we are closer to realising our shared vision of a fairer, more compassionate nation.
[i] John W. Kingdon, Agendas, Alternatives, and Public Policies, New York, Longman, 2002.
[ii] William P. Quigley, Letter to a Law Student Interested in Social Justice, 1 DePaul J. for Soc. Just. 7 (2007) Available at: https://via.library.depaul.edu/jsj/vol1/iss1/4