A human rights vision for the new Attorney-General

In her maiden speech to Parliament in 1998, Australia’s new Attorney-General spoke of her long-term vision for the nation’s legal system. For Nicola Roxon, values of fairness, dignity and equality were recurring themes. The Australian Human Rights Commission will no longer be “chronically underfunded”, she said. Women will be “truly equal”. Protected by “workable sex discrimination legislation”, they will be appropriately represented as judges and around boardroom tables. It is a vision which many Australians share. The 2009 National Human Rights Consultation, which received over 35,000 public submissions, demonstrated that human rights matter deeply to Australians, resonating with democratic values such as the rule of law and a fair go.

The Consultation also demonstrated, however, that our laws and institutions do not adequately protect human rights, particularly for vulnerable or disadvantaged groups. There was a strong view, it found, that “we could do better in guaranteeing fairness for all withinAustraliaand in protecting the dignity of people who miss out”.

Thirteen years after her maiden speech, Attorney-General Roxon is now in a position to make her prescient vision a reality.

So what should be the priorities for an Attorney-General committed to human rights, equality and the rule of law?

First, the Attorney-General should enhanceAustralia’s anti-discrimination laws. Strengthened equality laws would contribute to social cohesion, higher productivity and participation, and improved outcomes in areas including education and health. The equality law consolidation process initiated by Roxon’s predecessor, Robert McClelland, is an important opportunity to strengthenAustralia’s complex anti-discrimination regime, with the government keen to streamline laws and reduce their regulatory burden. The key measure of Roxon’s success, however, will be the effectiveness of the revised laws in preventing and remedying discrimination and promoting substantive equality.

Second, and again building on the positive work of McClelland, the new Attorney-General should strengthen the protection of human rights in law. The Human Rights (Parliamentary Scrutiny) Act, passed on parliament’s last sitting day this year, is a modest but important step in this direction. It requires that all new legislation be developed with fundamental human rights and freedoms in mind. The Human Rights Framework of which this new law is part is due to be reviewed in 2014. Roxon should use this review to lead the enactment of a national Human Rights Act.

It is in the interests both of persons deprived of liberty and also the broader community that all places of detention promote rehabilitation and social integration. Unfortunately, many places of detention – whether prisons, psychiatric hospitals, police cells, immigration detention centres or disability facilities – fall well short of this aim. As a third priority, therefore, the Attorney-General should enhance oversight of places of detention by immediately ratifying the Optional Protocol to the Convention against Torture. The Optional Protocol aims to prevent ill-treatment by establishing national and international systems for independent monitoring and inspection of all places of detention.Australiasigned the Optional Protocol in May 2009. Since that time, however, progress has been slow, with wrangling between the states and the Commonwealth about the modest bill for detention oversight. This is despite evidence as to the very high social and economic costs of failing to prevent and redress ill-treatment.

As a fourth priority, and as recently recommended by a Senate committee, the Attorney-General should order a review of people smuggling offences under the Migration Act. These are the provisions under which a number of vulnerable Indonesian children have been detained for extended periods in adult prisons. Such a review is necessary to protect the rights of children and ensure that the offences, which carry mandatory gaol sentences, are appropriate and effective.

As a fifth priority, the Attorney-General should take urgent steps to address issues of Aboriginal and Torres Strait Islander disadvantage and disenfranchisement. Drawing on her experience as Health Minister, Roxon should work with all Australian governments to include ‘justice’ within the key areas covered by the ‘Closing the Gap’ program. Just as there are targets to close the life expectancy gap, we need concrete targets to reduce Aboriginal and Torres Strait Islander imprisonment and re-offending.

Roxon should also work hard to ensure the success of a referendum to recognise Aboriginal and Torres Strait Islander peoples and guarantee against racial discrimination inAustralia’s constitution. As the president of the Business Council of Australia recently wrote, such recognition will contribute in both a “symbolic and practical” way to equality and social wellbeing.

Of course, this is a far from comprehensive human rights agenda. There is much remedial work to be done in the reform of counter-terrorism laws, for example, and much agenda setting work in areas such as business and human rights. Together, however, principled leadership and energetic action in these priority areas could go a long way to realising the vision of a nation which respects and protects human rights – a vision shared by Nicola Roxon those thirteen years ago.

Phil Lynch is Executive Director of the Human Rights Law Centre