The year ahead in human rights
Terror attacks have brought human rights into sharp focus over the past month, sparking debate around anti-terror laws, migration, discrimination and free speech. The Prime Minister’s promise to “never compromise our values in defending them” was a welcome statement but sits poorly with his Government’s actions over the past year. In 2015, human rights are set to feature strongly in public discussion, but vigilance is needed to ensure the political rhetoric on rights and freedoms is matched by positive action.
Terror laws
The threat posed by the Islamic State was used to justify rushing rafts of poorly drafted anti-terror laws through Parliament late last year. The new laws are characterised by poor drafting, the extension of coercive powers and the effective reversal of the onus of proof in new travel offences. Offences carrying lengthy jail terms for disclosing information about “special intelligence operations”, with no public interest defence, have been rightly criticised for undermining free speech and press freedom.
Many of the new provisions have little to do with the new problem of returning fighters, and the speed at which the laws passed, with the support of the major parties, prevented a proper opportunity to analyse, highlight and address the flaws.
The last tranche of proposed legislation mandating the retention of metadata by telecommunications companies, will return to be debated this year. Attorney-General Brandis has urged its passing following the recent attacks, despite the fact that access to retained metadata would have been of questionable use in relation to offenders already well-known to security agencies. If passed, the legislation will require the indiscriminate stockpiling of private data by private organisations for potential future use by security agencies without a warrant. The privacy risks, including through misuse and data security breaches, outweigh the potential law enforcement benefits.
Free speech
The Paris attacks have been used to try to reopen the debate around racial vilification laws. Commentary often overlooks existing free speech safeguards in the laws that protect artistic works and fair comment and that have protected racially offensive material in a comedy routine, a cartoon, a play and a Pauline Hanson book. The laws are working reasonably well and the Prime Minister has sensibly shut the door on further attempts at reform.
Free speech will be threatened by the Tasmanian Government’s efforts to allow corporations to sue for defamation and by the use of Tasmania’s new anti-protest laws that prioritise profits over expression. On a more promising note, the new Victorian Government is likely to wind back “move on” laws that gave police excessive powers to limit protests.
Continued threats to NGO advocacy and the Australian Human Rights Commission
While promising to protect “the values of our free and democratic life”, the Federal Government is likely to continue undermining the institutions and the organisations that hold it accountable.
Attacks on NGO advocacy, through a combination of targeted funding cuts, pressure and funding agreement restrictions will continue at the Federal level, although state elections may shift local policies.
Following on from the announcement of a 30% funding cut late last year, the Australian Human Rights Commission faces a difficult year. Already, the Prime Minister and two Ministers have launched an extraordinary attack on the Commission’s President, Gillian Triggs, describing a recent decision as “bizarre”, “offensive” and tending “to shake people’s confidence” in the institution.
It’s hard to avoid the conclusion that the cuts and criticism are payback designed to diminish our national human rights institution which has strongly criticised the government’s cruel immigration policies. There’s more to come with the Attorney-General yet to announce details of his planned restructure of the Commission.
Stopping the boats or stopping the persecution?
The political deal struck at the closing of Parliament last year saw legislation pass that gives a green light to breaching our international obligations to protect refugees, excludes rights to fair decision making processes, moves government decisions further from court scrutiny and increases the risks of serious, irreversible mistakes being made.
The repugnance of the legislation was only surpassed by the tactics used to secure its passage; the Minister leveraged the liberty of children he had the power to release from detention at any time in order to obtain a licence to mistreat asylum seekers who arrive in the future. The Minister also agreed to work rights for those on bridging visas and, over time, an increase in the refugee intake to 18,750 (still below the 20,000 intake when the Coalition took office).
Sadly, the change in Immigration Minister is unlikely to herald any change in approach, underscoring the importance of accountability through legal action and civil society advocacy.
The harm caused by our asylum seeker policies will increasingly play out in the courts over the year with litigation over indefinite detention and harmful conditions, the inquest into the death on Manus Island of Hamid Kehazaei and a decision on our High Court case on the government’s failed attempt to send 157 asylum seekers to India.
The resettlement of refugees in Nauru, Papua New Guinea and Cambodia will set an appalling precedent and provide logistical and diplomatic headaches for the government.
The challenge for civil society will be to shift focus and resources away from cruel and harmful deterrence based measures towards genuine regional solutions that provide safe pathways to protection for people facing persecution.
Foreign policy
Human rights progress through Australian foreign policy, on issues like women’s rights, will continue to be compromised by asylum seeker policies that have damaged our international credibility. The cost of those policies includes ignoring corruption, the breakdown in the rule of law and widespread human rights abuses in PNG, Nauru and Cambodia respectively.
The recent election of President Maithripala Sirisena in Sri Lanka however, provides an opportunity for Australia to change course; to stop blindly ignoring ongoing abuses and engage on stopping the persecution that drives mainly Tamils to flee on boats, including by supporting international efforts for war crimes accountability.
Similarly, cautiously positive statements by Indonesia’s new President Joko Widodo regarding the Papuan provinces provide a chance for Australia to start publically supporting measures to prevent abuses there, with lifting the media ban being the obvious first move. The lethal shooting of unarmed civilians in December and the reports of more military violence this month, shows that Widodo will need all the external encouragement he can get to take on the political ‘old guard’ to prompt culture reform within the Indonesian military. Human rights safeguards in Australian military cooperation with Indonesia are also long overdue.
Australia’s successful two year position on the Security Council recently ended and attention will turn to Australia’s candidacy for membership of the UN Human Rights Council in 2018. Australia’s campaign will be launched later this year but will be harmed by severe cuts to foreign aid and our contempt for international law when it comes to asylum seekers. Nonetheless, the candidacy should provide impetus to improve our human rights record both at home and in our engagement with UN human rights treaty bodies. The Human Rights Council’s Universal Periodic Review of Australia later this year, an important assessment of our human rights progress, provides a good starting point for Australia to commit to a range of improvements.
Aboriginal & Torres Strait Islander People’s rights
The Prime Minister will continue his welcome push for constitutional recognition of Aboriginal and Torres Strait Islander peoples, with a referendum likely to be held in 2017. Progress under the important Closing the Gap strategy has been mixed. Inadequate and over-crowded housing, high suicide rates, low education and employment opportunities and poor health outcomes will remain major problems along with the foreshadowed closure of remote communities in WA and SA for cost reasons.
The Prime Minister needs to live up to his promise of being the Prime Minister for Indigenous Affairs by properly resourcing Indigenous communities and organisations and by prioritising working in close partnership with them.
The spiralling rate of Indigenous imprisonment is likely to continue unabated, with continued risks of deaths in custody. Politicians speak about the need to address the crisis while ramping up the very law and order policies that help to cause it. Strong advocacy is needed for change; to implement solutions based on the wealth of available evidence on what works to cut crime, cut prison populations and strengthen communities. For political accountability and focus, justice targets need to be integrated into the Closing the Gap strategy.
Freedoms audit and disability report
At the end of 2015, the Australian Law Reform Commission will report to the Attorney-General on the range of Federal laws that should be amended to better protect “traditional rights and freedoms”. The report’s recommendations will provide a good opportunity for the Attorney to improve human rights protection, but judging by statements so far, are likely be ignored, except where they relate to business interests. The Magna Carta’s 800th anniversary this year provides further cause for scrutiny on why arbitrary detention wasn’t included in the Attorney’s list of traditional rights and freedoms for the Commission. You can’t get a more traditional freedom than the right not be locked up without just cause.
The recommendations of the ALRC’s disability report, handed down in December last year, should fare better and provide important momentum to modernise the treatment of disability under Federal laws improving the implementation of the UN Convention on the Rights of Persons with Disabilities.
Lesbian, gay, bisexual, transgender and intersex (LGBTI) rights
There’s cause for optimism on LGBTI rights. Pressure will increase over the year for the Prime Minister to allow a conscience vote on marriage equality. Victorian reforms to erase old criminal records for consensual gay sex will continue to be adopted in other jurisdictions, with the ACT following Victoria and NSW early this year and with two other states currently considering the reforms. Laws and policies should continue to be modernised to properly recognise transgender and intersex Australians, with focus in particular needed on the treatment of intersex infants. The discriminatory ban on adoption by same sex couples is also set to be lifted by the new Victorian Government.
Women’s Rights
It’s also promising that there is greater recognition by governments across Australia of the need to address Australia’s appallingly high rates of family violence – one of our most pressing human rights challenges. The greater political understanding around the causes of family violence needs to be matched by effective action to address it. A Royal Commission on the issue in Victoria will provide important scrutiny and focus.
Despite the high rates of family violence in Indigenous communities, Indigenous Family Violence Prevention Legal Services face funding cuts and uncertainty in 2015, while Indigenous women continue to be the fastest growing prisoner demographic in Australia.
The lack of women’s representation in the Federal Cabinet remains an embarrassment, although some progress was made by appointing Sussan Ley as the second Cabinet Minister in the recent reshuffle. The widening gender pay gap will continue to highlight the need to address systemic workplace sex discrimination.
Sexual assault remains a major problem, despite a number of law reform efforts, with marginalised and minority women particularly at risk. The Royal Commission into Institutional Child Sexual Abuse will continue its important work, having had its term extended by two years to the end of 2017.
Human rights Charter
The prospect of a Human Rights Act or Charter for Australia remains distant, but the 2015 review of Victoria's Human Rights Charter will provide an important opportunity for improvement.
Overall
The last few months of 2014 saw the Federal Government introduce laws that abrogate basic human rights at record speed – an extraordinary outcome when you consider the Government’s election promises to protect traditional rights and freedoms.
With a vacuum of political leadership when it comes to human rights, further political platitudes around defending our freedoms in the face of terror threats are unlikely to shift policy direction in 2015. Principled advocacy and action from civil society will be needed to prevent regression and advance human rights.
Hugh de Kretser is the Executive Director of the Human Rights Law Centre. He is on Twitter @hughdekretser.