The Government has started well. It appears to be taking a more compassionate view of people in detention. It has abolished Temporary Protection Visas. It is holding an enquiry into the ‘Citizenship Test’ and will hopefully create a test that makes more sense, does less damage, and is not so heavily biased. But the Government has not said anything of which I am aware about our interrogation laws, about the greatly increased powers, including powers to detain those known to be innocent, given to state and federal police and ASIO in the so-called ‘War on Terror’.
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I have been asked to give an assessment of the British Human Rights Act 1998 (HRA), now in its eighth year, and to suggest some lessons that Australia might draw from the British experience. Inevitably, the latter leads one to focus on the more negative aspects of our experience, so I want to start with the good stuff before dwelling at greater length on the problems that you might want to avoid.
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Much recent debate regarding the need in Australia for legislative Charters of Human Rights fails to take into account the value added by such instruments. Charters of Human Rights have great potential to enhance public services and address disadvantage. They can improve lives.
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In recent times, Australia has suffered a crisis of credibility when it comes to human rights compliance. This is most evident in the area of immigration. Protection of borders has regularly predominated over the protection of fundamental rights of those within them. So too, has political expediency. There has been serious slippage in a number of areas, to the extent that it can be considered systemic. Notorious amongst these has been the acute and egregious retreat from fundamental human rights obligations in the area of Immigration law, particularly in relation to the treatment of asylum seekers and refugees in Australia. Australia’s recent approach to asylum seekers and refugees has been radical and degenerative in nature. The approach has created one of the toughest and most extensive anti-asylum seeker systems in the Western world. From a human rights perspective Australia’s approach represents, in many respects, the Western world’s worst practices and a potentially problematic precedent.
Read MoreTwelve years. Twelve long, dark years. Over a decade during which Australia’s human rights performance was comprehensively set back. But at last it’s over. There is a lot of ground to be made up, things that need to be undone and undone things that need to be done. We are entitled to have high expectations of the new federal Labor Government but the human rights agenda is a big one. Where to begin?
Read MoreNew Year’s Day heralded more than just the start of another year; it marked an important milestone in Australian democracy as the Victorian Charter of Human Rights and Responsibilities became fully operational. Based on similar mechanisms which operate successfully in the UK, New Zealand and our own ACT, the Charter is a common sense form of democratic insurance that holds government accountable – one that ensures that those who make decisions make them in accordance with civil and political rights.
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We write to you outlining key areas of policy where we believe that Australia can and should do more to promote and protect human rights. On foreign policy, Australia is a significant political actor and donor in the Asia-Pacific region, so your government is well placed to play a leading role in promoting human rights at a regional and international level. Over the past decade, the Australian government was notably absent or obstructionist in such efforts. The significant international attention paid to your signing of the Kyoto Protocol and your statement at the Bali conference on climate change shows the clout Australia has and the ways in which it can be put to good use.
Read MoreIn early November, the Australian Government was scheduled to appear before the UN Committee against Torture to discuss Australia’s compliance with the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment over the last 5 years. Less than a week before the review, the Australian Government withdrew, citing that an election had been called and the Government entered ‘caretaker mode’. At best, this is a very weak rationale. At worst, it is a blatant attempt to avoid human rights scrutiny in the context of an election.
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On 3 September 2004, in the County Court of Victoria, I, Vickie Lee Roach, Indigenous woman, mother of one child and the daughter of an aging mother, was sentenced to ‘death’. Okay – so I won’t be ‘hanged by the neck until dead’, or strapped to a trolley and fed an intravenous cocktail of lethal drugs. I won’t face the gas chamber, nor blindly await a volley of rifle shots with my back against a wall. The truth is, under the law as it stood that year, I and thousands of other prisoners, faced a death sentence of a different kind; in attracting a prison sentence of 3 years or more, we also incurred the additional penalty of forfeiture of our civil rights, expressly, the right to vote.
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In June this year the Human Rights and Equal Opportunity Commission (‘HREOC’) published a report called Same-Sex: Same Entitlements. We put federal laws under the human rights microscope and we found that 58 of them breach the right to equality before the law and the right to be protected from discrimination on the grounds of sexual orientation. The discrimination against same-sex couples is there on the statute books in black and white. And the discrimination exists around basic issues of employment entitlements, workers’ compensation, tax, social security, veterans’ entitlements, health care, superannuation, aged care and migration.
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In 1854 a small group of miners staged a rebellion against the Victorian Government. It was an armed rebellion with a strong ideological purpose. Measured against today’s laws, it was plainly a terrorist offence. Nevertheless, in the complex weave of Australian values, it holds an honoured place in our history and heritage. Eureka’s visible symbol is the flag of the Southern Cross. It was sewn by the miners’ wives and partners and remains a treasured part of our history. Now, it has become an offence for some Australians to show the Eureka flag.
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This year marks the 40th anniversary of the 1967 referendum that saw more than 90% of eligible Australians vote in favour of the recognition of Aboriginal and Torres Strait Islanders as fellow citizens. Our country's most successful referendum enabled Indigenous Australians to be counted in the national census of the population and gave the Commonwealth Government power to make specific laws in respect of Indigenous people. While the referendum was a turning point in Australian history, commemorations of the event are also a stark reminder of the problems that still exist for Indigenous Australians.
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The government’s dismissive response to a recent UN report which investigates the state of housing in Australia offers little promise that we will start to see a new commitment to making housing more accessible and affordable for all Australians.
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Torture, the sale of children, arbitrary detention, unlawful killings, extreme poverty and attacks against human rights defenders are all abuses that are investigated and often prevented by independent United Nations human rights experts. However, the UN Human Rights Council (‘Council’) is considering measures to eliminate or weaken the role of these effective human rights champions.
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The Australian Government recently signed the new Convention on the Rights of Persons with Disabilities in a ceremonial opening of the Convention on 30 March 2007 at the UN Headquarters in New York. This is a significant achievement for people with disability in Australia and globally, many of whom have been engaged in the development of the Convention over many years. The Australian Government is to be congratulated for its contribution to the development and signing of the Convention and for taking this important step in the development of international human rights law. Sadly, however, the signing of the Convention on the Rights of Persons with Disabilities is one positive step amongst an accumulation of much reluctance on the part of the current Australian Government.
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Victoria’s Charter of Human Rights and Responsibilities has now been in force for three months. Although it is too early to evaluate the Charter’s impact, some early insights and reflections are timely. UK Daily Times columnist Melanie Phillips (The Age, 21 March 2007) would have us believe that Victoria has enacted a ‘judicial delivery system for cultural Marxism’. Conservative politicians and commentators made similarly dire predictions prior to the Charter’s commencement, deriding it as a ‘monstrous attack’ on democratic traditions that would empower minority groups and left-wing judges. Meanwhile, the Charter’s proponents describe it as landmark legislation that will strengthen democracy, promote accountability, and ensure respect for fundamental rights and freedoms.
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‘Activism’ has been copping a bit of flack recently. Back in October 2005, The Australian columnist Janet Albrechtsen had a go at civil liberties groups, calling them ‘a small band of activist lawyers’ who use the phrase ‘civil libertarian’ as a ‘smokescreen intended to hide political and personal agendas cunningly camouflaged as community welfare’.
Read MoreContrary to what some might have us believe, 1 January 2007 will not, in retrospect, be identified as the date when the corrosion of Victoria’s parliamentary democracy began in earnest with the commencement of the Charter of Human Rights and Responsibilities. Rather, if we fully exploit the opportunities afforded by the Charter, the Equal Opportunity and Human Rights Commission would argue that we are actually embarking on a path of change that will fundamentally enhance not just our system of government, but our community in general.
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The Federal Attorney-General, Philip Ruddock MP, held up the example of Atticus Finch in a recent article in the Australian in which he attacked pro bono lawyers, saying that, ‘an increasing shade of moral vanity colours pro bono work’. In particular, Mr Ruddock attacked lawyers for attempting to effect ‘broader social and political change’.
Read MoreIt is almost 40 years since the last person was hanged in Australia. Today, the death penalty has been abolished in every Australian jurisdiction. Opposition to the death penalty attracts bi-partisan political support. Yet, in a region where many of our closest neighbours still maintain the death penalty, I believe Australia can – and should – take a stronger stand against state sanctioned execution.
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