Event
Date
Dr Helen Watchirs, ACT Human Rights and Discrimination Commissioner. Photographer: Peter Hislop
by Dr Helen Watchirs, ACT Human Rights and Discrimination Commissioner
Presented at Manning Clark House Weekend of Ideas "Australian Citizenship - is it really worth having?", 29-30 March 2008
Thank you for inviting me to speak today, and for Aunty Agnes' warm welcome to country. I'd like to begin by acknowledging the traditional owners of the land on which we meet today, the Ngunnawal people and the Ngambri, one of the clans that make up the Ngunnawal nation. I respect their continuing culture & the contribution they make to the life of this city & this region.
I will speak on several areas today where there have been significant challenges to human rights and civil liberties, many of them based on forms of systemic racism, eg the treatment of refugee applicants and migrants. I will cover more in depth anti-terrorism measures and the NT 'intervention' in indigenous communities. I will then propose the enactment of a national Bill of Rights based on the ACT Human rights Act 2004, which we now have nearly 4 years experience of. It provides a framework of dealing with the need to have some restraints on majority power so that the rights of minorities, whether citizens, refugee applicants, or permanent residents are protected.
Introduction
In my view most people believe in human dignity, respect, fairness ' where we argue is often only just about the labels, that is, using euphemisms instead of 'Human Rights' terminology ' eg ethics, values, equity and diversity). I thought that anti-discrimination laws were now so well-established that they would never be excluded. However, this changed for the worse with the suspension of the Federal Race Discrimination Act 1975 last year (32 years after its enactment) under the ATSI intervention in the NT. In retrospect, this move was a logical progression of our treatment of refugees and Muslims, seen in a dehumanising way of being 'the others'.
Recent anti-terrorism measures have resulted in decision-making, policies and laws that would formerly have been seen as unfair, arbitrary and discriminatory, highlighting the need for better legal protection of human rights and civil liberties.'The Haneef case is a dramatic illustration of the problems many people warned against of holding a person in detention indefinitely, as well as utilising pre-existing powers to revoke his visa. I look forward to the independent inquiry, albeit limited in tis terms of reference, by former NSW Supreme Court judge, John Clarke QC. Immigration law has long been an area immune from the Australian value of a 'fair go' in the case of non-citizens, with increasing moves towards unreviewable Ministerial discretions, overlooking their common humanity. Australia's reputation has been steadily eroded by adverse reporting on our immigration detention practices which has been found in some circumstances by the UN Human Rights Committee to amount to arbitrary detention, as well as exacerbating mental illness and sending some persons to countries where they risk torture. The HREOC Report in 2004 on detention of children resulted in a more humane form of detention in the community, with residential housing available for some families. Also the wrongful detention of Cornelia Rau and others has led to an improvement through the reporting by the Commonwealth Ombudsman of people detained for over two years. Thankfully the Pacific Solution for offshore processing in Nauru has been undone following the change of Federal Government. However, Christmas Island remains as a territory excised from the migration zone using a system not based on protection needs under the Refugee Convention, but rather the method of arrival.
There are also other areas where the values of diversity and autonomy have been eroded in favour of a concept of citizenship that is homogenizing, and which diminishes minority rights.'For example, the term 'multiculturalism' fell out of favour, while a formal citizenship test was introduced.'Meanwhile, the Indigenous 'intervention' saw a move away from self-determination, and a return to paternalism.
Australia slipped in the eyes of the world as a model international citizen and leader in human rights and is now having to play catch-up.'For example, Australia may now consider becoming party to the Optional Protocols to the Convention against Torture and the Women's Convention, which will enable 'communications' (like complaints) to UN treaty bodies monitoring torture and gender issues respectively. National gender issues highlighted by the former Sex Discrimination Commissioner Pru Goward, remain to be implemented, such as the need for a national paid maternity leave scheme (recommended in her 2002 Report A Time to Value), but I'm encouraged with the recent referral of an inquiry to the Productivity Commission. It's is a much bigger issue than whether David Jones is going to match Myer, Dominos and ALDI in granting staff paid maternity leave. Australia and the US are the only OECD countries without national a paid maternity leave. We also need a legal framework to equitably support family responsibilities as set out in the 2007 HREOC It's About Time Report.
The ACT Human Rights Commission has had several race discrimination complaints about Canberra restaurants involving the exploitation of Filipino workers working under 457 Visas. We have more recently received complaints from service providers recruited from Africa, and systemic discrimination by another industry where workers are too frightened to speak for fear of losing their jobs ' this may result in our office taking 'own motion' actions if they do not receive legal assistance. A Muslim security guard was victimised by his co-workers reporting him to the national anti-terrorism hotline - that is, they were over-alarmed and not alert of race and religious discrimination obligations. However, obvious racism is less common than subtle and complex forms.
The impact of the US International Trafficking in Arms Regulations (ITARS) on Australian Defence industries providing exports is a very important national and local issue. It is public knowledge that several defence contractors have sought race discrimination exemptions in most jurisdictions that have been granted by Equal Opportunity Tribunals in WA, Victoria, Queensland, SA and NSW to exclude workers who have foreign or dual nationality from proscribed countries (including China, Indonesia, Iran & Iraq) for security (and possibly trade) reasons. An exemption application under the Discrimination Act 1991 that I refused is now in the ACT Administrative Appeals Tribunal with a hearing scheduled in June 2008.
Anti-terrorism
Our response to terrorism defines us as a community - it is not worth losing the rule of law and central democratic values by over-inclusive laws in the name of national security. It is important to note the words of the former Secretary-General of the UN, Kofi Annan: 'a compromise on HR hands terrorists a victory'. Post 11 September 2001, the UN Security Council Resolution 1456 (2003) made it very clear that members were still required to comply with international law obligations, including human rights, refugee & International Humanitarian Law.
Under current anti-terrorism laws the there are challenges to the many rights - liberty (access to a court), fair trial (presumption of innocence), family, association, communication, movement, privacy, and religion. The most controversial measures are Preventative Detention Orders and Control Orders, which have a disproportionate impact on Muslims through racial profiling. They give the executive excessive powers, and too restrictive limits on full judicial review, and legal representation of detainees. PDOs are issued by the AFP initially for 24 hrs, then are able to be continued by an 'issuing authority' rather than a court ' they enable people to be detained incommunicado for limited periods, which are similar to practices in Northern Ireland some decades ago. Because there is no court hearing, the Evidence Act is not applicable, thereby allowing evidence obtained by torture, even in circumstances of rendition eg Mandouh Habib. COs can be made in the form of electronic tagging, movement, work, travel, communication, regular report place/time, submit photos & fingerprints. We have seen their application to people like David Hicks in Adelaide & Jihad Jack in Melbourne. These orders can be made ex parte (that is without the subject being present in court), but a return date set by court 'as soon as practicable'. There are 5 year criminal offences for breaching both forms of civil Orders ' in my view this is grossly disproportionate for breach of a PDO (eg disclosing this to another person), or a CO (eg house arrest). Paradoxically this enables dual executive & legal systems, where persons actually accused of terrorism offences have more rights than persons subject to PDOs or COs. HREOC President John Von Doussa described this legal regime as having many of the indicia of a Police State.
It is instructive to compare Federal legislation with the ACT Terrorism (Extraordinary Temporary Powers) Act 2006, in respect of which the ACT Attorney-General issued a Compatibility Statement under the Human Rights Act 2004. Its Preamble states that measures taken are necessary and effective, they contain safeguards against abuse, are evidence-based, intelligence-led & proportionate - ie they have the legitimate objective to deter, prevent, detect & prosecute terrorism. The ACT law requires a fair court hearing for preventive detention orders on limited grounds, including the threshold test of when it is reasonable and necessary, as well as the least restrictive means of preventing a terrorist act. It does not apply to children under the age of 18 years, as it conforms with the requirement to have detention only as a last resort for young people under the Convention on the Rights of the Child. The Act enables full legal representation of detainees. The Act allows detainees to have more communication with others (tell where, why and how long detained) ' it does not contain offences for people, including family members, who disclose that someone is subject to an order (following the UK model). The Act presumes the confidentiality of communication between lawyer and client. As recommended by the Federal Senate Committee, the ACT Bill has a sunset clause of 5 rather than 10 years. You may have read Andrew Fraser's article in the Canberra Times yesterday on backbenchers' views about the need to amend this legislation.
Former Chief Justice McHugh of the High Court, speaking in respect of the two cases Al Kateb & Al Kahafaji, regretted inability to change law regarding stateless asylum seekers in the absence of a national Bill of Rights. Compare this to the House of Lord's decision in the 2004 case of A & X v Secretary of State & Home Dept, where it issued a Declaration of Incompatibility under the UK Human Rights Act in respect of the Anti-terrorism Crime & Security Act 2001 which enabled indefinite detention of non-citizens. In 2005 the House of Lords found that evidence obtained by torture inadmissible: in A v Secretary of State for the Home Dept ' Lord Hoffman stated: 'The use of torture is dishonourable. It corrupts & degrades the state which uses it and the legal system which accepts it'.
A very interesting situation has arisen in the Victorian Supreme Court with Justice Bongiorno warning that inhumane conditions of detention in respect of 12 men charged with terrorism offences could be see as a breach of the right to a fair trial ' enough to possibly stay proceedings using the Charter of Rights and Responsibilities 2006 (which came into force in 2007). As stated by the former President of South Africa, Nelson Mandela in his 1994 book A Long Walk to Freedom:
'It is said that no one truly knows a nation until one has been inside the jails. A nation should not be judged by how it treats its highest citizens, but its lowest'.
Last month I visited the site of the Alexander Maconochie Centre, following the ACT Human Rights Commission's audit tabled in August 2007 of inadequate existing correctional facilities at Belconnen and Symonston. The fundamental aim of rehabilitation I think can be largely achieved by building a human rights culture in staff, as well as the impressive design which makes the AMC unique in Australia.
ATSI Intervention
You may have seen media coverage on the advice I gave to the ACT Chief Minister, Jon Stanhope, considering whether if the Federal Government's NT intervention to combat child abuse in remote communities in the NT were applied in the ACT (this is not just hypothetical as we have some jurisdiction in respect of Wreck Bay). In principle I support the intervention, but am concerned that in some parts it fails human rights norms and could mimic failed past policies. Of course our ACT & NT laws can, and have been in the case of civil unions, overturned by the Commonwealth exercising its Territories powers under the Constitution.
In my view to subject indigenous children to mandatory examinations without objective evidence of harm or real suspicion of abuse could itself breach human rights, violating domestic discrimination laws, as well as Australia's international human rights obligations. The former Federal Health Minister subsequently provided that health checks would only be conducted with parental consent, demonstrating that using a human rights compliance approach can make a real and positive difference.
In my view some of these measures are discriminatory because they only apply to one race (ie exclusively), as well as being likely to impact unfavourably on Indigenous communities. On their face these measures are discriminatory, but the human right of non-discrimination is not an absolute right. The Discrimination Act (as well as Federal Racial Discrimination Act, and international human rights law) provide for 'special measures' - positive discrimination to improve the status of a disadvantaged group. Obvious forms of this are affirmative action programs that enable, say Indigenous lawyers to be employed by Aboriginal Legal Services. It is difficult to regard some of the interventions to be 'special measures' when Indigenous communities had not been consulted in their formulation, as required under the UN International Convention Eliminating All Forms of Racial Discrimination (CERD). These measures do not appear to be effective in overcoming disadvantage and may in fact entrench or worsen existing discrimination because they mimic failed past policies that led to the Stolen Generations and are reminiscent of apartheid.
Section 30 of the ACT Human Rights Act 2004 (recently strengthened by amendments that came into force this month) requires that ACT legislation, such as the Discrimination Act 1999, must be interpreted consistently with human rights. Section 8 of the HR Act provides a general protection against discrimination on any ground, including race. In addition, s.27 protects the rights of minorities to enjoy their culture. There are also specific protections for children, informed consent to medical treatment, families & privacy. There are limits to human rights permitted under treaties, and this is replicated in section 28 (also recently amended) of the ACT Human Rights Act 2004, which allows 'human rights may be subject to reasonable limits set by Territory laws that can be reasonably justified in a free and democratic society'. Whether a limitation is 'reasonable' depends on whether it is proportionate - the test assesses whether:
the objective is sufficiently important;
the limitation on the right is rationally connected to the objective;
the limitation minimally impairs the right or freedom in question; and
is not out of proportion to the objective.
Although I absolutely agree that effective responses to child abuse and other related problems in these communities are sufficiently important objectives, and some of the measures may have in part a rational connection to these objectives, the supposed short-term benefits, if any, they might offer are not proportionate to their negative effects. The 2007 Little Children are Sacred Report noted the widespread breakdown of Aboriginal culture and society and recommended that its Report be implemented in 'consultation with, & ownership by the communities of these solutions.'
To protect children from abuse and achieve better general health outcomes, and improve economic opportunities for Indigenous communities, are consistent with obligations to protect people from violence, particularly children and women under the Convention on the Rights of the Child ('CRC') and International Convention on the Elimination of All Forms of Discrimination Against Women ('CEDAW'). These objectives are sufficiently important given the dire violence, alcohol and substance abuse, health, employment, housing, overcrowding and poverty problems in remote Indigenous communities. Although better attendance at school, (assuming these communities have them) will improve further education and employment opportunities, there needs to be the infrastructure in or around the community to provide those opportunities. There is little benefit in better education if there are no or few employment prospects. Similarly invasive medical testing alone that is not performed with consent or culturally appropriate, and lacking supporting interventions may not be useful. Fracturing families where there is no abuse would violates the rights of families as the natural and basic group unit of society.
For Indigenous communities to receive welfare services and resources from the government, they now need to meet conditions that are not imposed on other Australians, ie only enabling them to spend certain proportions on items such as food. There is little doubt that the intervention constitutes direct discrimination (which is why the Racial Discrimination Act was suspended), as it is a measure imposed only on Indigenous communities to access the same services that other Australians receive which are viewed as social security entitlements. These conditions play to the negative stereotype of Indigenous people, and put the onus on these communities in a punitive way, rather than working in partnership to seriously address the community's health and employment issues. They do not minimally impair rights, and lack a comprehensiveness funding for necessary health and other services and infrastructure, in order to properly support these communities to sustain long-term social change.
Tom Calma the Federal Aboriginal and Torres Strait Islander Social Justice Commissioner and Race Discrimination Commissioner called for preventative measures to stop violence reoccurring, and questioned the impact of abolishing the permit system that regulates access to private property ' this aspect of the intervention has been scrapped. He has led the positive 'Close the Gap' campaign with Cathy Freeman and Ian Thorpe, and stated that:
'The stakes are great and protecting our children is of paramount importance, but there are potentially adverse consequences of implementing a quick response to a complex social problem without widespread consultation with the communities and their leaders and practitioners who can provide professional advice and guidance.'
National Bill of Rights
I propose based on the experience in the ACT, that a national bill of rights would provide a forward-looking framework in order to avoid the erosion of civil liberties and human rights implementation that we have witnessed in recent times. Other states and territories have followed the ACT, eg Victoria became the first state to adopt a Charter of Human Rights and Responsibilities in 2006 (in force from 1 January 2007). A Consultative Committee in Western Australia and review in Tasmania have also recommended that human rights legislation should be adopted. Even if all States enacted local Bills of Rights there still Federal issues that can only be covered, like immigration and welfare laws and practices.
The moral compass of the ACT HR Act is contained in the Preamble - 'Human rights are necessary to live lives of dignity and value'. The Act has been criticised from both ends of the spectrum from being a 'Clayton's Bill' (i.e. ineffectual), to being a litigious feast for lawyers (former NSW Premier Bob Carr's view). The biggest impact of the ACT HR Act has been in influencing the formulation of government policy and new legislation. Government agencies need to comprehensively integrate human rights into the design, implementation, evaluation of programs, policies, as well as mainstream human rights in the development, interpretation & implementation of policy, legislation & service.
Our experience in the ACT, for example in relation to anti-terrorism measures, tells us that the process of providing human rights compatibility statements results in legislation that is more compliant with human rights.'Under a Federal Bill of Rights there would be fewer opportunities for legislators to ignore the possibility of broad powers being misused, and more safeguards would be put in place.
Critics of Bills of Rights argue that they are undemocratic, through 'unelected' judges having too much power. This approach is disingenuous, as does not properly acknowledge the democratic features of the model that has so far been adopted in Australia. In the ACT and Victoria we have ordinary HR legislation that operates on the basis of dialogue about rights between the different arms of government - the judiciary, which interpret and enforce laws; the legislature, which enact and amend statutes; and the executive, which administers and implements laws. Under this model, judges are not given the final say with respect to validity of legislation.'Moreover, the focus is on the front-end ' the drafting of legislation ' rather than litigation.'Even after litigation, amending legislation may be enacted to deal with decisions by judges concerning the interpretation of rights or the obligations of public authorities.
Recent amendments to the ACT HR Act means that it will now more closely follow the UK and overtake the Victorian Charter by not only having direct access to the courts, but also direct application to 'public authorities', widely defined as entities that exercise public functions. I think that opt-in proposal for the private sector will be very interesting, and is reminiscent of the UN Global Compact and the Corporate Social Responsibility movement. We look forward to the five-year review of the HR Act, in particular seriously considering the inclusion of economic, social and cultural rights, especially housing, education and health.
Conclusion
International human rights treaty obligations, such as the ICCPR, makes governments legally responsible for formal implementation, but partnerships with civil society, including bodies like Manning Clark House, is vital for real change in the community. No law can be a magic bullet for implementing human rights and solving complex social justice issues, but it can be a workable step forward in strengthening the rule of law and democracy. However, Bills of rights have substantive and symbolic impact ' they are a source of focus for social change, and a measure against which our local laws and actions can be compared to international standards in order to prevent backsliding in human rights. After 4 years in the ACT we can say with some certainty that none of the dramatic changes anticipated by either critics or supporters of Bills of Rights have come to pass - there has, however, been a marked increase in the awareness and debate about human rights principles due to increased scrutiny now required of proposed legislation and systemic review of detention practices.
The ACT community is comparatively tolerant and celebrates diversity. However, we should be complacent about this, and we need to continue working hard to promote harmonious understanding and awareness of human rights and multiculturism. My final message is one of hope for the future, especially with the national 2020 summit next month, with Hilary Charlesworth and Julian Burnside being leading participants.