Lord Bingham - 'Dignity, Fairness and Good Government: The Role of a Human Rights Act', Speech by Senior Law Lord to Human Rights Law Resource Centre (9 December 2008)

"It would clearly test to destruction the tolerance of the ordinary red-blooded Australian to have a Pom getting off the plane from London and telling them how to run their country.  So I shall not presume to say how the current human rights debate in this country should be resolved.  But perhaps I may contribute some thoughts, prompted by our own experience in the United Kingdom, acknowledging as I do so that the Australian context, while in some ways similar, is in others significantly different."


For Lord Bingham's full speech, click here.

 

Lord Bingham, former Senior Law Lord of the United Kingdom, addresses the HRLRC

Ensuring Substantive Equality through the Elimination of Gender Stereotypes

Simone Cusack If I were Attorney-General, I would prioritize, as an issue of national importance, the elimination of discrimination and the realization of substantive equality for men and women.  In so doing, I would seek, inter alia, to combat the root causes of discrimination and inequality, including, in particular, wrongful gender stereotyping.

Gender stereotypes are generalised views of attributes possessed by, or the roles that are or should be performed by, men and women respectively.  Gender stereotypes are not necessarily harmful or discriminatory.  As journalist and social commentator Walter Lippmann rightly pointed out in 1922, gender stereotypes can, for example, be useful tools to help process the social complexity of the world.  However, when stereotypes are applied in ways that ignore individuals’ needs, wishes, abilities and circumstances, or that create gender hierarchies, human rights are violated.

Gender stereotyping affects men and women.  Take the example of the sex-role stereotype that women should be primarily caregivers.  The operation of this prescriptive stereotype has deprived many women of the opportunity to participate in public life, gain economic self-sufficiency, and forge identities independent of their role as caregivers.  It has also deprived society of their valuable contributions.  At the same time, this stereotype has deprived many men of the opportunity to participate in caregiving, and denied them recognition of their role as carers.  As the Constitutional Court of South Africa explained in President of the Republic of South Africa v Hugo, this harms men by failing to recognise their equal worth and dignity as fathers, carers and individuals.  It also burdens them with the responsibility of being primary breadwinners.

Despite significant strides, wrongful gender stereotypes remain socially pervasive and persistent in all sectors of Australian society.  This was recently evident during the national debate concerning paid maternity leave.  Largely invisible from this debate was the role that men play in caregiving.  While the provision of paid maternity leave is essential to enable women to recover from the physical act of childbearing, gender stereotypes prevented a more robust debate about the role of both parents and the broader community in the provision of childcare.  Stereotypes also limited debate about the provision of childcare in same-sex relationships.  What this debate teaches us is that, while it is necessary to eliminate direct and indirect discrimination, it is not sufficient to achieve substantive equality.  The Australian Government must go further; it must reformulate its laws, policies and practices to ensure that stereotypes do not devalue men or women, or script them into rigid and pre-determined sex-roles.

The rights to equality and non-discrimination require respect for the equal and intrinsic worth of all human beings, both men and women; it is imperative to honour the basic choices they make (or would like to make) about their own lives, and enable them to shape their own identities free from stereotypes.

If I were Attorney-General, I would adopt a number of measures to eliminate the wrongful forms of gender stereotyping that continue to impede efforts to eliminate discrimination and achieve substantive equality.  Such measures would include the following.

First, as Attorney-General, I would seek to ensure Australia’s compliance with international instruments, such as the Convention on the Elimination of All Forms of Discrimination against Women, which require States Parties to eliminate wrongful and discriminatory stereotyping.  In this connection, I would seek to ensure that all branches of government refrain from gender stereotyping and, where appropriate, take positive measures to eliminate and remedy this wrong.  As Justice L’Heureux-Dubé of the Supreme Court of Canada explained in R v Ewanchuk, ‘individuals should be able to rely on a [legal] system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions’.  Gender stereotypes should not be permitted to surface in a state’s legal system, and courts should denounce laws, polices and practices ‘which not only perpetuate archaic myths and stereotypes … but also ignore the law’.

Second, if I were Attorney-General, I would follow through on the recommendation of the Joint Standing Committee on Treaties to ratify the Optional Protocol to CEDAW.  In so doing, I would underscore the importance of ensuring access to an international means of redress for violations of women’s rights, including in cases of stereotyping.  This would send a clear message that Australia takes seriously its commitment to achieving substantive equality.

Third, as Attorney-General, I would seek to take advantage of the opportunities presented by the reviews of the Sex Discrimination Act 1984 (Cth) and the Equal Opportunity Act 1995 (Vic) to highlight the linkages between stereotyping and systemic discrimination and inequality in Australia.  In particular, I would work together with stakeholders to develop a national action plan to address the stereotyping phenomenon.

Finally, if I were Attorney-General, I would advocate for a national Charter of Human Rights, and undertake an inquiry into the merits of enacting a federal Equality Act.

In conclusion, in order to combat discrimination and ensure substantive equality, greater priority must be given to the elimination of wrongful gender stereotyping.  If I were Attorney-General, I would seek to give wrongful gender stereotyping the attention and resources that it requires.

Simone Cusack is a Public Interest Lawyer at the Public Interest Law Clearing House (Vic).  She is co-author (with Prof Rebecca J Cook) of Stereotyping Women: Transnational Legal Perspectives (forthcoming)

Homelessness and Human Rights

Caroline Adler If I were Attorney-General, I would grab the opportunity that the Government’s Homelessness White Paper presents to introduce legislative reforms to protect the rights of people experiencing homelessness.  I would not be deterred by the current global financial crisis, and I would build on the Prime Minister’s rhetoric around homelessness to convince my cabinet colleagues that tackling the issue of homelessness is increasingly urgent and long overdue.

Through this process, I would make myself available to hear the experiences and ideas of people experiencing homelessness and to try and comprehend the rights violations they experience on a daily basis.  I would listen to this group, who remain among the most marginalised and powerless in our country, and heed their words:

Our human rights don’t exist.  We are homeless and it (is) looked upon as our fault.  Sometimes it is, other times not, but if someone keeps falling should we pick them up or walk straight over them, which is what’s being going on too much. (participant in Homelessness Consumer Forum, June 2008)

On the basis of my consultation, I would move that a Federal Charter of Rights be introduced to try to counter the stigma, disadvantage and social exclusion that people homeless people experience everyday.  My discussions with people homeless people have taught me that a Charter of this kind has no meaning unless it incorporates economic, social and cultural rights.  Crucially, I would push for the right to adequate housing to be translated into legislation in Australia.

In addition to a Federal Charter of Rights, I would demand that a national Homelessness Act be introduced as a demonstration of my government’s commitment to the goal of ending homelessness in Australia.  This Homelessness Act would take a broad and holistic approach to solving homelessness through a human rights framework.  Where a Federal Charter of Rights failed to do so, this legislation would enshrine the right to adequate housing as it appears in international law.  In particular, it would provide for an enforceable right including a right to shelter and crisis accommodation as well as longer-term housing options.  It would also impose obligations on my government to realise peoples’ right to adequate housing and commit to a long-term and sustainable response to homelessness.

In addition to an overarching Homelessness Act, I would also move to implement a number of immediate legislative reforms necessary to ameliorate social and living conditions for people experiencing homelessness.  I would work with my state-based colleagues to try and ensure similar reforms were introduced in all state jurisdictions across Australia.

Regrettably, discrimination on the basis of a persons’ social status, particularly in the provision of accommodation and goods and services, remains an endemic problem across Australia.  I would use the important research and recommendations coming out of the Victorian Equal Opportunity Act Review to demonstrate the need to outlaw discrimination on these bases at the Federal level.  Although the recommendations coming out of the Victoria Review refer to homelessness rather than social status more broadly, I would make the case that, at a Federal level, equal opportunity legislation must protect people against discrimination on the basis of their homelessness, their unemployment or their receipt of Centrelink benefits.  I would argue that, if my government is serious about ‘social inclusion’, this type of protection is a base level requirement, and then make sure that equal opportunity legislation is amended accordingly.

Working with my state-based counterparts, I would advocate for significant changes to state laws that impact in a negative or discriminatory way against people experiencing homelessness.  At the top of my list would the public space laws which came in for criticism by the then UN Special Rapporteur on the Right to Adequate Housing who, after his official country visit to Australia in 2006, concluded that ‘laws such as begging laws, public drinking laws and public space laws, should be revised and amended to ensure that fundamental human rights are protected’.  These laws have the effect of criminalising poverty and homelessness and do nothing to address the root problems which relate to a critical lack of adequate income and housing for many Australians.

Finally, I would work to keep my government accountable to ensure that the White Paper we are about to publish moves beyond the rhetoric, recognises the rights of homeless people, and takes concrete legislative and funding steps towards the elimination of homelessness in Australia.

Caroline Adler is Manager of the PILCH Homeless Persons’ Legal Clinic.  The Clinic was conferred with the Australian Human Rights Law Award in 2005.

Prisoners’ Rights Would be Protected Too

Melanie Schleiger Australia’s prisons suffer from chronic overcrowding and a lack of basic health services.  There are prisoners in Tasmania who are not getting three square meals a day.  The Queensland Parliament is considering a Bill that makes it even harder for prisoners to complain about sexual harassment, vilification and discrimination, and Victoria has just passed legislation that further decreases prison accountability.  If I were Attorney-General, I would meet with my State and Territory counterparts and the Ministers for Corrections and ask them why our regard for the human rights of prisoners has plunged so low?

Following this discussion, I would seriously reconsider the appropriateness of engaging private business to operate our State prison services and conduct an immediate inquiry into this issue.  I would then overhaul the current system of prison accountability, implementing a scheme of regular independent inspections, public reporting and monitoring of prison conditions and management.  I would also consider alternatives to detention, such as restorative justice and therapeutic jurisprudence.

However, on the top of my list of things to do would be to immediately repeal the Corrections Amendment Act 2008 (Vic), which denies justice to prisoners who have been abused or wrongfully treated and does nothing to benefit the victims of crime that it claims to assist.  I would then breathe a sigh of relief that this abominable law lasted only two weeks (having been passed by the Victorian government on 12 September 2008).

Under the Act any compensation paid to prisoners by the State or private prison operators is quarantined for at least twelve months and publicised in newspapers and on the internet, purportedly for the benefit of victims with potential claims against the prisoner.  This perversely links a victim’s chances of obtaining compensation to the wrongful treatment of their offender.  The victim must rely, first, on their abuser being abused in turn and, second, on the prisoner making a claim for compensation that they are unlikely to ever receive.

The Act will result in various human rights breaches, including invasion of privacy, increased litigation costs, and the indignity of having the perpetrator of a wrong confiscate what they have been ordered to pay as recompense.  This will deter prisoners from pursuing damages, irrespective of how badly they have been treated.  Women prisoners sexually assaulted by prison guards, prisoners denied medical care, prisoners bashed and abused in circumstances that could have been prevented and others are unlikely to pursue a claim knowing that any compensation will compulsorily be taken from them and advertised in a newspaper.

This compounds the multiple and interrelated forms of serious disadvantage already faced by approximately half of Victorian prisoners in custody, including major mental illness, trauma from childhood sexual abuse, homelessness and unemployment, as well as illiteracy and a lack of education.

Worse still, by deterring compensation claims, the Act makes our prisons and prison officers even less accountable.  This is of particular concern given reports by the Victorian Ombudsman indicating that complaints about Victoria’s private prisons have increased by as much as 400% in the past two years, and some prisons are ‘not fit for human habitation’.  In February this year, Professor Richard Harding described the current system of monitoring abuse and corruption in Victoria’s jails as ‘well short of what a democratic society is entitled to.’

Currently, civil law remedies that are available to prisoners, such as remedies under anti-discrimination legislation, provide the only independent and publicly transparent examination of prison practices.  This public scrutiny is vitally important given that prisons are custodial institutions shielded from public view, with potential victims who face multiple barriers to accessing justice.  It is therefore essential to not only repeal the Act, but also to strengthen the powers of the Ombudsman or establish an independent prison watchdog with powers to release detailed public reports about prison conditions and management.

It is equally essential that specialised legal services for prisoners receive further funding.  Prisoners have complex legal needs, so access to specialised legal services is imperative.  A recent report by the Law and Justice Foundation of NSW noted that a lack of resourcing resulted in each inmate having only five or 10 minutes to discuss their case with the visiting legal advice service.  So I would increase funding to those services and ensure that prison policies do not unnecessarily hinder access to legal resources and advice.  Alternative methods of providing access to community legal services should also be considered, such as through video conferencing facilities.

Human rights belong to us by virtue of our humanity and are not forfeited on entering jail.  As the New Zealand Human Rights Commissioner Rosslyn Noonan says, ‘People are sent to prison as punishment not for punishment.  Their punishment is the deprivation of liberty and they should not be subjected to behaviour that would be criminal outside a prison.’

Melanie Schleiger is on secondment to the Human Rights Law Resource Centre from Lander & Rogers.  The views expressed in this article do not necessarily represent the views of the firm. 

Human Rights and Business in Australia and Beyond

Shanta Martin If I were Attorney-General, I would thank my predecessor, the Hon Rob McClelland MP, for a job well-started – the job of getting Australia back on track in terms of our commitment to human rights nationally and internationally.  Of course, it goes without saying that I would also thank my predecessor (in anticipation at this stage!) for starting the ball rolling on a National Charter of Human Rights.

So let us assume for the moment that a National Human Rights Charter is firmly entrenched and well supported.  Needless to say, laws that had been passed to circumvent human rights would have been amended or repealed and replaced with fairer legislation.  This would include laws such as the Native Title Amendment Act for which Australia has been roundly condemned by the United Nations Committee on the Elimination of Racial Discrimination, and the Northern Territory intervention legislation which suspended the operation of the Racial Discrimination Act.

Having contributed to the important process of fulfilling human rights within Australia, I would look towards ensuring Australia’s human rights obligations were also being realised in the international context.  I would immediately endorse the United Nations Declaration on the Rights of Indigenous Peoples and, in collaboration with other relevant departments, work with Aboriginal and Torres Strait Islander peoples to design programmes to put the Declaration into practice.

I would also take a proactive role in developing both a national and an international response to what is essentially a transnational issue – the impact of multinational businesses on human rights.  Australia is home to a large number of transnational companies (TNCs), in particular mining, oil and gas companies which have significant influence on human rights abroad.  Australia has obligations not only to ensure the protection of human rights within our country but also to take steps to protect human rights where Australian companies operate outside the country.  These responsibilities have been reaffirmed recently in the report of the UN Special Representative to the Secretary General on Business and Human Rights, and are consistent with the general obligations that all states accept in joining the United Nations; the obligation to engage in international cooperation for the realisation of human rights contained in the UN Charter.

I would seek to elaborate a three-part system; first, it would require Australian TNCs to take steps to ensure compliance with their responsibility to respect human rights; second, it would elaborate a mechanism in Australia accessible to communities affected by Australian companies overseas who have not been able to resolve their complaints locally; and third it would seek to work with and build regulatory capacity in countries where Australian companies operate.

Despite acceptance by some in industry of the need to respect human rights and operate in a way that contributes to sustainable development, there are not presently any established standards on how to address community complaints of human rights violations.  By establishing procedures to ensure that community grievances are addressed at the earliest opportunity, companies can be proactive in both resolving grievances and in preventing circumstances from arising that result in human rights being violated.

Regulatory requirements within Australia could compel Australian companies to ensure they, their subsidiaries and suppliers over which they have significant influence undertake human rights impact assessments (HRIAs) prior to commencing operations and establish company level complaints mechanisms.  Complaints mechanisms should be rights-compliant, transparent and participatory.  Reporting on HRIAs and on the functioning of complaints mechanisms could be linked with ASX listing rules.

To assist Australian companies, I would establish an agency whose role would be to work with our TNCs to provide advice in the establishment of HRIA processes and company level complaints mechanisms.  The agency would also be available to work with host State agencies to increase local capacity to investigate and resolve disputes between communities and corporations.

In addition, however, it is important to recognise that some of the most egregious circumstances that result in community complaints may not be resolved by having a company-established grievance process.  Through my experience as the Mining Ombudsman at Oxfam Australia, I have seen how a third party that is independent of the mining industry and trusted by communities can facilitate positive tangible change.  In Papua New Guinea, for example, the Tolukuma Gold Mine, which for years was operated by an Australian-based company, dumps thousands of tonnes of toxic waste directly into the river.  Appalled by the desecration of their river, clean water has been a demand of affected communities since the mine started operations in 1996, but had been consistently ignored.  As a third party intervenor, I was able to facilitate local non-government organizations, community members and the company to come to the table and propose new means of resolving issues.  Clean water is now flowing in two villages for the first time in 12 years, with more villages to be addressed soon.  The company also committed to having zero impact on the river within three years.

Given the many examples in which companies have failed to respect the human rights of women and men in local communities, there is a need to ensure that, where required, communities have access to a body independent of the company.  With input from industry and other stakeholders, I would seek to establish an independent complaints body capable of investigating grievances and assisting communities whose human rights are affected by Australian companies abroad.  The independent body would be available where local communities have not been able to resolve their complaints through company level or host state mechanisms in a timely manner.  Parent companies would be encouraged to incorporate a condition to cooperate in investigations by this complaints body into contractual relationships with subsidiaries or suppliers, as well as in agreements with the host State.

In creating this complaints mechanism, I would work with the Minister for Foreign Affairs and his peers abroad to encourage support for the initiative in other countries and to allow the independent complaints body to engage in investigations of corporate activity.  In particular, I would seek to encourage states that are host to Australian and other transnational corporations to build into local laws, regulations and permit conditions, the need for large businesses to undertake HRIAs and establish complaints mechanisms.  Consistent with Australia’s obligation to engage in international cooperation for the protection of human rights, I would also work with my colleagues in the aid program to look at means of improving the availability and capacity of host state independent investigative mechanisms to resolve community concerns – including human rights commissions and ombudsman bodies.

With these systems in place, I would look back on this 60th anniversary of the Universal Declaration of Human Rights and recall just how much Attorneys-General can contribute to the realisation of human rights both in Australia and overseas.  I would then look forward … to establishing a truly international system of transnational corporate responsibility for human rights.

Shanta Martin is Mining Ombudsman and Extractive Industries Advocacy Coordinator with Oxfam Australia

The Hon Rob McClelland (Commonwealth Attorney-General) - 'Strengthening Human Rights and the Rule of Law', Speech to HRLRC

On 7 August 2008, the Human Rights Law Resource Centre hosted a seminar with the federal Attorney-General at which he delivered a paper entitled, 'Strengthening Human Rights and the Rule of Law'.

The speech included a number of significant human rights announcements, including that:

  • The Government is issuing a standing open invitation to the Special Procedures of the UN Human Rights Council
  • The Government proposes to ratify OP-CAT, OP-CEDAW and the OP to the Disability Convention
  • The Government proposes to enact a new federal offence of torture, with extraterritorial effect
  • The Government has appointed Justice Catherine Branson as the new President of the Human Rights and Equal Opportunity Commission

Additionally, Ros Grady of Mallesons Stephen Jaques announced that they will provide the Centre with a secondee for 6 months to assist us with our work around a national Charter of Rights.

Federal Attorney-General, the Hon Rob McClelland MP, addresses the HRLRC

Promoting the ‘Responsibility to Protect’

Lucy McKernan If I were Attorney-General, after pinching myself and then proudly celebrating the fact that I was the first female Attorney-General of Australia, I would turn my gaze to the international sphere and ask: how might Australia best contribute to international and regional justice, peace and security?  One project that has the potential to make a significant contribution to international justice is advocating for the acceptance and implementation of the responsibility to protect (‘R2P’).  R2P is an emerging international norm that aims to prevent genocide and other mass atrocity crimes.  In essence the R2P principle says that states have a primary responsibility to protect individuals within their borders from genocide, war crimes, ethnic cleansing and crimes against humanity, and, where a state fails in that responsibility, the international community has a secondary responsibility to protect.

The principle was first propounded by the International Commission on Intervention and State Sovereignty (‘ICISS’), chaired by my predecessor Gareth Evans, in its 2001 report, The Responsibility to Protect.  The ICISS report responded to the failure on the part of the international community to prevent or react to mass atrocity crimes, such as the genocides in Rwanda and Srebrenica and other mass harms that occurred in spite of the Genocide Convention of 1948.  The report tackled the perceived conflict between humanitarian intervention and sovereignty by reconceptualising sovereignty, so that the responsibility to protect individuals is prioritised over unconditional territorial control.  The report also reframed the debate by shifting from a focus on the rights of states (to intervene) to the responsibility of states (to protect), and from the perspective of states providing humanitarian assistance, to the perspective of individuals demanding protection.

The R2P framework proposed by the ICISS report has 3 core elements: the responsibility to prevent atrocity crimes; the responsibility to react to events threatening to trigger atrocity crimes with appropriate responses, including the use of force as a last resort; and the responsibility to rebuild after an intervention through assistance with recovery, reconstruction and reconciliation of communities.  R2P has been endorsed by the UN Secretary General, the European Union, the African Union, the UN High-Level Panel on Threats, Challenges and Change, the UN General Assembly and the Security Council.

In recognition of the controversial nature of military interventions and the need to clarify the issue of authority, the ICISS report proposed six criteria for application of R2P.  First, the intervention must be approved by the ‘right authority’, being the UN Security Council or the General Assembly or the geographically appropriate regional organisation.  Second, there must be ‘just cause’ for the intervention, being large scale loss of life which is the product of deliberate state action, state neglect or inaction, or a failed state situation.  Third, the primary purpose must be to avert human suffering.  Fourth, military intervention must be the last resort after all non-military options have been explored.  Fifth, the intervention must use ‘proportional means’, being the minimum necessary to avert the harm.  Sixth, the intervention must have reasonable prospects of averting the mass harm.  Importantly, the report suggested that in Security Council votes where there would otherwise be majority support for intervention, a permanent member of the Council should abstain from using its veto to block the intervention, unless its crucial national interests are at stake.  Neither these criteria, nor the veto proposal, have been endorsed by the General Assembly or Security Council.  Agreed criteria for military intervention will be critical to the successful implementation of R2P.

The emergence of R2P represents an important and positive step forward for three reasons.  First, it debunks the myth that sovereignty entails control without responsibility.  This is an important conceptual break with the past, but as we have seen in the debates surrounding action to halt the violence in Darfur, we still have a very long way to go to convince many states.  Second, it attempts to address the problem of authority by codifying a previously ad hoc and ineffectual system of humanitarian intervention which allowed genocide to occur in Rwanda and produced the unfortunate result in Kosovo of an ‘illegal but legitimate’ intervention.  Third and most importantly, R2P creates a culture of prevention, responsibility and protection, and hopefully will precipitate the construction of an intellectual and practical toolbox of preventive actions and responses to mass harms.

Whilst there has been much support for R2P from Western states, NGOs and international lawyers, there remain some key sceptics.  Many states in the Global South are suspicious of the motives of potential interveners and wary of neo-imperialist or neo-colonialist use of the principle.  In the Security Council, Russia and China have opposed R2P on the basis that it invites unjustified violations of state sovereignty.  Russia was fiercely resistant to the General Assembly statement endorsing R2P and continues to be less than enthusiastic about it in Security Council debates.  Similarly, China has blocked several attempts by the Security Council to refer to or use R2P.  A UN report on the prospects and challenges for promoting R2P in South East Asia, found very cautious interest in the principle and real concerns about intervention attributable to the colonial experiences and continuing Western ‘meddling’ in the domestic affairs of South East Asian states.  The report also highlights the importance of ASEAN as the best placed body to address humanitarian crises in the region.

There is still much work to be done in ensuring international support for R2P.  It is probably not yet a ‘norm’ of customary international law.  The real test will be in the implementation and the lack of substantive action by the international community to halt violence against civilians in Darfur, despite much reference to R2P in Security Council debates and resolutions, is not a good omen.

There remain considerable challenges to achieving implementation.  Doubters must be persuaded of the value of R2P, including by alleviating concerns about Western imperialism.  Proponents of R2P should encourage discussion from all perspectives and listen to concerns and cultural or regional nuances.  The integrity of the R2P concept must be guarded; for example, by emphasising that R2P is about much more than just military intervention and that preventive action involves building state capacity, reinforcing the rule of law and utilizing diplomatic and political avenues.  The limits of non-consensual military action must be specifically identified.  There is also a need to build capacity within international institutions, governments and regional organizations to undertake preventive action and to react to mass harms with non-military and military responses.  Two toolboxes are needed: one containing preventive measures such as early warning systems and peace-building mechanisms; and one containing reaction tools including political, diplomatic, legal, economic and military measures.  Importantly, proponents must enlist strategies to deal with the problem of political will, through reinforcing the R2P norm and a culture of responsibility, prevention and protection.

Australia can play an influential role in working to reinforce the R2P norm, and ensuring its effective implementation.  As part of the Rudd Government’s commitment to ‘effective international citizenship’, human rights, and regional peace and stability, Australia could use its role in the South East Asian region to promote R2P and persuade detractors of its value.

Australia could also work towards the development of an R2P treaty and be involved in the further work necessary to develop the concept and the ‘toolboxes’ referred to above.

If I were Attorney-General, I would commit Australia to these tasks and provide appropriate resources to enable their achievement, because I believe that R2P has significant potential to prevent mass atrocities like those that occurred in the 20th century and to give substance to the vow ‘never again’.

Lucy McKernan is a Senior Associate with Allens Arthur Robinson and a founding member of the Human Rights Law Resource Centre Advisory Committee. 

Business and Human Rights

Serena Lillywhite If I were federal Attorney-General I would ensure corporate responsibility, and in particular business and human rights, was firmly on the agenda of both the Australian government and Australian multinational enterprises.

Australia is being re-positioned as an effective global citizen through middle power diplomacy and renewed engagement to ensure regional security and economic and social prosperity.  To achieve this I would exert influence over non-state actors, such as the private sector, to ensure human rights principles are upheld when engaged in global trade, sourcing and investment.  This is particularly important when operating in developing and emerging economies, and conflict zones with potentially weak regulatory environments and vulnerable workers and communities.

The current corporate responsibility regulatory landscape is complex —international and national law, treaties and conventions, and a plethora of voluntary mechanisms and self regulation.  Voluntary mechanisms alone, such as the OECD Guidelines for Multinational Enterprises, do not guarantee enterprises will uphold fair and decent employment practices and respect for human rights.

As AG I would collaborate with other government departments, NGOs, human rights experts and business to develop and monitor regulatory frameworks that ensure responsible business conduct.

I would establish a National Corporate Responsibility Commission that reports to parliament.  Representatives would be drawn from government, business and civil society.  The terms of reference would be developed in response to extensive multi-stakeholder consultation.  The mandate and report by Professor John Ruggie, Special Representative of the Secretary-General for Business and Human Rights, would inform the work of both the Commission, and the government’s response to business and human rights.

As AG, I would swiftly introduce mandatory corporate responsibility reporting for Australian transnational enterprises against sustainable business targets.  Companies would be required to report annually under a ‘comply or explain’ system on the human rights, ethical, social and environmental impact of their operations.  This would include their operations in developing and emerging economies.  The adopted reporting framework would be based on the Global Reporting Initiative.  Specifically, companies would be required to:

  • disclose their top five sustainability risks;
  • disclose all human rights issues;
  • identify strategies to mitigate the negative impact of their operations;
  • identify impacts on women, children and minority groups;
  • map and disclose their supply chains, sub-contactors, subsidiaries and licensing agents;
  • outline independent auditing mechanisms; and
  • demonstrate meaningful stakeholder dialogue.

These reports would be made public through the ASX and ASIC.  Corporate failure to meet international best practice targets would result in taxation penalties, fines and remedies for those adversely affected.  This income would be redirected to the Australian aid budget to meet the Millennium Development Goals.

The Australian government is a signatory to the OECD Guidelines for Multinational Enterprises.  I would ensure we meet our responsibilities to promote the Guidelines to multinational enterprises and effectively respond to cases raised under the complaint mechanism.  This would be achieved by a restructure of the National Contact Point (NCP).  I would actively liaise with Treasury to ensure the NCP becomes a multi-partite structure, in line with recommendations by OECD Watch and their Model National Contact Point.  I would establish a Corporate Responsibility Ombudsman.  One function would be to act as a mechanism of appeal for cases rejected by the NCP.

I would review the regulatory framework and contractual arrangements of public private partnerships (PPPs) to ensure human rights standards and laws are upheld.  In particular, I would monitor PPPs involved in the day-to-day management and operation of prisons and detention centres to ensure, for example, the human rights of prisoners with a disability and asylum seekers are respected, and practices such as mandatory and arbitrary detention cease.  I would follow up on the OECD Guidelines case against GSL (in their management of Australia’s detention centres) to ensure commitments made have been implemented.

I would actively participate in, and resource, the development of business and human rights training.  This would include training for CEOs, peak industry bodies and government departments.  The program would include regional human rights capacity building for business, civil society and public officials.

I would work closely with the Ministers for Immigration, and Foreign Affairs and Trade to ensure the proposed seasonal migrant labour scheme with Pacific island countries is developed within a rights-based framework.  This would include fair and decent working conditions and respect for human rights by the private sector throughout the supply chain.

I would ensure Australia swiftly ratified the international instruments that protect the rights of migrant workers, namely:

  • ·         UN International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families;
  • ·         ILO Migration for Employment Convention 1949 (Revised) (No 97); and
  • ·         ILO Migrant Workers (Supplementary Provisions) Convention 1975 (No 143). 

I would review all trade agreements to ensure the principles of responsible business conduct and protection of human rights are included.

I would review government procurement policy and introduce procurement legislation similar to that of the UK.  Initially I would focus on the procurement of uniforms for government employees, insisting they be manufactured under either NoSweat Shop accredited Australian manufacturers, or sourced through international suppliers with an ethical sourcing strategy and independent monitoring.

In recognition of those enterprises that had incorporated human rights thinking into their business operations, I would introduce an annual Australian Business and Human Rights Award.

Serena Lillywhite is Manager, Sustainable Business at the Brotherhood of St Laurence, and regularly advises the OECD on corporate responsibility.  She was involved in the OECD Guidelines case against GSL for failing to uphold human rights principles in the management and operation of Australia’s immigration detention centres.

Promoting and Protecting Indigenous Human Rights

Larissa Behrendt If I were the federal Attorney-General, I would immediately increase funding to Aboriginal Legal Services.  A 2004 Senate report and a 2003 report of the Office of Evaluation and Audit both found that the then annual nationwide shortfall for funding of Aboriginal legal aid was $25 million.  And that was over four years ago; there have been no increases in real terms since.  Over the period that Howard was in power, funding to Aboriginal Legal Services was cut by 40 per cent in real terms, making the system almost unworkable.

Also high on my list of priorities would be a review of the Northern Territory intervention legislation.  In particular, I would move swiftly to stop the suspension of the Racial Discrimination Act and the blanket quarantining of welfare provisions.  I would hand to my cabinet colleagues all of the growing evidence that is emerging that the quarantining of welfare is not working, and certainly not improving school attendance.  I would also hand them a list of programs that have been shown to improve school attendance, including breakfast and lunch programs and Aboriginal teachers’ aides.  These programs would be budgetary priorities.  I would move to immediately reinstate the permit system and undertake a review of the Northern Territory Land Rights Act, the outcomes of which would inform me as to the best ways to reinstate protections to traditional owners and return control of mining royalties to Aboriginal people, not the Minister.

It would be time to undertake a proper review of the Native Title Act and the National Native Title Tribunal.  I would commission a proper evaluation of the workability of the Act and seek recommendations to improve its ability to provide outcomes and to shift the balance back after the 1998 amendments.

I would dust off copies of the Bringing them Home Report and the Royal Commission into Aboriginal Deaths in Custody, get advice on the best way to implement the key recommendations of both reports and develop a strategy for implementation.  I would convene a special meeting of the all State Attorney-Generals and their Department heads to find ways to better co-ordinate efforts to implement the strategy with timelines and benchmarks.

The UN Declaration on the Rights of Indigenous People would be signed and I would seek advice from the Human Rights and Equal Opportunity Commission on the best ways to entrench the rights recognised by the declaration into Australian law.

In addition, I would lobby my parliamentary colleagues to take money from home ownership schemes and other failed policies and direct that towards Indigenous infrastructure, health, housing and education.  I would also remind them that the largest Aboriginal populations are in New South Wales and Queensland and so focusing primarily on the Northern Territory means a majority of Aboriginal and Torres Strait Islanders are being ignored.  I would stress that they need to fix the $460 million underspending on basic Indigenous health needs.

I would fully support the inquiry into the Haneef case.  I would take the opportunity to review the anti-terrorism legislation to ensure that it strikes a better balance between fundamental rights like due process before the law with the aims of improving national security.  I would also commission reviews of the powers of the Australian Federal Policy and the Australian Security Intelligence Organisation.

I would also be an active advocate for reinstating the separation of powers between the judiciary, executive and the legislature.  As Attorney General, I would not use my position to denigrate judges in the media.

I would appoint Hilary Charlesworth and George Williams as co-chairs of a national committee to inquire into whether there should be a national Charter of Rights, what form it should take and what it should include.  I would implement their recommendations.

I would move to establish a Constitutional Convention Committee that would hold a convention every ten years to discuss constitutional change, starting in 2009.  I would ask that the first convention consider the following matters: a Preamble to the Constitution that recognises Aboriginal and Torres Strait Islander people, the inclusion of a non-discrimination or equality clause in the Constitution, and fixed terms for politicians.

The issue of whether the Northern Territory and Australian Capital Territory should become states would be revisited and I would seek to develop processes through which this could be explored in both jurisdictions.

I would legislate to make same-sex marriage legal.

Finally, I would be mindful that I would have the opportunity to make two appointments to the High Court.  I would undertake extensive consultations to identify the most capable candidates but I would certainly have Chief Justice Jim Spigelman of the NSW Supreme Court and Professor Cheryl Saunders of Melbourne Law School on my list of potential candidates.

Larissa Behrendt is Professor of Law and Director of Research at the Jumbunna Indigenous House of Learning, University of Technology, Sydney.  She is a member of the NSW Bar and Chair of National Indigenous Television Ltd.

The Rights of Children and Young People

As the recent report from the National Youth Commission showed, children and young people in Australia are over-represented in the homelessness figures.  Young people also face a disproportionate level of unemployment and disadvantage.  A large proportion of young people are prohibited from voting, yet they are often simultaneously criticized as apathetic and disengaged.  Across the country, their everyday interactions are often subject to heavy-handed laws: move-on notices and curfews when they try to use public spaces; punitive probation requirements when they try to get their drivers licenses; increasingly serious sanctions for not attending school; and in some cases, even withholding of benefits from their families.  The list of punitive legal measures that are either directed at, or in practice disproportionately affect, young people is growing. If I were Attorney-General, I would recognize that the way in which we treat children and young people today will shape the Australia of the future, without being all Whitney Houston.  There is an undeniable correlation between recognition of a person’s rights and their inclusion and participation.  So how do we recognize children and young people’s rights?  How do we protect those rights and nurture in young Australians a sense of social justice?  I am glad you asked….

I would start from a rights-based framework, one that fully recognizes the human rights of children and young people.  I would keep in mind that civil and political rights, such as freedom of association and assembly and the right to participation, are rights that children, as humans, hold.  They also hold economic, social and cultural rights, such as the right to adequate housing and an adequate standard of living.  Children also have some further rights that recognize their vulnerability, but these rights to protection should not be used to undermine more fundamental human rights.

I would reach for the Seen and Heard report, blow the dust off it and take another look.  This report, commissioned by the Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission in 1997, is a comprehensive analysis of the legal system and the ways in which it serves (or fails to serve) children and young people.  A very clear message emerged that young people across Australia felt they were not listened to and that neither judicial officers nor other adult participants in legal processes took account of, or cared about, their viewsDrawing on the recommendations that were made by the report, I would start by convening a National Summit on Children and Young People and from the summit I would ensure that a small taskforce was convened.

I would ensure that there is supported and effective participation of children and young people within the Summit.  This would entail a fully resourced lead-up process which engaged children and young people of various ages and backgrounds and fed into the formation of the taskforce.

I would then step back and broaden the focus by commissioning a white paper on the ways in which children and young people’s rights are protected in Australia.  This could form the basis of the Australian report to the United Nations Committee on the Rights of the Child, which is already overdue, and would draw on the dedicated and amazing work being done by NGOs across the country around monitoring the implementation of the rights of children and young people.

I would place youth homelessness at the top of the agenda for the next COAG meeting.  The last census showed that those under 24 years represented 46% of all homeless people in Australia, while the recent inquiry by the National Youth Commission has found that youth homelessness has doubled in the last two decades.  As Attorney General, I would make sure that the $1 billion this report calls for to tackle the problem is made available and I would follow-up by making it an ongoing agenda item for COAG and a priority issue for the newly established taskforce.

I would fully fund a youth affairs peak body.  Australia has not had one since 1998 and, frankly, ‘roundtables’ have not filled the gap.  What the peak body would look like would only become clear after a wide consultation of young people lead by the taskforce.  I would also appoint a National Children and Young Peoples’ Commissioner, independent of both the Government and Human Rights and Equal Opportunity Commission, and one that reports directly to parliament.  The Commissioner would work closely with the taskforce to ensure that children’s and young people’s voices are being heard by Government.

Finally, I would introduce a bill to lower the voting age, making it possible (though not compulsory) for young people to enrol to vote once they reach the age of 15 years. I would hope that the mere possibility that they would enrol would produce a new political sensitivity to the issues faced by young people across Australia.

Anna Copeland is currently at the Human Rights Law Resource Centre until July when she returns to the SCALES community legal centre and the Clinical Legal Education Program at Murdoch University in Western Australia.

Human Rights in the Northern Territory

If I were appointed Attorney General of the Northern Territory, my first day on the job would go something like this … In the morning, I would set about establishing a Northern Territory law reform commission.  The law reform commission would enquire into issues and matters that were referred by the Attorney General, and would make recommendations for legislative reform.

I would refer two initial matters to the law reform commission for enquiry.

The first would be a review of the legislative requirements relating to the conduct of police investigations in the NT.  In particular, the review would examine whether the existing legislative requirements relating to police investigations afford persons being questioned the right to legal representation and adequately protect the right to silence.

In the NT, there is currently no legislative requirement for police to ask a person who is in custody, and the subject of a police investigation, whether they would like to speak to a lawyer before they are questioned.  In most other states in Australia, such a requirement does exist.

The right of a person charged with an offence to legal representation is contained in art 14 of the International Covenant on Civil and Political Rights.  The Human Rights Committee has held that art 10 of the ICCPR, which relates to the rights of persons in detention, encompasses a more general right to legal representation for persons in detention.

This right to legal representation is largely diluted if there is no requirement for police to clearly inform an accused person about the existence of the right and, where the accused person chooses to exercise that right, facilitate access to legal representation by assisting the person to contact legal aid.

The same enquiry would also look at the adequacy of the existing safeguards on the right to silence.  In particular, the law reform commission would report on the effectiveness and cultural appropriateness of the current police caution.  Judicial officers and practitioners in the NT have acknowledged the problems associated with the police caution.  Aboriginal interpreters have noted that it can be difficult to translate the caution in its current form.  This is because the caution is inherently counterintuitive ‑ a police officer commences an interview by telling the interviewee that they do not have to answer any questions; the same police officer then proceeds to ask the interviewee a series of questions.  There are concerns about whether this is a clear and culturally appropriate way of informing a person of their right to silence.  The law reform commission would be tasked with exploring more effective ways of informing people, particularly Indigenous people, of their right to silence.

The second enquiry that I would refer to the law reform commission would involve a review of current sentencing practices in the NT, an examination of the adequacy of existing sentencing options and consideration of alternative sentencing programs.  In particular, the enquiry would include a review of the frequency with which court fines are imposed on offenders in the NT, and the effectiveness of court fines as a non-custodial sentence for disadvantaged persons.

With the wheels in motion on the establishment of the new law reform commission, I would meet with the Minister for Health and Community Services over a late lunch to discuss the urgent need for funding to be directed to drug and alcohol rehabilitation services.  In particular, we would discuss the need to match live-in rehabilitation programs with services to assist people transitioning out of those live-in programs.  I would raise the need for places to be available in rehabilitation services for offenders referred through the court process.

I would hurry to a meeting with the Minister for Housing, and a discussion about the interaction between our respective portfolios.  I would seek clarification on the steps that are being taken to address housing standards in Aboriginal communities, as well as the chronic shortage of transitional and emergency accommodation in the NT.  We would also discuss the low numbers of applications to the Commissioner of Tenancies by Aboriginal people in remote communities seeking to enforce their rights under the Residential Tenancies Act.  I would propose to provide increased funding to the Commissioner of Tenancies to outreach to communities to undertake community education about the rights and obligations of tenants and landlords.

I would return to my office tired, but quietly pleased with the progress made in my first day as Attorney General.  There I would find, printed out and waiting on my chair, a funding application from the Human Rights Law Resource Centre.  The application would request funding to provide human rights training to lawyers, government employees and service providers in the Northern Territory.  I would read the application with approval and place it on the top of my list of action items for day 2.

As I cycled home, I would think to myself: ‘A human rights law resource centre.  What an excellent idea.  Wouldn't it be great if we had one of those in the NT …’

Beth Midgley is a lawyer with Blake Dawson on secondment to the North Australian Aboriginal Justice Agency in Katherine, Northern Territory

Human Rights and People Trafficking

If I were Attorney-General, I would bring a human rights-based approach to the issue of trafficking in people, putting human rights at the centre of Australia’s policy and practice on this issue. It is estimated that between 600,000 and 800,000 people are trafficked in Asia each year, including 250,000 from South East Asia.  This trade in human misery is overwhelmingly driven by poverty and is underpinned by lack of respect for the rights of those trafficked.  The response to human trafficking should meet this head on, by placing human rights firmly at the centre of Australia’s policy and practice response, consistent with the UN Principles and Guidelines on Human Rights and Human Trafficking. 

Australia has made significant progress in combating human trafficking in recent years.  There is an existing legislative and policy framework to build upon and weave a rights-based approach through.  This include legislation, such as amendments to the Criminal Code, the ratification in 2005 of the UN Protocol to Prevent and Suppress Trafficking in Persons, Especially Women and Children and a number of policy documents, such as the Action Plan to Eradicate Trafficking in Persons released in 2004.  Australia has also been an active participation in regional trafficking projects such as the Asia Regional Cooperation to Prevent People Trafficking Project (ARCPPT) and AusAID’s Asia Regional Trafficking in People Project (ARTIP).

Despite this, Australia’s response to human trafficking fails to address the abuse of human rights which is at its core.  Instead the focus is primarily on strong law enforcement.  The solution to trafficking (at least in popular political debate) is often presented as simply the apprehension and prosecution of individual perpetrators.  The successful prosecution of traffickers is an important element of the response to trafficking.  But it is the trafficked person, not the perpetrator, who should be at the centre of strategies to eliminate trafficking.   A rights-based approach is one way to achieve this.

The Attorney-General is uniquely placed to coordinate the various portfolios involved in the response to human trafficking to encourage a consistent, rights based approach and to review legislation using a rights frame.  In particular, I would move quickly to address the situation under the current visa system that makes the protection and support of trafficked persons conditional on them being both able and willing to make a ‘significant contribution’ to a criminal investigation or prosecution.  Australia’s visa regime should align with the UN High Commissioner for Refugee’s statement that victim protection must be considered separately from witness protection, and that trafficked persons should be entitled to adequate protection under any circumstances, irrespective of any decision to instigate judicial proceedings.

In addition, Australia’s current approach to human trafficking requires a shift in focus so that it begins to effectively protect the rights of all trafficked persons, not just specific groups.  The Criminal Code Amendment (Trafficking in Persons Offences) Act 2005 refers to the trafficking of ‘persons’, not just women and children.  But in practice the focus is on women and girls and men are overlooked.  Similarly, while the 2005 Act acknowledges labour trafficking, the focus of the Australian response has been on trafficking for sex.

As Attorney-General, I would champion a response to human trafficking which takes into account the complex factors, conditions and rights violations that lead to human trafficking in the first place.  I would promote an approach which acknowledges the realities of trafficked persons, who have generally had many other rights violated before, during, and after being trafficked.  A truly effective approach to eliminating trafficking must encompass and respond to these realities. By taking a human rights approach, my Department and the Government would be able to offer responses to trafficking which address the poverty-related rights abuses which underpin and work to eradicate the conditions which allow trafficking to flourish.

Trafficking should be explicitly defined as a human rights violation, rather than one manifestation of other broader violations.  Ultimately, trafficking should be ‘mainstreamed’ as a full status human rights violation, rather than just an issue affecting women and children.  Dealing with human trafficking in this way could also demonstrate the way in which a human rights-based approach can be taken to many of the key issues facing Australia today, including immigration, foreign affairs and Indigenous affairs.  As Attorney-General, my ultimate aim would be to see Australia bring a rights-based framework to all law and policy making.

Fiona McLeay is General Counsel of World Vision Australia.  Human trafficking is a key focus of World Vision Australia's current campaigning activity.

Recalibrating Australia’s Counter-Terrorism Law and Policy

Changes in government carry with them a certain energy.  Clearly, for supporters of the vanquished, these are moments of melancholy.  But for the broader electorate, the mood is an excited brand of hope.  Suddenly, the next three years seem fresh, free and open.  The familiar patterns of the past no longer apply.  Anything is possible, and for a moment everyone dreams of a nation approximating their own designs. And for the new government, it is a time of rare opportunity.  Politics is a choking endeavour.  Principles and ideals are regularly compromised for powerful political imperatives.  There are factions to placate, key demographics to appease, media critics to rebuff and ultimately, elections to win, all of which has the potential to lead to bad policy.  If these compromising factors are ever suspended, or at least mitigated, it is in a new government's brief honeymoon.

My hypothetical ascension to the Attorney-General's portfolio occurs in that environment.  The nation's mood for change has been expressed, and in the most politically charged area of my duties – terrorism – the electorate seems to have discovered a hitherto absent cynicism.  A recent survey by security company Unisys has terrorism dropping down the list of Australians' security concerns.  It seems identity theft and credit card fraud bother us more.  Undoubtedly the Haneef debacle informs this growing cynicism.  More than at any other time since 11 September 2001, the Australian public is prepared to accept that it is possible for counter-terrorism to be too indiscriminate, and too aggressive.  The fact that there have been no successful terrorist attacks on Western soil since 2005 has no doubt had an impact, too.

Now would be the time, then, for me as federal Attorney-General to re-calibrate Australia's counter-terrorism law and policy.  It is difficult to believe the Haneef case was merely an isolated accident.  No less troubling is the case of Izhar Ul-Haque, who, according to the New South Wales Supreme Court, was kidnapped and falsely imprisoned by over-zealous ASIO officers.  The facts of that case, and the treatment of Haneef by both police and the Howard government, point to a more general orientation in Australian counter-terrorism, contemptuous of suspects' presumed innocence, muscularly asserting the power of the state, and skewed towards aggression.  This has been something of a cultural phenomenon in recent years that pervades law enforcement and intelligence agencies, but also the parliament.

My aim would be to set a different cultural tone.  A starting point might be an emphasis on terrorism as more than a national security problem, but as a community problem as well.  Community-based approaches to policing and intelligence would be encouraged, where these agencies develop strong community relations and eventually come to be seen as serving the public rather than surveilling and policing it.  It is an approach that has long been successful in Victoria, Britain and Queensland, but it is sorely missing at the federal level.  Clearly, government cannot control these agencies, but it can set an example.

Legislation might be a good place to start.  As Andrew Lynch has written in previous editions of this column, the Howard government has certainly had the benefit of numerous recommendations and evaluations of its anti-terrorism legislative regime.  Much of it has been critical, often on human rights grounds, and almost all of it has been ignored.  Naturally, I would echo Lynch's call to pay greater heed to these recommendations.  But I would add an extra dimension to these inquiries.  I would seek a comprehensive review of our anti-terrorism laws specifically analysing their social and psychological impact on minority groups, with a particular focus – in human rights terms – on the extent to which they are discriminatory either in letter or in practice.

I say this not only as a human rights concern, but as a key plank in assessing the efficacy of these laws.  A substantial body of academic literature concludes that when the state resorts to strong demonstrations of power in response to a terror threat, and especially where they do so in a way perceived to be discriminatory, it has the long-term effect of exacerbating the threat it is aiming to counter.  This was true of the British experience with the IRA.  It is true of Spain's experience with Basque separatists.  It is true of the Sri Lankan struggle with the Tamils.  Discriminatory, muscular counter-terrorism only increases support for the terrorists' cause and causes their ranks to swell.  A Monash University study suggests a similar phenomenon might be at work in Australia.  We urgently need a more comprehensive examination of this.

It is difficult for governments to resist these aggressive counter-terrorism responses.  It is even harder to sell a message to an electorate that human rights and counter-terrorism are not in tension.  But our best knowledge suggests this is true, and if ever there was a time where the politics allow that message to be sold, it is now.  That is an opportunity I would hope to use.

Waleed Aly is a Lecturer in the Global Terrorism Research Centre at Monash University, a lawyer and a former secondee with the Human Rights Law Resource Centre

An Attorney-General for Human Rights

For more than a decade I disagreed with a great deal of what the Commonwealth Attorney-General was doing and, not surprisingly, I indulged from time to time in a daydream about how I would do things differently (or, in some cases, just do something).  Of course it was only ever a daydream – not only was there no prospect of my ever being the Attorney (nor is there now), but there was little prospect of there being a change in the actual Attorney or, at least, a change in the views coming out of the portfolio. Suddenly, this ‘if I were Attorney-General?’ question is not just a wistful game.  There really is a new Attorney, and all those ideas of how things might be different could now become someone’s plan.  To speculate right now, on what I would do if I was Attorney-General, seems tantamount to saying to Robert McClelland: ‘Here’s a few ideas for what you could do’.

Before saying what I’d do, I’ll say how I’d do it: through a human rights framework.  The starting position for all policy would be its compliance with – and furthering of – human rights standards.  To design an anti-terrorism policy within a human rights framework, or an asylum seeker policy, or a legal services policy . . . each would take on a significantly different character when the guiding principle, and not the afterthought or begrudging concession, is human rights compliance.  And how much more authority will Australia carry internationally when it practices what it preaches?

Perhaps that is all that needs be said, because so much would follow.  But here are some specifics.

When reviewed from a human rights perspective, the anti-terrorism laws must be amended.  The Dr Haneef debacle demonstrated how far the balance between state powers and people’s rights to liberty and a fair trial has slipped in favour of the state.  If the ultimate accountability of the state is through the ballot box, then the recent election result demands that the state winds back its self-serving powers.  Relatedly, I would make explicit the government’s commitment to respect for legal process, to non-political participation in the process, and to the independence of legal and statutory officers from the political influence of the state.  I would resile completely from executive action that persecutes individuals outside the procedural protection of the legal system.

The recent election result is also a message to the state that the balance has moved too far against asylum seekers.  Detention must be abandoned – we release alleged criminals on bail, but not exhausted, frightened, impoverished people seeking our help.  I would move to establish an intelligent and compassionate system of reporting and monitoring during assessment of an asylum seeker’s claim.

I would also move to ratify the Migrant Worker’s Convention and the Disability Convention, together with each of the optional protocols to CEDAW and the Disability Convention.  But Australia’s history of ratification has not been matched by its commitment to give effect to its obligations in law; I would audit Australia’s domestic compliance with its international obligations – beyond the glib reassurances given to the UN in our infrequent reports under the treaties – and legislate to give comprehensive effect to those obligations.

No audit is necessary to tell us that we have not given domestic effect to either the ICCPR or ICESCR.  It is not enough to say that many of the rights can be found scattered around in state and federal statutes, common law and government policy.  The simple fact is that we have not clearly and comprehensively extended to Australians rights that we have agreed are universal, and we have not fulfilled our commitment under those human rights treaties.  At the very least I would commit government to be bound by human rights standards in legislation and policy, and I would ensure that government compliance would be justiciable; how otherwise can our commitment to human rights be credible?

Australia’s national human rights institution, the Human Rights and Equal Opportunity Commission, must be fully staffed and funded to carry out its statutory mandate.  I would rely on it for authoritative advice in developing human rights policy, education and laws.  In a related initiative I would reinstate the human rights dialogues that previously provided a unique forum for NGOs and government to exchange news and views, with a commitment to making them accessible (the government might even deign to go to them, rather than summon the NGOs to Canberra), and to the Chatham House Rule.

The one area where Australia has for many years given effect to human rights, in law if not in practice, is anti-discrimination.  But the laws – State, Territory and Federal – are variously dated, idiosyncratic, inconsistent, insufficient and ineffective.  I would consult with the Australian Law Reform Commission and regional law reform bodies to establish a national review of anti-discrimination laws, to harmonise and modernise them.

In the area of justice – of people’s right to a fair and accessible legal system – I would articulate a national policy for access to legal services, and abandon the small-minded distinction between federal-state matters in legal aid funding agreements.  I would clearly delineate and respect the unique and independent role of community legal centres, and stop the relentless push to re-cast them as cheap outreach services for legal aid.  I would leave the profession’s pro bono contribution to the profession to manage as it sees fit.

There is, of course, so much more that could be done or proposed by the Attorney-General to achieve human rights for people in Australia and the region: fully fund comprehensive Aboriginal and Torres Strait Islander legal services; enable intervenors and amicus in court proceedings; reform class action procedures; open up Freedom of Information laws; re-conceive the process of native title determination; publish guidelines for judicial appointments; fund AustLII; revisit the arcane confines of ‘Priestley 11’ in legal education; enhance law reform references and consultations, redefine Australia’s aid strategies for Asia and the Pacific, and so on.  Ah, to dream.  Or not: over to you, the real new Attorney-General.

Simon Rice OAM teaches law at Macquarie University and is the immediate past-President of Australian Lawyers for Human Rights.