One Year On: Time for Reflection and Time for Leadership

I’ve been in office a year now and feeling pretty pleased with myself as we head into the summer break.  So far, my government has not viewed human rights as a suspicious foreign influence which threatens Australian sovereignty or our freedom to make policy choices.  Instead, we have re-engaged with the multilateral system for protecting human rights, and taken steps to strengthen their domestic protection. We signed the Disabilities Convention and got an eminent, blind Australian, Professor Ron McCallum of Sydney Law School, elected to its monitoring committee.  We’ve accepted the importance of the Optional Protocols to the Women’s Convention and the Convention against Torture, and the Declaration on the Rights of Indigenous Peoples, though I must say we’ve been a little slow on some of these.  We’ve issued a standing invitation to the Special Procedures of the UN Human Rights Council to visit Australia, since constructive external criticism of the way we do business can only improve our system.

We’ve made considerable improvements in domestic policy: blunting the worst excesses of immigration law by improving detention, eliminating temporary protection, and abolishing the Pacific Solution; safeguarding equality rights and non-discrimination through same-sex entitlements; apologising to the Stolen Generations; beginning to act seriously on homelessness; and inching towards paid maternity leave.

Now to the main game: we’ve announced a six month consultation on how to better protect human rights.  I regret to admit that we are pussy-footing around on this. Protecting human rights is not rocket science.  In half-decent democracies, bills of rights have been around for centuries.  We already know the issues.  We know our treaty obligations.  Six months of chit-chat will not tell us anything new.  Sometimes I feel like we’re living in a time warp, where we’re obsessed by reprising stale debates which everybody else moved beyond long ago.

Personally I dislike the gruel-like version of a bill of rights which seems to be all the rage amongst NGOs – that is, the non-enforceable ‘dialogue’ model, without judicial remedies, and limited to civil and political rights.  Human rights are more important than that.  Rights should be treated as rights, not as wishy-washy suggestions which governments should think about but can override if they don’t really like.  The dialogue model is better than nothing, but it doesn’t excite me.  Unfortunately Kevin is not so keen to tie his hands; I think he’s a bit worried that his intervention in the Northern Territory, might be racially discriminatory….

From a bill of rights flows great potential for structural improvements to a range of rights in Australia.  For me, some specific matters need urgent attention.  We must speak out consistently against the death penalty around the world, even to save the lives of terrorists, and even if it means that I have to contradict my Prime Minister, who unfortunately can be a bit of a fair-weather friend of human rights.

We need to criminalise torture as a new federal offence, to properly stigmatize it as a universal and specific harm.  We should legislate to comprehensively preclude the admission in court of evidence obtained under torture.  We should legislate to provide protection against returning a person to a country where they face torture, rather than relying on a limp ministerial discretion (no disrespect intended to my friend Chris Evans).

Rights remain threatened in the immigration context: we retain an unnecessary system of arbitrary mandatory detention, when community release would work well.  We preclude judicial review of the grounds of detention.  We put some people on the notorious Bridging Visa E, which denies basic welfare rights, leaving people homeless or destitute and amounting to inhuman or degrading treatment.  The health test for disabled migrants is incompatible with Australia’s non-discrimination obligations under the Disabilities Convention.  We should be doing more to respond to the threat of the climate change-induced displacement of our Pacific neighbours.

In other areas, Kevin’s apology to the Stolen Generations was terrific – but of course an apology is only one aspect of remedying those rights abuses, and providing compensation would signal that we are genuinely sorry.  Sadly Kevin is also not too fond of the unions, so it is unlikely that I can persuade him to remove Australia’s restrictions on the right to strike and freedom of association in the workplace, which have often been criticised by the International Labour Organisation.

On access to justice, I might have more luck.  Already we’ve increased legal aid funding, but I am aware that 70 out of 200 community legal centres nation-wide still do not receive recurrent annual federal funding.  It is one thing to provide legal rights, but it requires more to adequately fund the realization of those rights through legal aid, particularly when my colleagues in the legal profession continue to charge such outrageous fees.

Finally, we need to review the counter-terrorism laws adopted in recent years.  Some of them are unnecessary, confusing, disproportionate, and illiberal.  We have sleep-walked into a state of exceptionalism and perpetual emergency, in which the prevention of speculative future attacks has justified the suppression of centuries-old freedoms.  Now that the Haneef inquiry is out of the way, we have no excuse not to review all of the laws in earnest.

I wish you all a brilliant summer.  Were I a Christian, I’d ask Santa to toss down the chimney a stunningly successful referendum which brings us all judicially enforceable civil, political, social, economic and cultural rights, with plenty of new causes of action and a big fat right to compensation.  I’d be quite happy for any judge – even Justice Kirby – to order me and my fellow politicians not to torture Australians, or to respect their liberty, their freedom of movement, or their right to go to school or live in a house with a roof.  I don’t find that undemocratic, it hardly disturbs our liberal constitution, and I quite like the idea that my power as a politician would not be unlimited.

Dr Ben Saul is Director of the Sydney Centre for International and Global Law and Coordinator of the Master of International Law Program at Sydney Law School