An ‘Intervention’ to Enrich the Spirit of the Nation

Distinguished guests, I am very pleased to stand before you as the Attorney General. I am absolutely delighted most people are not offended by my lack of legal qualifications, because when they find out that I am also black, the goona* will head for the fan.

I realise my task ahead is really a big challenge and I am sure that more than one term in office is needed for me to embed my reforms.  Wish me luck but, also, please get on board.

First, I have the Australian Constitution in my sights.

I am determined to have a successful referendum to define and defend the distinct and societal characteristics of the Australian population.  By ‘characteristics’ I mean the array of civil liberties and privileges that spring from the distinctiveness, and the collective interests, of all the people, the tradition and the land.  Naturally I want the essence of Aboriginal society to be captured but the road to a good charter need not be a one-sided mission, occupying the first peoples.

Our ‘Human Charter’ can be an exciting and redeeming happening for all sections of the national community of Australia, even as exciting as the 2000 Olympic Games.

I am going to announce 2011 as the Year of Australian Celebration to engage everyone in the search for Australia’s heartbeat.  And the official recording of the year will become the national document of exploration for reconciliation.

It is quite obvious that I intend to beat the odds and achieve one of the best referendum outcomes in Australia’s history.  My bid for a referendum will not be a centralised, insular and elite campaign.  It will be a local, community-designed and assisted groundswell, relying upon maximum engagement and community self-expression.  Most of all, it will be fun and inspiring.  No section of Australian society, no matter how different or how isolated, will be allowed escape from the fuss and limelight.

It is in this environment that a constitutional definition of Australia’s diverse cultural society is achieved and, in the process, protected and valued.

Next, a ‘constructive agreement’ with the Aboriginal people will be struck.  This will be accompanied by a ‘constructive agreement’ with the Torres Strait Islander people.  You might want to call it a treaty, but for now I am going to call it a mutual agreement.  It will be a legal document that empowers and constitutes the collective existence of the first peoples in the Australian legal system, and authorizes them to establish their formal institutions in a compatible way.

Of course this will occupy much of my time as Attorney General, but I also have another priority.  I plan to dramatically reduce the numbers of Aboriginal and Torres Strait Islander men, women, youth and children who are ‘wards of the State’.  I intend to halt the march of new-born Indigenous babies into foster homes and care, youth detention and then prisons, by creating intervention at all levels.

No, this is not more control of Aboriginal lives; just the opposite.

My ‘intervention’ will be to facilitate community-level actions which target the vulnerable, at-risk people, but which also builds the infrastructure for community to cope with new demands, such as care for children and community placement and training for youths and adults.  I expect the biggest opposition will come from the States and Territories seeking to keep their constitutional powers and responsibilities, so my actions must be collaborative and persuasive.

I know this is not a new idea and is idealistic, but it will be a coordinated and sustained effort.

To give it life and determination, I will create a national Ombudsman for Indigenous Freedoms and Dignity, intended to focus upon the remedies to non-familial care and incarceration of Aboriginal and Torres Strait Islander people.  This Ombudsman will have the resources to be well-engaged by communities and governments.

Associated with this targeted goal will be my reforms of the legal system including the institutions.  Indigenous laws and systems will be addressed in the constructive agreement already mentioned, but our traditional legal system, borne out of Latin and European origins must have some adaptations to deal with the imposition upon the first laws and practices of Australia.  The legal system must be able to interact constructively with customary law and produce outcomes of restorative justice.  It must also find justice at the community level, where the poor and powerless have a say in defining and implementing justice.

What are the details?

I am sorry but I will need to commission further study of this strategic objective, engage with experts at all levels of government, and hear from people who feel as victims to an unfair system.

What can one person do, after all?

I will need help from all people in Australia to become ‘the world’s best Attorney General’.

Les Malezer is Executive Director of the Foundation for Aboriginal and Islander Research Action and Chairperson of the Global Indigenous Peoples Caucus to the United Nations

*Goona is Aboriginal slang for excrement

Victorian State election special edition

The Victorian State election will be held on 27 November 2010. In this special edition of ‘If I Were Attorney-General…’, we have asked the Labor Attorney-General, the Hon Rob Hulls MP, together with Liberal-National Shadow Attorney, Robert Clark MP, and the Greens Shadow Attorney-General, Sue Pennicuik MLC, to reflect on what they would do to better protect and promote human rights and social justice if appointed Attorney-General in the next Victorian State Government.   A Labor Attorney-General: The Hon Rob Hulls MP, Deputy Premier and Attorney-General of Victoria

One of the greatest privileges I’ve had during my time as Victoria’s Attorney-General has been the opportunity to help develop and cement a human rights culture in Victorian public life.

Despite initial anxieties from some quarters, four years into its operation, Victoria’s Charter of Rights and Responsibilities has been vindicated.  Human rights and their companion responsibilities are now considered every day – in services delivered, in laws developed, in decisions made by Government.

In other words, the Charter has affected people’s lives in ways both real and important – from young people with acquired brain injuries being able to remain in their chosen accommodation as one example; to an involuntary mental health patient gaining access to medical treatment as another.

Alas, for those fond of conspiracy, the judiciary has not usurped Parliament but left it with the ultimate say.  In the few cases in which the Charter has been invoked before the courts, the relevant right has been one amongst other long established common law rights already available at law.  Meanwhile, every Government policy has been developed against what could be described as a social impact statement – a robust interrogation of every decision, with Government bound to account for itself in Parliament.

With a legislative review pending – conducted by independent reviewers and supported by Government – there may be further ways in which the Charter can improve Victorian lives.  As well as any resulting reform, however, we must also help the Charter’s language resonate with the whole population.  Here, the Eastern Community Legal Centre’s ‘Human Rights are Aussie Rules’ campaign has had great success – spreading the message that, just as fair play applies on the sports field, human rights are about fairness on the playing field of life.  The response from school kids is that it makes perfect sense – a fact that inspires hope for the future.  It also reminds us of our responsibility to shape this future.

Similarly, its simple message reminds me that the Charter’s existence does not mean we should neglect the other ways in which we can support people’s rights.  The legal system, after all, offers us myriad opportunities to do so – whether it be improving court processes; taking legal services to more communities; tackling the causes that lead people to crime; supporting victims or simply increasing funding to Legal Aid.

That is why the Brumby Labor Government has increased legal aid funding each year in office – with annual state funding now at $68 million, compared with $28 million in 1999.  Similarly, the Government has invested $3.5 billion in resources for Victoria’s courts since 1999 – meaning that courts are finalising more cases than ever before.

Meanwhile, we’re taking justice services to more communities – expanding the Dispute Settlement Centre of Victoria and VCAT services across the state and developing a Legal Services Masterplan to help us plan for future investment and respond to local needs.

In the criminal justice system, Labor has recognised the rights of victims – reintroducing and increasing pain and suffering compensation, establishing a statewide support service and Victims Charter, and reforming family violence and sexual assault laws.

Labor also knows that, while serious offenders must be met with serious consequences, if we really want to be tough on crime, we’ve got to be tough on its causes – ensuring that people aren’t drawn further into its cycle and using the law to set lives back on track.  Accordingly, Labor has reduced re-offending with problem-solving programs that will be cemented in the core business of all courts should we be re-elected.

Finally, Labor has recognised the need to address systemic, as well as individual cases of discrimination and I look forward to the results once the Victorian Equal Opportunity and Human Rights Commission commences its new, proactive role working with business to tackle entrenched inequality.  I also look forward to more Indigenous claims to land justice being settled under our new Traditional Owner Settlement Framework.

All the above reforms are about recognising the rights of every Victorian to equality and access to justice.  Despite this, there are those who have failed to support them – who want Victoria’s Charterabolished, who opposed equal opportunity and native title reform, who slashed legal aid and victims’ services when last in office and now call instead for mandatory sentencing – the antithesis of rights protection in my humble view.

While the results of the Charter’s review will determine any change undertaken – results which I do not want to pre-empt – what I can signal is our determination to stand by what the Charter and all our reforms will continue to achieve for Victoria.  This means that there is only one choice this November for those who care about the rights of Victorians and, if returned to office as Victoria’s Attorney-General, I will continue to seize every opportunity to take rights recognition in all its forms to every corner of the state.

The Hon Rob Hulls MP is Deputy Premier and Attorney-General of Victoria

A Liberal-National Attorney-General: Robert Clark MP, Liberal-National Shadow Attorney-General

Under a Liberal-Nationals Coalition, my focus as Attorney-General will be on reforms that will restore standards and deliver practical and timely results.

Over the past decade, Victoria has suffered from an Attorney-General who has denigrated the judiciary and the profession, attacked freedom of association, axed the independent chair of the Equal Opportunity Commission and sought to scrap the independent board of the Victoria Law Foundation.

While Mr Hulls has been pre-occupied with his ideological agenda, Victoria’s legal system has gone backwards in its ability to uphold the rights and freedoms of Victorians.

Poorly drafted legislation, intrusive bureaucracy and bungled IT projects have made it harder rather than easier for our courts to deliver justice.

Victoria has become a state where justice delayed is justice denied.

Our state’s criminal case waiting lists have grown by 36 per cent since 2003.  Victoria now has Australia’s longest waiting lists for Supreme Court appeals, for County Court trials, in the Magistrates Court and in the Children’s Court.  As at 30 June last year, there were 42,508 criminal cases awaiting trial in Victoria’s courts, compared with 26,085 cases in NSW.

The Attorney-General has treated ventures such as the Neighbourhood Justice Centre and the Drugs Court as soviet-era model farms to distract attention from failures, rather than as mainstream institutions to be made available to all.

The Charter of Human Rights and Responsibilities Act has failed to provide proper benchmarking against international human rights such as the International Covenant on Civil and Political Rights.  The government uses Statements of Compatibility as devices to avoid compliance, and the government’s duplicity in relation to the interpretation of the legislation was slammed by the Court of Appeal in the Momcilovic decision.

Important legislation that would make a real difference, such as jury direction reforms based on the VLRC’s recommendations, has stalled while the Attorney-General has spent his time tinkering with jury eligibility rules for legal staff and retired lawyers.

When legislation such as the Civil Procedure Bill has finally reached Parliament after lengthy delays, the government has brushed aside concerns that the legislation will in many cases make it harder to obtain justice, concerns expressed by bodies including the Law Institute and later reinforced by the Federation of Community Legal Centres.

It’s time for a change of approach.  Victoria needs an Attorney-General able to work cooperatively and constructively with all persons of goodwill, and to deal with points of disagreement on their merits rather than through abuse of those holding different views.

Priority needs be given to practical measures such as additional court staffing to help reduce sentence appeal delays, and enabling more experienced prosecution and defence practitioners to be involved at earlier stages of proceedings, instead of spending scarce resources on increasing numbers of Attorney-General’s policy advisers.

Reducing court waiting lists also requires not bungling crucial court IT projects such as the Criminal Justice Enhancement Program and Integrated Courts Management System, supporting a measured and modular approach to the deployment of new IT, and not imposing on the courts a government-controlled centralised IT system.

Human rights legislation and practice needs to be assessed against the criteria of providing accessible, affordable and effective remedies for genuine injustice without undermining democratic freedoms.  Assessed against those criteria, the 2006 Act cannot continue in its current form.

The Victorian Liberal Nationals Coalition is committed to effective sentencing that will prevent and deter crime, especially violent crime, and reduce recidivism.

This includes not only reform to custodial sentences, such as abolishing suspended sentences for all crimes, but also reforms to community based sentences and fines.  If first time and younger offenders experience sanctions with real teeth, such as being banned from licensed premises, or having to perform properly enforced restitution obligations, then they are far less likely to re-offend in future.

Where offenders have genuine drug or alcohol problems, mental illness or other difficulties, we support programs that seek to assist offenders to re-establish their lives on a stable basis, develop responsibility for their conduct and avoid re-offending.

A Coalition government will also introduce a range of considered and measured criminal law reforms, including reforming bail laws, amending double jeopardy laws to allow the Court of Appeal to grant re-trials where there is new and compelling evidence, and legislating to allow criminal bikie and other gangs to be declared illegal where the Supreme Court is satisfied they are being used for serious criminal activity.

As at the mid-October deadline for this article, there are many elements of the Coalition’s law and justice policy still to be announced.  However, each of our initiatives will be directed towards restoring Victoria’s legal system to make Victorians safer, improve access, reduce costs and waiting times, uphold rights and support the independent, impartial and efficient operation of our courts and tribunals.

Robert Clark MP is Liberal Shadow Attorney-General and Member for Box Hill

 

A Greens Attorney-General: Sue Pennicuik MLC, Greens Shadow Attorney-General

Australia, particularly at the state level, has not traditionally embraced a broad interpretation of the Attorney-General’s ‘legal affairs’ portfolio to encompass wider justice concerns.  In Victoria, which lacks a Minister for Justice, this limits the ability of the government to implement a coordinated, cross-portfolio response to fundamental justice issues.

If I were Attorney-General, I would consider the justice system as a whole, with a particular focus on the needs of the disadvantaged.  Being responsible for justice in this broad sense, I would work closely with ministers for police, corrections, health, housing, youth affairs, education, disability and other key portfolio areas to ensure that legislative outcomes reduce disadvantage, improve access to justice and benefit the community generally.

This is how I approached my ‘shadow’ Attorney-General portfolio throughout this parliamentary term.  It has led to important amendments to justice legislation, and to debate on key justice and human rights issues that would otherwise not have been aired.

Throughout this term I have been perplexed at a seemingly disjointed approach to legislating.  On one hand, the Attorney-General introduced legislation to unclog what a chorus of critics claim is an increasingly overloaded judicial system.  On the other hand, the Minister for Police introduced punitive, and often Charter incompatible legislation, potentially resulting in more people appearing before the courts and ending up in the corrections system.

I have opposed several pieces of legislation that expand police powers while reducing oversight and evaluation of those powers, increase sentences – often significantly, for existing offences such as ‘drunk in a public place’, and create new offences such as the undefined, yet nevertheless relatively serious, offence of ‘disorderly conduct’.  Most concerning were recent amendments providing for random searches and strip searches of children and people with impaired intellectual functioning without the presence of an independent third person.  If I were Attorney-General, I would negotiate to repeal these provisions because of the potential for misuse, the lack of supporting evidence for their introduction, and the known negative impacts of such legislation on the justice system, the community generally, and on disadvantaged people in particular.

If I were Attorney-General, I would repair gaps in the equal opportunity framework.  The Equal Opportunity Bill introduced this year did somewhat improve Victoria’s framework.  However, it still falls short of contemporary expectations.  In debating that bill, I moved to include ‘homelessness’ and ‘irrelevant criminal record’ as protected attributes.  It was disappointing that the government rejected these much needed amendments, leaving these highly disadvantaged groups open to continued legal discrimination.  I also attempted to remove the ability of religious organisations to continue to discriminate in employment on the basis of sex, marital and parental status, religious belief and gender identity.

Increased accountability across the justice system would also be a priority if I were Attorney-General.  In July this year, I put forward a motion calling on the government to establish an independent body to investigate all police shootings, deaths and serious injury in custody and complaints against police that involve allegations of human rights abuses.  Due to the inherent lack of necessary independence and a consequent incapacity to effectively investigate these matters, internal ‘police investigating police’ systems like the Victorian model have been found in international human rights jurisprudence to be incompatible with the right to life, which in Victoria is enshrined in s 9 of the Charter of Human Rights and Responsibilities Act.

In the final sitting week this year, I also moved to establish an independent prison inspectorate to provide external, independent and open scrutiny of Victoria’s custodial services.  This is currently undertaken by a small internal unit of the Department of Justice.  The work of this unit is not public and much of it is protected by freedom of information laws.  This is not the case in best-practice jurisdictions, and it is certainly not an indicator of a healthy, accountable justice system.

In 2008, I moved several successful amendments to the Coroners Bill that greatly improved access to justice for families who have been compelled, usually in very traumatic circumstances, into the coronial process.  My successful amendments included broadening the circumstances in which a coroner may investigate a death, and requiring responses from public statutory authorities and other bodies to any recommendations made to them by the coroner.  If I were Attorney General I would amend the Act to include my other proposed amendments, rejected by the government and others in that debate, including the provision of legal aid to interested parties and families, and expanding the factors open for comment by the coroner to include the prevention of future deaths.

If I were Attorney-General, I would take this more expansive, justice-driven view of the portfolio to increase accountability and oversight and include wider justice concerns in the portfolio.  This would result in important improvements for justice across a range of portfolio areas and improve public confidence in the justice system.

Sue Pennicuik is the Greens Shadow Attorney-General and Member of the Legislative Council for the Southern Metropolitan Region

Setting the Human Rights Agenda: HRLRC Policy Papers

The Human Rights Law Resource Centre has prepared a series of policy papers to inform and advance the human rights agenda in Australia.  Each brief identifies a human rights problem or opportunity, discusses the imperative for action, analyses relevant evidence, and makes concrete recommendations for Australia to advance the agenda at the international and national levels. The following Policy Papers are available:

 


 

Policy Paper on Strengthening the UN Human Rights Council: Actions for Australia (released 21 September 2010)

The work, functioning and status of the UN Human Rights Council will be reviewed in 2011.  An open-ended working group established by the Council to discuss this review is scheduled for 25 to 29 October 2010.

Coincidentally, Australia will participate in the Council’s Universal Periodic Review process from early- to mid-2011.

Both the Council review and the UPR provide an opportunity for Australia to engage with the Council in an active, constructive and principled manner and to further contribute to the promotion and protection of human rights on the ground.

To this end, the Centre has prepared a Policy Paper on Strengthening the Human Rights Council which outlines concrete proposals as to how Australia should contribute to strengthening the work and functioning of the Human Rights Council, both through:

  • best practice engagement with the Council and its various mechanisms; and
  • proactive participation and leadership in the review of the Council.

 

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Policy Paper on Human Rights in the Asia-Pacific: Australia's Role and Responsibilities (released 28 June 2010)

As the Federal Government prepares its response to the report of the Joint Parliamentary Committee on Foreign Affairs, Defence and Trade, ‘Human Rights and the Asia-Pacific: Opportunities and Challenges’, this policy brief on 'Human Rights in the Asia-Pacific: Australia’s Role and Responsibilities' contends that Australia should develop a comprehensive policy on human rights in the region.  The brief makes 21 concrete recommendations for action in the following areas:

  • Human Rights as a Key Instrument and Aim of Australian Engagement in the Region
  • Adopting a Human Rights-Based Approach to Aid and Development Assistance
  • Adopting a Human Rights-Based Approach to Military and Security Cooperation
  • Empowering Communities and Supporting NGOs
  • Human Rights Treaty Ratification and Implementation
  • Strengthening Human Rights Institutions
  • Enhancing Parliamentary Engagement with Human Rights
  • Human Rights Envoys and Ambassadors

 

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Policy Paper on an Agenda to Promote Equality and Address Discrimination in Australia (released 24 May 2010)

The policy paper on ‘Promoting Equality and Addressing Discrimination in Australia’ identifies that the law can and should play a central normative and educational role in advancing meaningful equality for all Australians.  This requires a shift away from an outdated and ineffective complaints-based, remedial model of anti-discrimination laws.  Instead, Australian law should promote a rights-based model of substantive equality which emphasises equal outcomes and addresses structural causes of inequality.  This would contribute to a more fair, cohesive and productive society.

The brief makes 7 concrete recommendations for action, including that:

  1. The Government should release an exposure draft for a single, comprehensive Equality Act which promotes and enshrines a legal right to substantive equality.
  2. The federal Equality Act should include a provision mandating that, after four years of operation, an inquiry be held into a constitutional amendment aimed at enshrining the right to equality.
  3. The Federal Government should require public bodies to consider equality in policy development, spending and service delivery.
  4. The Federal Government, its agencies and public authorities should use public procurement to promote equality and assess suppliers on the progress that they are making in reducing inequality.
  5. The Federal Government should show political leadership and support for the equality agenda by appointing a Minister for Human Rights and Equality who should hold a seat in cabinet.
  6. All public bodies should produce and publish annual equality reports.
  7. The Australian Human Rights Commission Act should be amended to provide that all Commissioners are to submit a report, to be tabled in Parliament, regarding the status of human rights in Australia within their areas of responsibility and containing concrete recommendations to enhance human rights in these areas.  Further, the Commission should be adequately resourced to discharge this function.

 

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Policy Paper on Protecting Privacy while Responding to Terrorism (released 3 May 2010)

The policy paper on 'Protecting Privacy whilst Responding to Terrorism' contends that the Australian Government should become a world leader in protecting the rights of its people to be safe from both terrorism and from undue interference with privacy.  Governments have a duty to protect the rights, lives and safety of people within their territory from legitimate threats of terrorist attacks.  However, protecting the community from terrorism and protecting human rights are not mutually exclusive.

The brief sets out the steps for the Australian Government to take to implement the approach to privacy protection recommended by the UN Special Rapporteur on Human Rights and Counter-Terrorism.  In particular it sets out important steps to be taken domestically, in both law and policy, and also opportunities to lead international developments such as a global declaration on data protection.

 

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Policy Paper on Foreign Policy and Human Rights (released 6 April 2010)

The policy paper on 'Foreign Policy and Human Rights' contends that human rights should be both a key goal and a key instrument of Australian foreign policy.  It sets out that, despite identifying ourselves as a ‘principled advocate of human rights for all’, and demonstrating significant commitment to human rights in practice, Australia has not developed a comprehensive, consistent and coherent policy on human rights and foreign affairs.  Such a policy could integrate human rights in all areas of Australian foreign affairs and capitalise on the benefits of doing so.

The brief maintains that Australia’s approach to human rights and foreign policy should be progressive, principled and persistent.  It sets out 14 concrete recommendations for action at the international, regional and domestic levels under the headings of:

  • a principled approach to universal human rights and accountability;
  • multilateralism and engagement with the United Nations; and
  • empowering communities and supporting NGOs.

 

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Policy Paper on Business and Human Rights (released 22 March 2010)

The policy paper on ‘Business and Human Rights’ contends that the further development and operationalisation of the business and human rights agenda presents a significant opportunity and responsibility for Australia, both at the international and domestic levels.  It contains 15 recommendations for Australian action at the international and local levels.

The brief makes 6 concrete recommendations for Australian action at the international level, including explicitly adopting the Special Representative’s framework as a basis for Australia’s approach to corporate human rights law and policy, and conducting conduct human rights impact assessments of proposed multilateral and bilateral trade and investment agreements, together with major public-private projects.

The brief makes 8 recommendations for Australian action at the local level, including using public procurement to reinforce the responsibility of business to respect human rights and to promote socially and environmentally responsible governance, and amending the Corporations Act 2001 to require (or at the very least explicitly permit) directors to consider human rights issues as an aspect of their duty to act in the best interests of the company.

 

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Building a Human Rights Constituency

Those who have been given the opportunity to share their thoughts on what they would do if they were Attorney-General in this space usually provide detailed and specific insight into changes that could be made to government policy, legislation, parliamentary processes and our justice system to strengthen human rights protection. But with the federal election behind us, and a ‘new political paradigm’ ahead, I thought I would take a slightly different approach.

Often in this country, the course of action required to promote and protect human rights – whether as a matter of international law, because it is the just and fair course, or because it is simply the most logical and reasonable course – is not the course taken.  The main reason for this deviation is that sometimes the human rights course is not considered to be electorally popular, or worse, is seen to be an electoral liability.

This is arguably what happened to in relation to the Human Rights Act for Australia.

So, in this new paradigm, if I were Attorney-General, I would take a page out of Joe Trippi’s book, ‘The Revolution Will Not be Televised’ – to introduce a Human Rights Act for Australia.  Now I understand that the reference to this book and the title itself may seem at odds with what is usually covered in this space, but I ask you to stick with me.

For those who have not heard of Joe Trippi, he was responsible for the Howard Dean for America campaign – known among political and campaigning circles as the man who first successfully used the internet to engage Americans in an election campaign – paving the way for President Obama.

In 2004, well prior to President Obama taking the White House and introducing sweeping heath care reform, Joe Trippi wrote: ‘Polls show that a majority of Americans want government to provide some level of heath care, especially for children.  For decades, politicians have talked about this.  So why don’t we have it?’

Trippi went on to highlight the millions of dollars made in campaign donations from lobbyists, suggesting that this was the reason no action had been taken to that date.  And he then explained how this could change in the future – with the advent of new technology which could be harnessed to build an engaged constituency of people:

But that’s before the President of the United States shows up in Washington with the e-mail addresses of six million of his closest supporters.  Before the President vows to govern the way he’d won – by tapping into the will of the American people.  Before he drops them all a note that says, ‘Hey, if you really want health care, I need your help.  Go to your computer right now and e-mail your congressman and tell him that you don’t want him listening to the pharmaceutical lobby’.

So what is the relevance of this to the introduction of a Human Rights Act in Australia?

Human rights are universal; as article 1 of the Universal Declaration of Human Rights states, ‘all human beings are born free and equal in dignity and rights’.  However, as we have seen recently in the context of the National Human Rights Consultation, the subsequent recommendations and Government response – sometimes the most obvious and logical next step is not taken.

The introduction of a Human Rights Act for Australia – a way of incorporating our international human rights obligations into domestic law, should not be controversial.  An election commitment to consult was made in 2007, by the then Opposition, which was successful and became the Government.  An independent consultation committee was established to seek the views of people in Australia and provide recommendations to Government in a report.  The report, based on overwhelming community support for the introduction of a Human Rights Act, recommended the enactment of such legislation.

And then, the Government responded by disavowing this recommendation, calling a Human Rights Act ‘contentious’ and ‘divisive’.

So what went wrong?  Well, this brings me back to Trippi.

Outside of legal, political and human rights circles, the idea of a Human Rights Act – while it may seem sensible – is not the kind of thing that fires you up, gets your blood boiling, makes you want to take to the streets or change your vote.

However, there is much about a Human Rights Act that connects with the interests of people and their daily lives which do energise and impassion people.  The challenge is to make this connection.

If I were Attorney-General, I would strive to bridge the disconnect between the way in which the portfolio is perceived and the impact it has on people on the ground.

If I were Attorney-General, I would make it my business to build a constituency of people who not only understood, but also were willing to fight for, the introduction of a Human Rights Act.  I would strive to build an active community of people who could see the real benefits of this legislation and could share it with their friends, family and colleagues in a way that would challenge the power of those opposed – those who spoke out against the Act, those who until this point had the ear of government.

If I were Attorney-General, I would take a long-tem view, looking to build on the size and scope of the national consultation, to build a constituency of support for better human rights protection – using parliamentary scrutiny and education initiatives to continue the conversation and keeping these and human rights clearly in the public domain.

My aim would be to ensure that human rights are at the centre of government decision-making.  A Human Rights Act is the way to achieve this, but an Act will be achieved without strong public understanding, engagement and support for human rights themselves.

This is what is needed to get a Human Rights Act and if I were Attorney-General, that is what I would do to ensure the next logical step is taken for what is right, just, fair and in keeping with our international human rights obligations.  Oh, and I would make sure I had a BIG email list.

Jenny Leong is a Campaign Coordinator at Amnesty International Australia and a recently appointed member of the Human Rights Law Resource Centre’s Advisory Committee

Strengthening the UN Human Rights Council: Actions for Australia

The work, functioning and status of the UN Human Rights Council will be reviewed in 2011.  An open-ended working group established by the Council to discuss this review is scheduled for 25 to 29 October 2010. Coincidentally, Australia will participate in the Council’s Universal Periodic Review process from early- to mid-2011.

Both the Council review and the UPR provide an opportunity for Australia to engage with the Council in an active, constructive and principled manner and to further contribute to the promotion and protection of human rights on the ground.

To this end, the Centre has prepared a Policy Paper which outlines concrete proposals as to how Australia should contribute to strengthening the work and functioning of the Human Rights Council, both through:

  • best practice engagement with the Council and its various mechanisms; and
  • proactive participation and leadership in the review of the Council.

Asia-Pacific: Brief to UN Special Rapporteur on Human Rights Defenders

On 3 September 2010, the Human Rights Law Resource Centre, together with the International Service for Human Rights and the Pacific Regional Rights Resource Team, provided a Brief on the Pacific Region to Ms Margaret Sekaggya, the Special Rapporteur on the Situation of Human Rights Defenders, in advance of her visit to Fiji scheduled for 6 to 10 September 2010. The brief is based on desktop research and provides preliminary or background information on human rights structures, initiatives and issues in the Pacific region.  National and regional non-government organisations will fully brief the Special Rapporteur on the substantive issues facing human rights defenders prior to or during her visit to Fiji.

The brief contains the following parts:

  • An outline of regional initiatives in relation to the protection of human rights in the Pacific region.
  • A table of the status of international human rights treaty signature, ratification and accession for Pacific Island nations as at 31 August 2010.
  • A table providing the dates for consideration of Pacific Island nations under the Universal Periodic Review mechanism of the Human Rights Council.
  • A table setting out the extent of constitutional protection of human rights in Pacific Island nations, with commentary from treaty monitoring bodies and from UPR reports on relevant gaps in human rights protection.  This table includes references to the situation of human rights defenders, women’s rights, freedom of association, rule of law and governance issues and independence of the judiciary that have been made by those bodies.
  • A summary of reports made by regional and international NGOs on the situation of human rights defenders in the Pacific, or on issues that relate to those concerns.

Providing Principled, Evidence-Based Leadership

To be honest, my usual fantasy is a sporting one.  It generally culminates in me scoring the crucial point with three seconds to go in the Grand Final.  My teammates – an anachronistic mixture of moustachioed players drawn mostly from the 1980s and 90s – rush over to congratulate me.  Nelson Mandela (captain-coach) hands me a poem with a Latin title. But sporting glory is fleeting.  If I want to enliven my fantasy life, I need to move to the political plane.  While the HRLRC’s parlour game allows me to skip the minutiae of pre-selection, factional alliances and kissing other people’s babies, I do probably need to clarify the ground rules.  The fantasy part is that I’m the Attorney-General and that people remember me fondly for my exploits in the 2010 Grand Final; all of the other details are real.  This means that I’m working within the confines of a hung parliament.

One of the biggest problems with a hung parliament is that the air of the electorates held by crucial independent members can be thick with the smell of pork.  When the government is daily faced with the prospect of losing a no-confidence motion on the floor of the House of Representatives, no proposal from Ms or Mr Crucial Independent MP can be dismissed as hare-brained.

In a country that values fairness, everyone’s human rights, including access to basic services, should receive equal protection.  To this end, I would establish an independent commission to audit all electorates to determine the true availability of core services, such as in health and education.  When my government plans to implement a new service in a particular place, it will be required to show three things.  First, that there is a demonstrable need for the service in this community.  Second, that communities in other, less politically-sensitive electorates are not being abandoned.  And third, that this proposal fits into a clear plan to lift core services, necessary for the enjoyment of basic rights, inall parts of Australia.

This brings me to my second proposal.  One of the great untold stories of Australian politics relates to a promise that all governments tend to break.  The promise seems so obvious that few people notice it as part of a party’s election manifesto, but it’s almost always there.  There’s usually some enthusiasm for the promise in the heady days after the election win.  But then one day, you realise it’s gone.  I’m talking about is the government’s promise to adopt a rational, evidence-based approach to developing policy and law.  It sounds like a no-brainer for any government, but it’s not.

Imagine if a major corporation commissioned a review of an aspect of its business, liaised with all its key stakeholders and the public, and received a report recommending a new strategy.  If the CEO said, ‘I can’t fault the logic in this report, but I’ve heard that a couple of focus groups reckon it all sounds a bit iffy, and so I’m going to give the whole thing a miss,’ then the Board would surely ask why a communications issue is impeding important substantive reform.

And yet, this happens time and again in government.  The National Human Rights Consultation is an excellent case in point.  It was a major public inquiry, it canvassed the views of experts and ordinary Australians alike, and it came up with a clear human rights reform template that elicited strong majority endorsement.  If there had been a clearly-identified logical problem with this report, one could understand the government’s reluctance to implement its key elements.  But that wasn’t the issue.

The government explained its reticence about the proposed Human Rights Act as being based on a fear of prolonging a ‘divisive’ debate, given that there was strong but not universal support for the more ambitious proposals in the NHRC report.  Surely, this is where political leadership comes in.  As Attorney-General, I would speak to the experts, obtain the evidence on difficult questions of policy, and then go for broke in persuading my colleagues and the broader public that this is the right way to go.

While it would be profoundly undemocratic to introduce policy and laws that the public as a whole disagrees with, true wisdom in any democracy doesn’t begin and end with the latest focus group.  A mature, sophisticated nation first gives its citizens the information necessary to form a view on a particular topic; it encourages open debate that allows for the participation of multiple perspectives; and it ends with the government providing principled leadership and making the tough decisions.

Edward Santow is a Senior Lecturer in Law at the University of NSW, and Director of the Charter of Human Rights Project at the Gilbert + Tobin Centre of Public Law.

A Ten Point Plan for the Promotion and Protection of Human Rights in Australia

Australia’s Human Rights Legacy and the 2010 Federal Election Respect for human rights is the foundation of a community that is fair, just, cohesive and inclusive.  The promotion and protection of human rights should be a key priority for the next Australian Government.

On the international stage, Australia has a proud bipartisan history in the development of human rights laws and institutions.  At home, the recent National Human Rights Consultation demonstrated that human rights matter deeply to Australians.  Human rights principles resonate with Australian democratic values, including the rule of law and our sense of a fair go.

The Consultation also demonstrated, however, that our framework of laws and institutions does not provide comprehensive protection of rights, particularly for vulnerable or disadvantaged groups.  The Consultation disclosed a strong majority view that ‘we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out’, including the homeless, people with mental illness, Aboriginal Australians, asylum seekers and children with disability.

Ten Policies for a Fairer Australia

The next Federal Government should commit to the following policies for a fairer Australia:

  1. A comprehensive poverty alleviation and social inclusion strategy, with holistic, concrete and measurable programs and targets, including in the areas of Indigenous disadvantage, mental illness, violence against women and homelessness.
  2. Consolidated federal anti-discrimination legislation which actively promotes equality, provides comprehensive protection against discrimination and establishes reporting frameworks and requirements to measure progress.  Equality can contribute to social cohesion, higher productivity and participation, and improved outcomes in areas including education and health.
  3. Strengthened parliamentary engagement with human rights, including by enacting the Human Rights (Parliamentary Scrutiny) Bill 2010, requiring the preparation of reasoned Statements of Compatibility for all proposed legislation, and empowering the Joint Parliamentary Human Rights Committee to ‘monitor national and international human rights obligations and provide suggestions and recommendations on how to best promote and protect human rights standards’.
  4. An inquiry into the merits of constitutional amendment to enshrine the right to equality and non-discrimination.
  5. A comprehensive federal Human Rights Act which provides legal recognition and protection of all civil, political, economic, social and cultural rights and establishes mechanisms to promote human dignity, good government and accountability.
  6. The establishment of mechanisms to ensure independent monitoring, oversight and scrutiny of all places of detention, including prisons, immigration detention centres, juvenile justice facilities, police cells, psychiatric hospitals and disability institutions.  The humane treatment of detainees contributes to rehabilitation, reduced recidivism, and safer and more cohesive communities.
  7. The abolition of mandatory immigration detention and off-shore processing, an increase in Australia’s humanitarian intake, and access to adequate housing, health care, education and work rights for refugees and asylum-seekers.  The next Federal Government should also legislate to provide complementary protection in accordance with Australia’s refugee and human rights law obligations.
  8. A comprehensive review of Australia’s counter-terrorism laws, policies and practices to ensure that they are consistent with international human rights standards and are reasonable, necessary, proportionate and effective.
  9. Committing to use the UN Declaration on the Rights of Indigenous Peoples as the basis for Indigenous affairs, including in relation to: the National Congress of Australia’s First Peoples; the commitment to ‘Close the Gap’; the amendment of the Northern Territory Intervention and native title legislation; the provision of reparations to the Stolen Generations; the repayment of Stolen Wages; and Treaty negotiations.
  10. A human rights-based approach to foreign policy, including by: undertaking Human Rights Impact Assessments across all areas of foreign affairs (including aid, development, trade, investment, business, labour, migration, defence, military cooperation, security and the environment); ensuring that human rights are incorporated into the objectives and activities of all regional organisations and processes in which Australia participates and that impact on human rights; and negotiating for bilateral and multilateral agreements to include human rights clauses and safeguards.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

Human Rights 2010 - Ten Policies for a Fairer Australia

Respect for human rights is the foundation of a community that is fair, just, cohesive and inclusive.  The promotion and protection of human rights should be a key priority for the next Australian Government. On the international stage, Australia has a proud bipartisan history in the development of human rights laws and institutions.  At home, the recent National Human Rights Consultation demonstrated that human rights matter deeply to Australians.  Human rights principles resonate with Australian democratic values, including the rule of law and our sense of a fair go.

The Consultation also demonstrated, however, that our framework of laws and institutions does not provide comprehensive protection of rights, particularly for vulnerable or disadvantaged groups.  The Consultation disclosed a strong majority view that ‘we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out’.

On 21 July 2010, the Human Rights Law Resource Centre released Human Rights 2010 - 10 Policies for a Fairer Australia.   Human Rights 2010 briefly sets out ten policies to which the next Federal Government should commit for a fairer Australia.  Together, the policies would promote human dignity, address disadvantage, enhance good government, and strengthen accountability.

Universal Periodic Review: Joint NGO Report on Australia

Australia is to be reviewed by the UN Human Rights Council through the Universal Periodic Review process in January 2011. A coalition of 68 NGOs - coordinated by the Human Rights Law Resource Centre, Kingsford Legal Centre and the National Association of Community Legal Centres - has submitted a 5 page Report to the UN Human Rights Council on Australia, setting out key human rights issues and concrete recommendations, including in relation to:

  • the legal recognition and protection of human rights
  • Australia's cooperation with international human rights mechanisms
  • equality and non-discrimination
  • women's rights
  • children's rights
  • the rights of people with disability
  • GLBTI rights
  • Indigenous rights, including in respect of the Northern Territory Intervention, the criminal justice system, native title, the Stolen Generations, Stolen Wages, and access to adequate health care, housing and education
  • the rights of migrants, refugees and asylum seekers
  • prisoners' rights and conditions of detention
  • police use of force and oversight and complaint mechanisms
  • the administration of justice
  • homelessness
  • mental health care
  • human rights and counter-terrorism
  • business and human rights
  • international assistance and Australian foreign policy

The report was submitted to the UN Human Rights Council in Geneva on 12 July 2010.

Further information on Australia’s review under the UPR process is available at http://www.hrlc.org.au/upr.

The submisssion of the Australian Human Rights Commission for the UPR is at http://www.humanrights.gov.au/upr/index.html.

Amnesty International and the Aboriginal and Torres Strait Islander Legal Services of Australia have also made NGO submissions on Australia for the UPR.

The Australian Government report for the UPR is at www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_InternationalHumanRights_UniversalPeriodicReview.

Promoting and Protecting Fairness: Time for Comprehensive Equality Law Reform

If I were to assume, if only in imagination, the role of Attorney-General, I would try to make human rights more effective for all Australians.  There is much to be done. The Government has recently introduced legislation to establish a Parliamentary Joint Committee on Human Rights and to require statements of compatibility of draft legislation to be laid before Parliament (Human Rights (Parliamentary Scrutiny) Bill 2010).  These measures take up, in part, the Report of the National Consultation (the Brennan Committee), but they create no new substantive rights.  The Committee’s recommendations for a comprehensive federal Human Rights Act have not been accepted.

Undaunted by this, I would nevertheless start a process aimed at the enactment of a general protection of the right to equality and non-discrimination, as the precursor of a constitutional provision.

Australian law does not ensure or protect equality on a comprehensive basis.  There are many gaps and inconsistencies in the current protection provided by federal anti-discrimination laws.  They do not apply, for example, to discrimination on the basis of religion, nationality or sexual preference.  There are exemptions and exclusions from the legislation, and it can be overridden, as occurred with theRacial Discrimination Act in 2007.  Equality in the judicial process is an accepted norm, but express constitutional protection of equality applies only to State discrimination against residents of another State (s 117).  The Constitution may actually authorise racial discrimination (s 51 xxvi).

The right to equality and non-discrimination is a basic human right, and is an essential element in the key instruments to which Australia is a party.  Collectively, those instruments require States to provide equality before the law and the equal protection of the law, comprehensive protection from discrimination and the equal enjoyment of rights and freedoms, without distinction or discrimination on any ground.  Equality rights apply to the full range of rights and freedoms, whether civil, political, economic, social or cultural.

Contrary to our international commitments, discrimination can occur in Australia for which no recourse or remedy is available.  The UN treaty bodies have criticised the lack of comprehensive protection of human rights in Australia.  The Human Rights Committee has, in particular, recommended the adoption of legislation providing comprehensive protection of the right to equality and non-discrimination (Concluding Observations, 2000, 2009).

Federal anti-discrimination laws need to be thoroughly overhauled to comply more fully with our international human rights obligations and to eliminate the current anomalies and inconsistencies.  The Brennan Committee recommended this as a priority area for reform.

Such reform, though welcome, would fall short of a full guarantee of equality and non-discrimination, comprehensive both as to grounds and areas of application. To meet our international commitments and to provide protection of equality, and the remedies which attach to it, we need a legislative guarantee of equality and non-discrimination, with similar force and effect to that envisaged for the rights which would be protected under a general Human Rights Act.  It should be the precursor to a constitutional guarantee.

A legislated guarantee of equality should be based on art 2(1) and art 26 of the ICCPR, which encompass equal enjoyment of rights, equal protection of the law and protection against any discrimination.

The ACT Human Rights Act 2004, s 8 and the Victorian Charter of Human Rights and Responsibilities Act 2006, s 8 echo the provisions of ICCPR art 26.  Valuable models for the protection of equality rights can also be found in the Canadian Charter (s 15) and South African Bill of Rights (s 9).

A comprehensive Equality Act would guarantee equality before the law and under the law, equal protection and benefit of the law, protection against discrimination on any ground, and protection of the full and equal enjoyment of human rights and fundamental freedoms.  Compatibly with the Covenant, the legislation should permit distinctions to be made on reasonable and objective criteria, in pursuit of a legitimate purpose consistent with recognised rights, and for affirmative action to eliminate conditions which contribute to prohibited discrimination.  It would be aimed primarily at public authorities (including those of the States) and would have impact on subsequent legislation as far as is possible.  It would act in conjunction with the reformed anti-discrimination laws.

The courts would have jurisdiction to consider whether a distinction was discriminatory; the outcome of any decision would depend on the model adopted.  Where direct remedies are considered appropriate, these should be accessible and affordable.

No doubt difficult issues would arise from time to time, possibly with political overtones.  However, jurisprudence under the ICCPR and in Canada and other countries show that the courts are equal to these challenges.

My first step would be to initiate a consultation process on the most appropriate mechanism for implementing a comprehensive statutory guarantee of equality along the lines outlined, to be introduced and adopted as soon as possible.

The enactment of such a law would be entirely consistent with the goals of any more comprehensive Human Rights Act which might follow, as it would be a part of such an Act.  It would build on our existing protection of rights, advance compliance with our principal human rights obligations, overcome anomalies and gaps in current protection and would accord with the ideals of fairness and equality for which Australia likes to be known.

Elizabeth Evatt AC is a former judge of the Federal Court and Chief Justice of the Family Court, a former member of the UN Human Rights Committee and the UN Committee on the Elimination of Discrimination against Women, and a Commissioner of the International Commission of Jurists.

Investigating and Prosecuting War Crimes and Crimes against Humanity

If I were Commonwealth Attorney-General, I would make it one of my highest policy priorities to rectify the shameful indifference of successive Australian Governments to the presence of alleged war criminals in our nation.  Allegations of responsibility for atrocities perpetrated overseas by individuals now enjoying life in Australia with no apparent prospect of investigation and prosecution (in the absence of an extradition request from another country) are rife in many ethnic communities fleeing societies wracked by conflict and violence.  Even though some of these allegations may well be vexatious, I am convinced that many are not.  Dragan Vasiljkovic’s failed defamation action against News Ltd not only vindicates my personal view but also illustrates the severity of the persistent allegations.  I could not, in good conscience, hold the position of First Law Officer of the Commonwealth and perpetuate the indifference that apparently represents bi-partisan political orthodoxy. My first initiative in pursuit of the policy objective would be legislative reform to fill the gaps in our existing legislation.  The Howard Government’s implementing legislation for the International Criminal Court (International Criminal Court (Consequential Amendments) Act 2002) was both comprehensive and unprecedented in its scope.  Any alleged war crimes, crimes against humanity or acts of genocide committed anywhere in the world after 1 July 2002 (the commencement date of the legislation) can now be prosecuted in Australian courts.

Unfortunately the temporal limitation of the ICC legislation is problematic.  The only war crimes perpetrated before 1 July 2002 that can be prosecuted in Australian courts are war crimes committed in Europe between 1939 and 1945 (War Crimes Act 1945 as amended in 1989) and grave breaches of the four Geneva Conventions of 1949 and of Additional Protocol I of 1977 (Geneva Conventions Act 1957 as amended in 1991).  No acts of genocide or crimes against humanity (with some limited exceptions for acts of torture and hostage-taking) perpetrated before 1 July 2002 can be prosecuted before Australian courts.  I would introduce legislation to amend our ICC implementing legislation.

Critics would no doubt claim that the proposed legislation retrospectively criminalises conduct which at the time it was committed could not have been prosecuted in Australian courts.  I would anticipate that criticism and answer it by reference to the majority opinion of the High Court in Polyukhovichupholding the constitutional validity of the 1989 amendments to the War Crimes Act 1945.  There is a fundamental distinction between retrospectively criminalising conduct which at the time it was committed was not criminal and retrospectively extending the jurisdiction of Australian courts to conduct which was unquestionably criminalised by international law at the time it was committed.

Canada, New Zealand and the United Kingdom have all extended the jurisdiction of their national courts retrospectively to cover international crimes perpetrated outside their respective physical territories.  Both Canada and New Zealand extended retrospective jurisdiction to their national courts at the time of the adoption of their ICC implementing legislation (both in 2000).  The UK’s original ICC implementing legislation adopted in 2001 only had prospective effect.  However, in November 2009, that legislation was amended to extend the jurisdiction of UK courts over war crimes, crimes against humanity and genocide retrospectively.  The legislation requires the court to determine that the alleged act constituted an international crime at the time it was committed as a condition for the exercise of retrospective jurisdiction.

I would hope that with proper explanation and forthright advocacy both Parliament and the Australian people would understand the rationale for and support the adoption of the legislation.  I understand of course that the existence of legislation does not automatically translate into its utilisation.  The case of Dragan Vasiljkovic is again instructive.  The allegations against him constitute grave breaches of the Geneva Conventions and of Additional Protocol I, such that he could have been tried in Australia pursuant to the Geneva Conventions Act 1957 (as amended in 1991).  Despite this legislative framework, there is no evidence of any formal investigation into the allegations against him in this country, despite widespread knowledge in Australia of his alleged involvement in the conflict in Croatia from at least the mid-1990s.  This purely reactive approach to an extradition request is simply not good enough for a country that proudly speaks of its commitment to international justice on the world stage.  If we are not even prepared to act against one of our own citizens who travelled to the Balkans to fight on the side of his ethnic brethren and returned to Australia with allegations of atrocity against him, what hope is there that we will take a more proactive approach to those who have immigrated to Australia with similar allegations against them?

Having achieved the necessary legislative reform, my next policy initiative would be to reinstate the Special Investigations Unit – disbanded controversially in the early 1990s in the wake of failed litigation pursuant to the War Crimes Act against alleged former Nazis (including Ivan Polyukhovich).  I would ensure the allocation of financial resources to rebuild the impressive investigatory expertise that the Unit had developed and I would appoint a Director who would emulate the intellectual acuity, skills, and vision to drive a concerted attack on impunity for atrocity that characterised the Founding Director of the SIU – the late Bob Greeenwood QC.  As the newly reformed SIU investigated allegations around the country I would feel content that I had made a significant contribution to justice and to the enhancement of our national commitment to the Rule of Law.

Tim McCormack is Professor of Law at Melbourne Law School and Special Adviser on International Humanitarian Law to the Prosecutor of the International Criminal Court, The Hague

Human Rights and Aid Effectiveness in Papua New Guinea

On 27 May 2010, the Centre sent a letter to the Foreign Minister, Stephen Smith, in relation to the current review of the PNG-Australia Development Cooperation Treaty. In its letter, the Centre recalled the recent recommendation of the Joint Standing Committee on Foreign Affairs, Defence and Trade that AusAID ‘adopt a human rights-based approach to the planning and implementation of development projects’.  The Centre also drew attention to the call by the UN Special Rapporteur on Torture for ‘the international donor community to consider the protection of human rights as the highest priority’ in PNG.

Having regard to these developments, the Centre outlined that the treaty review is a significant opportunity for Australia to enhance aid effectiveness, demonstrate leadership on human rights in the Asia-Pacific, and contribute to the realisation of human rights in PNG in practical and effective ways.  Further, the Centre called on the Australian Government to take advantage of this opportunity by explicitly committing to the promotion and protection of human rights as a primary goal and instrument of Australia’s development cooperation with PNG.

A Real Walk for Justice

If I were Australia’s Attorney General for the day, I would begin the day with a walk for justice – a real one, taking in the sights and sounds of some of our most disadvantaged communities. I would begin in the Alice Springs Town Camps and would spend the time talking to the Aboriginal people there and asking them how the Intervention is really affecting them and what they would have Government do to assist them.

Second on the itinerary would be some of the neighbourhoods identified in the Dropping Off the Edge: the Distribution of Disadvantage in Australia report – a joint project of Catholic Social Services and Jesuit Social Services, which maps national disadvantage and which found that just 1.7 per cent of postcodes and communities across Australia account for more than seven times their share of top rank positions on the major factors that cause intergenerational poverty.  I would visit some of these people and ask them what their needs are and what they think can be done to address the high levels of crime and imprisonment that result from the unemployment, low income and low health that plague them.

Next would be the waiting rooms of our Children’s Courts, lower courts and Family Courts – the areas where the unlucky people who appear before our courts sit and tremble before their encounter with our justice system.  I would speak with these people and ask them what brought them there and what could have been done to prevent them needing to appear before a judge.

Finally, I would visit some schools – primary schools, high schools, schools in rich areas and in poor, minority schools, special needs schools and Indigenous schools and I would find out what civic education looks like in those schools and what the kids there think of government, of the law and of justice.

After this walk for justice I would go back to my office and call together smart people, social justice minded people, creative thinkers and people who make things happen.  I would banish political advisers, risk managers and bean counters.  Together we would map out actions that would respond to the needs of the people who had spoken to me.  We would develop plans in direct response to what they said was needed.

These might include a robust national bill of rights, more funding for access to justice for the disadvantaged, more civic education programs, more court diversion and alternate dispute resolution.  It would be very likely to include reintroduction of the Racial Discrimination Act with respect to the Northern Territory Intervention.  However, I cannot be certain of any of those outcomes, as they will depend on what I find people want and need.

When we were finished developing the ideas fully (a quick business in this parallel universe) I would call in my media spokesperson and tell her to blitz television, radio and print media with interviews and statements of me announcing in great detail every aspect of the new programs, all of which would commence immediately.  I would make sure to tell every interviewer that these were core undertakings.

Nicky Friedman is Head of Pro Bono and Community Services with Allens Arthur Robinson

Promoting Access to Justice and the Protection of Human Rights

As Attorney-General, I have a key role to play in promoting access to justice.  I fully support the recognition in my Department’s report, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009), that access to justice for all Australians – and particularly those who are the most marginalised and disadvantaged – is fundamental to the effective protection and promotion of human rights, the rule of law and social inclusion.  Access to justice is a key indicator of a healthy democracy. I have a portfolio that will continue to grapple with the issue of access to justice.  I applaud the commitment of my predecessor but believe that the critical question remains for government: what have we achieved?  Two issues that I will continue to address as a high priority are:

  • to improve our access to justice framework by radically rethinking the way in which Commonwealth funds are distributed to organisations that provide community legal services; and
  • to make significant changes to substantive justice by ensuring that Australia’s legal framework facilitates the promotion and protection of human rights of all Australians.

The provision of adequate funding for community legal services, by which I mean legal aid, community legal centres, and Aboriginal and Torres Strait Islander Legal Services, has presented one of the most significant challenges to access to justice for the most marginalised and disadvantaged people in our community: a challenge and responsibility that has not been met.  Like my predecessor, this will be one of my primary endeavours.

A September 2009 report by my Department found that in 2007-08, over $1 billion was spent by the Commonwealth to support the federal civil justice system.  Only a little over a quarter of that amount, $280 million, was spent on legal assistance programs with the rest spent on legal institutions such as courts and tribunals.  In the same period, expenditure by Government agencies on legal services for themselves was over half a billion dollars.  For the decade prior to 2007, community legal centres received no increase in recurrent funding from the Commonwealth, other than annual indexation of around 2% – less than the real increase in their costs.  This meant an 18% reduction in funding over that period in real terms.

My concern though is not just about increasing funding.  I am also concerned to ensure that funding is directed to areas of greatest need.  Currently the Department measures met legal need (ie, services delivered).  This does not tell us about unmet legal need, about the person or family that does not know of the availability of potential assistance, or cannot get to the door or the telephone.

As A-G, I would implement evidence based legal needs assessments of geographic areas and of groups with special needs, and ensure that the results are taken into account in future funding decisions.

The promotion and protection of human rights in Australia is another key challenge to promoting effective access to justice.  Australia is the only developed democracy without a legislative or constitutional Charter of Rights which enshrines international human rights standards that our Government has made a political and legal commitment to uphold and promote at the UN level.  Although Australia is a party to the core human rights treaties, which provide a framework for human rights protections, there is no legal guarantee that these rights will be protected.

As Attorney-General, I will introduce a Human Rights Act for Australia and promote its adoption by both Houses of Parliament.  In doing this, I will be giving effect to the community expectations regarding the protection of human rights in this country: 87% of the 35,000 written submissions to the National Human Rights Committee that addressed the issue of statutory protection of human rights were in favour of a Human Rights Act.  A Human Rights Act will also ensure that we have:

  • a legal framework for the recognition and protection of the rights of all people, including the most marginalised and disadvantaged;
  • improved public service delivery; and
  • fulfilment of the legal and political commitments Australia has already made as a state party to international human rights instruments.

In the construction of a Human Rights Act, I will be generally led by the Committee’s report, which represents one of the broadest community consultations by any government.  However, I would also include more robust protections of the rights of Aboriginal and Torres Strait Islander peoples than suggested in the report.  In addition to making specific reference in the Human Rights Act to Aboriginal and Torres Strait Islander peoples’ rights in a way that reflects Australia’s commitments under the UN Declaration on the Rights of Indigenous Peoples, I would also undertake an audit of all relevant federal laws, policies and practices to determine their compliance with the rights of our Aboriginal and Torres Strait Islander communities.

Louise Edwards is Policy and Projects Officer with the National Association of Community Legal Centres

Law, Order and the Australian Way

In Democracy Inc, Sheldon Wolin, professor emeritus of politics atPrincetonUniversity, constructs a political theory of theUnited States as an inverted totalitarianism.  The theory describes a populace that is relatively uninterested in political participation; a politics dominated by concerns of patriotism brought on by the influence of an amorphous terrorist threat; power distributed amongst an elite that revolves between employment with big business, the military and government and acts, in each role, and sees no contradiction between the various roles; electoral campaigns that are directed exclusively at the undecideds; corporate and military sectors that utilise the benefits of science for their own purposes but cooperate with fundamentalist religion to lower the esteem of science in the public imagination; the absence of any concern to promote and implement policies that reduce social inequality and might provide power or hope to the poor; and the dismantling of environmental safeguards built up by past struggles.  Although very different to past totalitarian regimes of the right or left, the system outlined by Wolin minimises any meaningful involvement by those elements of the populace that are not part of the ruling elite in politics or the possession of power. Whether or not Australian politics would be amenable to a similar analysis,Australiais strongly influenced by developments in theUnited States.  In particular, the war on terrorism was fulsomely adopted by Australian politicians and political parties as a unifying theme and a source of political rhetoric.  In one respect at least,Australia, at all levels of government, deserves and reflects the description that Wolin reserved for the Bush administration of the last decade:

No previous administration in American history had demanded such extraordinary powers in order to muster the resources of the nation in pursuit of an enterprise as vaguely defined as ‘the war against terrorism’ or demanded such an enormous outlay of public funds for a mission whose end seemed far distant and difficult to recognise if and when it might be achieved.

The fashions of politics operate similarly to other memes.  Developed in one area, ideas spread without obvious effort on the part of their purveyors.  In this way, travelling in the wake of the anti-terrorist hysteria, the depiction ofAustraliaas ungovernable unless governments provide rapidly accelerating police powers continues even as the events of September 2001 recede into the past.

Greg Barns, republican activist and member of the Victorian and Tasmanian Bars, writes insightfully on a range of issues of interest to human rights activists.  In a Crikey article of 21 January 2010, he brought together a number of the expansive ‘law and order’ actions by various State governments.  Barns pointed out that Victorian Premier, John Brumby, was whipping up more hysteria (my interpolation) about heavy drinking by young people at the same time as he was accusing retired General, Peter Cosgrove, of being a liar (again, my interpolation) for daring to suggest that racism might be a problem in Australia and the likely cause of at least some attacks on Indian students.

Barns also pointed out that Brumby’s government had, a month earlier, legislated to add to the police arsenal random stop and search powers (exercisable without any requirement of reasonable suspicion of any wrongful behaviour).  He pointed out that similar powers in theUKhad led to police targeting particular ethnic communities giving rise to racial tension.  (I revisited the story just after leaving a national office holder of a respected international NGO who had regaled me over lunch with stories of police repeatedly stopping the car that he was driving (and which he owned) to accuse him of stealing it.  My lunch time companion just happens to be of a Palestinian heritage.)

Barns’ story went on to mention that the Government of Western Australia is allowing WA police to enforce a total legal ban on drinking in public and planning to legislate prohibited behaviour orders that can ban people from going to particular places.  These laws also have aUKprovenance and have been used in that country to target mentally ill people and the homeless.

The legislative actions described in Greg Barns’ article comprise just part of the domestic law and order wave that is sweepingAustraliapost a decade of legislating draconian anti-terror laws.

After Anna Bligh’s surprise win in the 2009 election, Cameron Dick was appointed Attorney-General ofQueensland.  Cameron had just been elected to his first term of Parliament.  Cameron is well respected among his colleagues at the Bar, and also among those with whom he had contact while working as a ministerial adviser, as a thoughtful and conscientious person with progressive values.

One of Cameron’s first tasks as the new Attorney-General was to shepherd through Parliament the Criminal Organisation Bill, theQueensland version of the ‘anti-bikie legislation’ which has been spreading from State Parliament to State Parliament.  Seeming to take its cue from much of the content of the anti-terrorist legislation enacted over recent years, this legislation offends most of the principles that comprise the rule of law, the central characteristic of our legal system on which we pride ourselves.  It enshrines guilt by association by providing for the proscribing of organisations.  It tramples on equality before the law by allowing for members of proscribed organisations to be subject to control orders and ‘public safety orders’ by which the subjects of the orders commit criminal offences by doing what is a legal act for every other member of the community.  And these powers are not to be exercised in open court by direct evidence about which the person accused may meet and challenge his or her accusers.  Rather, the Courts may receive criminal intelligence, an arcane and unreliable substance, which is to be kept secret from the person who is the subject of the applications under the Act and their legal advisers.  A Criminal Organisation Public Interest Monitor (‘the COPIM’) will be there to assist the court but, of course, the COPIM, who is supposed to represent the public interest, will not be able to receive informed instructions from the person or organisation accused.

Most human rights lawyers who have had experience with ‘criminal intelligence’ have concluded, at the end of the day, that most claims made about it by its proponents turn out to be unjustified and that much of it turns out to be unreliable.  Much of it turns out to be gossip sourced from persons with an axe to grind.  It will be that criminal intelligence on the basis of which people will be banned, on pain of committing a criminal offence, from talking to friends or attending the fireworks displays on New Year’s Eve.

What does all this mean for my hypothetical career as the Attorney-General ofQueensland?  It means that it will be short.  With desperate parties fighting one another for the undecided voter by running a new line of law and order auctions, any Attorney-General is likely to be under huge pressure to introduce more and more draconian legislation infringing, even further, upon civil rights principles that were once held sacred, even by politicians.

I can envisage my excited trip to my first Cabinet meeting with a bundle of proposals to make our legal and justice systems more friendly, more accessible and more successful in keeping disadvantaged groups out of prison and rehabilitating those who find themselves incarcerated.

Equally clearly, I can envisage my doleful walk to the Premier’s office, immediately afterwards, to give her my beautifully crafted resignation letter.

‘Ah well’, I will say to myself as I trudge away from that one on one, ‘we are here for a good time not a long time.’*

Stephen Keim SC is a Queensland barrister.  In 2009, he received the prestigious Australian Human Rights Medal for his outstanding and long-term involvement in ‘many cases aimed at furthering the human rights of individuals and groups such as prisoners, refugees, people with disabilities and people experiencing discrimination – work he often undertook on a pro-bono basis’. 

* Apologies to Canadian rock band, Trooper.  Their web site is www.trooper.com

Answering the Call for Economic and Social Rights in Australia

If I were the Attorney-General, I would take seriously the call by Australians for economic and social rights to be better protected and promoted in this country.  I would be pleased that over 35 000 Australians took time to participate in the National Human Rights Consultation that I launched in December 2008.  Yet I would not accept the praise of many – that the process stands as a leading example of how national governments should consult communities about human rights – until I had issued a genuine response. In preparing this response, I would attend to the community’s call for giving priority to rights to health care, housing and education.  These would be addressed constructively with the Rudd Government’s reform agenda of social inclusion, access to justice, and national security.  I would also recall the Australian Labor Party’s historic role in the creation of Australia’s social welfare architecture, in legislation dealing with labour, health care and education.

The drafters of the Universal Declaration of Human Rights understood that human rights cannot be protected without catering for the material needs of the most vulnerable.  The fundamental rights that accord with being human do not only involve civil and political rights.  States must also respect, protect and fulfil the rights of everyone to have access to food, clothing, housing, health care, and education.

And as those drafters made clear, this realization is as important to peace and national security as it is to inclusion and access to justice.  I would recommend, in this spirit, that Australia ratify the Optional Protocol of the International Covenant on Economic, Social and Cultural Rights and encourage the Minister for Foreign Affairs, Stephen Smith, to persuade other countries to do so in order to bolster the post-Cold War economic and social rights framework as well as the human rights institutions of our region.

Closer to home, I would engage with some of the National Human Rights Consultation Committee’s excellent recommendations, such as the adoption of a federal Human Rights Act, and supplement others, such as its institutionally timid exploration of how economic and social rights correspond with judicially manageable standards.  I would ask my Department, the Australian Law Reform Commission and other experts, to assist me in understanding the rich international and comparative examples that indicate how economic and social rights work in advanced legal systems.  I would compare this advice with earlier white papers and reports on Indigenous health and well-being, housing, water and legal services, and get advice on implementing the recommendations which support human rights in institutionally creative and targeted ways.

I would work hard to understand the hurdles and opportunities presented by recognizing economic and social rights as, on the one hand, a frame of political discourse in Australia and on the other, a legally robust category.  It may be that as a frame of discourse, claims of ‘rights’ help particular groups to communicate, and my colleagues in government and others to understand, how hunger, indigence, medical neglect, or barriers to schooling are public injustices in Australia, rather than private misfortunes.  This frame may even unite political minorities that are grappling with a systemic problem from different perspectives.  I would remind my colleagues in Cabinet that Australians who participated in the consultation described serious failings in access to health care, education and housing in rural and urban communities.

In approaching the legal category of economic and social rights, I would consider how one can exert legal pressure on decision-makers in diverse scenarios.  First, I would survey the ways in which the duties to respect, protect and fulfil economic and social rights would alter the role of parliamentary committees and the drafting and preparation of legislation.  This would also require me to investigate current approaches to measuring and monitoring economic and social rights.

Second, I would examine the obligations that would be placed on policy-makers and bureaucrats.  An apt example is offered by South Africa: where administrative decision-makers must now act ‘reasonably’ in matters of economic and social rights.  This standard involves measures of procedural fairness, familiar to Australian administrative law, but also includes an explicit requirement that decision-makers do not ignore the interests of the most vulnerable in devising and implementing policies around housing or health care.

Third, I would explore the ways in which adjudication would be altered by legislated economic and social rights.  I would reject the Committee’s recommendations that such rights should, without further study, be taken off the adjudicative agenda.  I would instead get advice on how such rights may translate to a justiciable complaint, or otherwise figure as subjective entitlements to certain procedural protections, or as a principle to inform the interpretation of legislation and the common law.

All of these issues will provoke more thinking and more action.  If my study finds that a change is needed in the prevailing judicial culture in Australia, I would increase the resources for ongoing judicial education, encourage the use of international and comparative materials by Australian courts and advocates, and perhaps think about the trajectory of judicial appointments in Australia in a more expansive way.

In all of my endeavours as Attorney-General, I would be encouraged by the view of many that the protection of economic and social rights leads to a renewal of democracy, rather than a restriction of it.

Dr Katharine Young is a recent graduate of Harvard University and a research fellow at ANU’s Regulatory Institutions Network

Homelessness and Human Rights: It’s Time to Act

I was delighted to hear that my colleagues on the House Committee on Family, Community, Housing and Youth recently reported on the need for a new piece of legislation, responding to homelessness in Australia. People experiencing homelessness will continue to be the subject of human rights violations unless my Government enacts a Federal Homelessness Act, which builds on the existing legislative framework in the Supported Accommodation and Assistance Act and extends the right to adequate housing to all Australians.  I take this opportunity to commit to the introduction of such legislation.

The Committee’s report considered the detailed reasoning around the benefits of framing homeless services within a human rights-based approach.  Such an approach provides real, demonstrative benefits for government, consumers and services alike, and my cabinet colleagues are slowly warming to the idea of a human rights-based approach to government policies and practice.

However, such an approach requires a legislative framework to guide practices and policies, and I will work with both sides of the House to implement real legislative change that will shift the governmental and cultural response to homelessness.  (Somewhat naively perhaps, I would like to think that bipartisanship will be a feature of my tenure as Attorney-General, and of our Government’s lasting legacy in this place!)  In that vein, the introduction of a Human Rights Act is a key priority in my Government’s agenda, and one that I am proactively and energetically pursuing.

An important component of our newly-embraced human rights approach is the participation and empowerment of people within the community.  As Attorney-General, I will ensure that my colleagues and I are able to hear the experiences and ideas of people experiencing homelessness and to try and comprehend the barriers to social inclusion that they experience on a daily basis.

One of the violations that I keep hearing about is the discrimination faced by people experiencing homelessness.  The people I have been consulting with repeatedly and consistently tell me that discrimination on the basis of a persons’ social status, particularly in the provision of accommodation and goods and services, remains a daily occurrence for many vulnerable and disadvantaged Australians.  I will enact comprehensive equality legislation to, among other things, protect people against discrimination on the basis of their homelessness, their unemployment or their receipt of Centrelink benefits.  My Government is serious about social inclusion, and simple protections against discrimination are ‘easy wins’ that we can implement today, that will have lasting and positive effects.

Public and private housing in Australia is unaffordable, inadequate and there is not enough to meet the needs of the most disadvantaged and marginalised.  While not strictly falling within my portfolio responsibilities, as Attorney-General I have a responsibility to advocate for the most marginalised and disadvantaged people in our community.  I am also fully aware that that the legal system operates within the broader social and economic context of our society.  As homelessness rates continue to grow (despite governments’ best efforts), the reality is that we need more housing stock to ensure that people are able to put a roof over their heads and start to address entrenched disadvantage, focusing on the needs of the individual.  In leading jurisdictions, this approach to addressing homelessness is called ‘Housing First’ and recognises the interdependence of access to adequate housing, social inclusion and economic participation.

The complex nature of homelessness and the need for individual tailored responses calls for a whole-of-government approach. However, I think that it is important that this whole-of-government approach is also adopted when developing broader legislative and policy frameworks.

There are a number of areas in which disadvantage is perpetuated through inappropriate criminal justice responses to particular acts or behaviors which criminalize poverty and disadvantage.  Examples of criminalised behaviors that would better be dealt with under an integrated whole-of-government approach include begging and a range of public space ‘offences’.  To my mind, these wrongs demand a public policy response that addresses complex social and economic causes (including lack of access to housing, income support, education and health services), and a coordinated holistic, integrated, multi-agency approach to addressing individual and systemic disadvantage.

Working with the Standing Committee of Attorneys-General, we will contextualise and characterise these issues as social issues rather than criminal issues, and encourage all layers of government to respond accordingly.  Criminalising poverty and disadvantage, or criminalising behaviors or acts that will have a disproportionate effect on people experiencing poverty and disadvantage, is just not on.

When announcing the Green Paper on Homelessness on 26 January 2008, then Prime Minister Kevin Rudd made the following comment:

It [homelessness] is something which you can either push to one side and sweep under the carpet or you can say, ‘Actually this is just dead wrong, we need to do something about it’.  We don’t believe it is something which a country as wealthy as ours in the 21st century can just ignore.

In introducing a new Homelessness Act (and a Human Rights Act), a rights-based approach across government and dealing with wrongful discrimination and criminalisation of impoverished and disadvantaged Australians, my Government has the opportunity to respond to homelessness as a human rights issue.  To do anything else is just dead wrong – not only do we need to do something about it, we will.

James Farrell is Manager of the PILCH Homeless Persons’ Legal Clinic