Twelve years. Twelve long, dark years. Over a decade during which Australia’s human rights performance was comprehensively set back. But at last it’s over. There is a lot of ground to be made up, things that need to be undone and undone things that need to be done. We are entitled to have high expectations of the new federal Labor Government but the human rights agenda is a big one. Where to begin? I suggest this agenda of priorities for law reform, program development, institutional renewal and international re-engagement as a good starting point for Kevin 07 in Australia 08. Not a human rights agenda for the full three year term, just for this first year, the starting points.
Our experience is that the existing federal constitution, statute law and common law have not been enough to prevent the enactment of laws violating human rights. The worst of those enactments must be addressed as the highest priority. That means changes to:
- the Migration Act, to remove all aspects of arbitrary detention, including the mandatory detention of certain asylum seekers, to restore the right of all those entering Australian territory to seek asylum as refugees and to extend the full benefits of Australian residence and citizenship to all those granted asylum without discrimination;
- the Native Title Act, to make it subject again to the Racial Discrimination Act and to restore rights to consultation; and
- the anti-terrorism legislation, to amend provisions authorising arbitrary detention and to make it subject to the Racial Discrimination Act.
More broadly, it’s time to adopt a national Bill of Rights. The Labor Party’s National Platform commits the Government to this and it needs to be done urgently. If ever there were any doubt that Australian law was inadequate to protect human rights, that doubt was dispelled when High Court judges said that laws brought before them breached fundamental human rights and yet they were powerless to do anything about it in the matter of Al-Kateb. Some of the States and Territories have led or are leading the way. Particular praise is due to Jon Stanhope, Chief Minister in the ACT, who took the first courageous steps in the face of outright hostility from the then Federal Government and many of his State Labor colleagues. Now, this year, the Rudd Government has to begin the urgent process of fixing it federally.
Good laws are essential to protect and promote human rights but are not sufficient. Programs too are required to address the serious deficiencies in human rights enjoyment and practice in Australia.
Without doubt the highest priority here has to be addressing Indigenous Australians’ entrenched, historic experience of human rights violations. The first important step has been taken. Although the act was symbolic rather than substantive, the Rudd Government’s decision to commence its term with the long overdue governmental and parliamentary apology to Indigenous peoples, especially those of the Stolen Generations, cannot be overestimated in its significance. Establishing a bipartisan ‘national unity’ process to seek ways forward is almost as significant. At last there is a good chance that as a nation we can come to terms with the past, make our peace with ourselves, remove the Indigenous race card from national political life, and begin to build a far better future. Success requires much more than good intentions and symbolic acts but this has been a very, very good start.
The second priority is the human right to education, especially school education. The Government has already recognised education as one of its social priorities. The programs that implement that recognition, however, have to be carefully targeted towards the most needy children in the areas of greatest disadvantage. By any measure, this requires that priority be given to children in rural and remote areas, both Indigenous and non-Indigenous, and in the poor outer suburbs of our cities. The National Inquiry into Rural and Remote Education, conducted by the Human Rights and Equal Opportunity Commission in the late 1990s, made recommendations that are still relevant and still largely unimplemented. The Dusseldorp Skills Forum’s 2004 report on the right to education and the obligations of Australian Governments contributed further to this discussion. Appalling educational inequality violates the rights of children today and sentences them to lives of inequality in the future.
The third priority here is to begin work on a pressing issue, the human rights implications of climate change. At last we have a Federal Government prepared to acknowledge the significance of climate change. We are well aware that climate change will have environmental, economic and social impacts but less aware that it will also affect human rights. Yet little work has been done on this. The Government should request HREOC to undertake a public inquiry into this issue and report on what needs to be done to ensure that we are ready for the human rights challenges climate change will bring. It should start this year.
And speaking of HREOC, this important national institution is in need of renewal. During the Howard decade it was systematically diminished and sidelined. Its budget was cut by 40% in 1998 as punishment for its politically unacceptable report on the removal of Indigenous children from their families. It spent the decade under the constant threat of re-structuring, with legislation in parliament but not passed and key leadership positions unfilled. The Commission needs to be renewed and restored to a central position in Australian national governance as the principal expert on human rights.
Renewal, however, cannot mean simply going back to where it was. Times have changed and the last decade has been too hard for that to be enough. The Commission’s structure, functions, powers and resources need to be comprehensively, independently and publicly reviewed to ensure that it is truly renewed and restored. The review should be undertaken as a matter of urgency. The Commission has operated in uncertainty and it has been marginalised for far too long, given the importance of its work. It should be reviewed and the results of the review implemented this year.
Finally, this is the year to re-engage constructively with the international human rights system. The Howard Government moved Australia into an oppositional role in relation to almost all the major international human rights institutions and initiatives. This first confused and then alienated many traditional allies in positive human rights work that were accustomed to a strong Australian commitment to the international human rights system. Instead, Australia usually found itself in the company of a tiny minority of hostile States, basically the United States and its other dependent territories – Israel, Marshall Islands, Micronesia and Palau. After its national elections in 2005, Canada joined this select group, giving it somewhat greater credibility but no greater legitimacy. It’s time for our declaration of independence.
We can start by supporting new international human rights treaties and declarations that we previously opposed: the treaty on independent inspections of places of detention (the Optional Protocol to the Convention Against Torture); the treaty permitting individual complaints of sex discrimination (the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women); the declaration on the rights of indigenous peoples; and the drafting of a new treaty to provide a system of individual complaints in relation to economic, social and cultural rights. Then we can ratify human rights treaties that we have not yet ratified: the Convention on the Rights of Persons with Disabilities; the Convention on Enforced Disappearances; and the Migrant Workers Convention.
We can engage more positively with the new Human Rights Council, including by issuing a standing invitation to its independent human rights experts, the Special Procedures, to make visits to Australia. We can revive our past practice of good, constructive collaboration with human rights treaty monitoring committees, beginning with a review of all the recommendations of the committees that we have rejected or ignored over the past decade.
The damage done to our international standing has been immense but it can be restored. That should be another priority for 2008.
The agenda I propose is not all that needs to be done, only what I see as the priorities, the absolute minimum, for this first year. It’s the checklist by which I will assess the new Government’s performance at the end of 2008. I hope others will share it.
Chris Sidoti currently chairs the United Kingdom Government's Northern Ireland Bill of Rights Forum. He has previously been the Foundation Director of the Australian Human Rights and Equal Opportunity Commission (1987-1992), Australian Law Reform Commissioner (1992-1995), Australian Human Rights Commissioner (1995-2000), and Director of the International Service for Human Rights (2003-07).