This piece was first published by the ABC's The Drum. Just over a decade ago the MV Tampa sailed into Australian waters. It was carrying 433 rescued asylum seekers, mainly Afghan Hazaras fleeing the oppressive Taliban. As the Tampa neared Australia, it was commandeered by Australian special forces, an act described by one expert as tantamount to piracy.
I was, at that time, working with the Public Interest Law Clearing House. PILCH was called upon to coordinate a legal team to free the asylum seekers and compel their release into Australia.
Although successful at first instance, we lost the case on appeal and the asylum seekers were transferred to Nauru. It was a devastating loss, spawning the first Pacific Solution. The loss did, however, have a thin silver lining: mobilising a pro bono legal movement for refugee rights that continues to stand for the rule of law and against the arbitrary exercise of power to this day.
This Human Rights Day, eleven years on from the Tampa, I want to share some personal reflections on the human rights movement's wins, losses and lessons from the last decade.
Over the last decade, the movement has been successful in strengthening the legal recognition of human rights - an important factor contributing to the practical realisation of rights on the ground. Although Australia remains the only developed democracy without a national human rights act, both Victoria and the ACT have enacted Charters of Rights while, in a series of decisions including Roach and Rowe, the High Court has strengthened constitutional protection of certain democratic rights. Nicola Roxon's draft Human Rights and Anti-Discrimination Bill 2012 will, if enacted, make anti-discrimination laws more effective, accessible and efficient.
The movement has also been victorious in re-framing certain issues within a human rights framework. This framework focuses on empowering marginalised and disadvantaged groups and holding governments and other duty bearers accountable for their human rights obligations. The Federal Government's commitment to halve homelessness by 2020, for example, can be directly traced to the homelessness sector's success in re-framing homelessness as a human rights rather than a welfare issue. This re-framing was given added salience by the UN Special Rapporteur on Adequate Housing, when he visited Australia in 2006.
The impact of the UN Special Rapporteur, whose recommendations featured prominently in the Government's White Paper on Homelessness, point to another victory for the human rights movement over the last decade, namely revitalising Australia's commitment to the United Nations. The Federal Government's commitment to use its UN Security Council seat to be a "principled advocate of human rights for all" shows we have come a long way from the position 10 years ago, when Attorney-General Darryl Williams's said that the UN human rights system lacked credibility and that critiques of our human rights record were "an insult to Australia".
This third victory, however, leads me to the first major loss; our movement's failure to ensure that Australia's rhetorical commitment to international human rights translates to real implementation on the ground. This disconnect is most apparent in Australia's track record in failing to respect and implement decisions of the UN's human rights umpires - independent, expert bodies such as the Committee against Torture.
While most complaints against Australia are rejected or determined in the Government's favour, it is alarming that, in the relatively small number of cases where Australia is found to have breached international law, we are increasingly refusing to play by the rules. In fact, recent analysis suggests that Australia has refused to implement the authoritative decisions of UN human rights bodies in over 95 per cent of cases over the last decade.
The movement's second failure has been our inability to achieve any real progress in the advancement of Indigenous rights over the last decade. Although the establishment of the National Congress of Australia's First Peoples is welcome, the right of Aboriginal and Torres Strait Islander peoples to participate in the design of policies and the making of decisions that affect them has been set back inestimably by the imposition and continuation of the Northern Territory Intervention. The success of a referendum to recognise Aboriginal and Torres Strait Islander peoples in the constitution, and to enshrine the right to non-discrimination on the grounds of race, is key to future progress in this area.
Our third failure relates to Australia's use and conditions of detention. Over the last decade, the bipartisan policy of prolonged, mandatory and indefinite immigration detention has been given constitutional imprimatur by the High Court, with people now warehoused in tents in Papua New Guinea and Nauru.
Meanwhile, Aboriginal and Torres Strait Islander peoples are incarcerated at over 15 times the rate of non-Indigenous adults, with Aboriginal and Torres Strait Islander children almost 24 times more likely to be in detention. The ratification and implementation of the Optional Protocol to the Convention against Torture, an international treaty which requires independent monitoring and inspections of all places of detention, should be an urgent priority for national, state and territory governments.
So what can we learn from these human rights victories and failures?
First, human rights reform is slow, incremental and opportunistic. We may have history on our side, but progress in the achievement of human rights is never inevitable and the prevention of regress requires, to borrow Thomas Jefferson's words, our eternal vigilance.
Second, advances in human rights often require the disruption of existing hierarchies and power structures. It is apt to recall that the Murdoch press and the Catholic Church (each now mired in their own ethical controversies) were the most vociferous opponents of a national Human Rights Act. The current campaign to modernise and strengthen anti-discrimination laws must be alive and responsive to these oppositional forces.
Third, although human rights values resonate deeply with people, principled leadership is often required to galvanise public support for rights. It is instructive to contrast the Federal Government's failure of leadership on a national Human Rights Act with the principled leadership demonstrated through the Apology to the Stolen Generations. Opponents to an Apology warned that it would be contentious and divisive, words adopted by the Government itself when squibbing on a Human Rights Act. Yet support for the Apology rose from 55 per cent to almost 80 per cent within a week of Kevin Rudd's historic speech. Imagine the level of support that marriage equality would garner (it already sits at around 65 per cent) with principled political leadership. The human rights movement needs and deserves better and bolder leaders.
Finally, we don't tend to celebrate human rights victories to the extent that we should. In some cases this is because we expend so much energy in the campaign, while in others it is because the pragmatic victory we achieve is not the transformational victory for which we hoped.
As a movement, I believe we should celebrate and share our victories more widely. Happy Human Rights Day.
Phil Lynch is Executive Director of the Human Rights Law Centre and will take up a position as Director of the International Service for Human Rights in Geneva in 2013. Follow him on Twitter @PhilALynch. View his full profile here.