It’s not often you see negative and positive human rights being debated in the mainstream media, but that’s been the result of Attorney-General George Brandis appointment of former IPA policy director Tim Wilson as the new human rights commissioner.
Human rights have been placed at the forefront of public debate. This presents a number of opportunities for progress over the coming year, but also challenges to ensure that rhetoric on rights is matched by action.
Traditional freedoms audit
In December, Brandis delivered on his promise to ask the Australian Law Reform Commission to undertake an audit to identify Federal laws that encroach on “traditional rights, freedoms and privileges” and assess whether the encroachment is justified.
At first glance, the ALRC’s inquiry will provide welcome scrutiny of legislation that undermines rights. However, the focus on corporate and environmental regulation and workplace laws, opens the audit up to criticism that it is an exercise in corporate deregulation.
The audit’s credibility is further undermined by what’s missing from the list of “traditional rights, freedoms and privileges” that the ALRC can take into account. Freedom from arbitrary detention (the right not be locked up unfairly), perhaps our most fundamental freedom, has been left out. Privacy and non-discrimination rights also don’t get a mention.
Despite these restrictions, the ALRC might still deliver important recommendations on areas like counter-terror and migration laws, but Brandis’ recent statements that he wouldn’t scale back counter-terror laws leave little hope for impact here.
Access to justice
On access to justice, there’s likely to be a similar deficit between words and actions.
In Opposition, Brandis delivered strong, informed critiques of the state of access to justice in Australia. He recognised that access to justice is ''a basic human right'' that is fundamental to equality before the law and the rule of law. He attacked the former Government’s record on addressing the cost of access to justice as ''truly lamentable''. He highlighted the inadequate funding of legal aid and community legal centre funding and described the difficulty Australians faced in going to court to protect their legal rights as “a social crisis in the making.”
In government, Brandis’ response to this social crisis has been to announce cuts of $42 million in funding to the organisations that help people who can’t afford a lawyer; Indigenous legal services, community legal centres and legal aid commissions. Before the election Brandis had already announced that funding for legal help for asylum seekers would also be slashed.
Recently released figures confirm the Federal Government spends around twice as much on its own legal services, as it does on legal assistance services for Australians who can’t afford a lawyer. A better approach would be to abandon the legal assistance cuts and redirect some of this spending to improve access to justice.
Free speech issues will continue to be contested this year. Brandis, Wilson and others have argued for the winding back or total repeal of Federal race hate speech laws that make it unlawful to say something that is reasonably likely to "offend, insult, humiliate or intimidate" another person or group because of their race. These are the laws that Andrew Bolt breached by writing articles that falsely suggested that a group of successful light-skinned Aboriginals were pretending to be Aboriginal to obtain various benefits.
Ethnic communities, human rights and legal organisations have called on the government to maintain strong and effective laws against hate speech in line with Australia’s international human rights obligations to prohibit "any advocacy of racial hatred that incites discrimination, hostility or violence".
It seems Brandis is listening. Initial statements about repealing the laws have moderated and he now seems set to introduce a criminal provision outlawing incitement to racial hatred, while replacing “offend” and “insult” in the civil provision with alternative wording.
A more pressing free speech concern is the latest anti-protest laws in Queensland and Victoria.
Following on from the 2008 NSW laws that created $5500 fines for “annoying” people at the Pope’s visit, the Queensland Parliament has passed laws banning people from “disrupting” the upcoming G20 meeting.
Under the laws, people can be arrested and detained with a presumption against bail for “disrupting” any part of the G20. Police powers are also triggered in a situation where they believe a person has, or is likely to, “disrupt” the G20.
Police can seize an item if an officer reasonably suspects the person could use it to disrupt any part of the G20, even if a person is able to give a lawful excuse for having it.
The G20 laws introduced a raft of other excessive measures likely to stifle legitimate protest and potentially catch passers-by at the November meeting.
Meanwhile, Victoria has introduced new laws into Parliament that expand police move on powers while at the same time winding back the existing free speech safeguards around the use of move on powers in protest situations.
Somehow the raft of criminal laws banning obstruction, breach of peace, trespass, property damage, offensive behavior and more, were deemed insufficient for police to deal with protest situations.
If the new laws are passed, individual police officers will be able to order someone to move on from a protest on six different grounds, including if an officer reasonably suspects the person is impeding someone from entering or exiting premises, or that they have committed an offence in a public place (such as jaywalking) in the last 12 hours, regardless of whether or not there is any connection between the offence and ongoing problematic behavior.
Such a broad discretion carries serious risk of the powers being arbitrarily applied or misused. Failure to comply with an order carries a possible fine of more than $700.
On a positive note, Prime Minister Tony Abbott has shown strong leadership on the push for a referendum to recognise Aboriginal and Torres Strait Islander peoples in the Constitution. With multi-party support behind the issue, the referendum stands a very good chance of success when it is put to Australians.
The goodwill on recognition and Abbott’s broader interest and positive statements on Indigenous affairs needs to translate into concrete measures to address Aboriginal disadvantage, particularly given the mixed progress to date on the Closing the Gap targets.
Marriage Equality & LGBTI rights
The movement for marriage equality continues to gain momemtum. The High Court’s decision in December, while striking down the ACT same sex marriage laws, resoundingly confirmed the Federal Government’s power to legislate for marriage equality.
Canberra insiders expect that Australia will join New Zealand, Britain, 18 US states, Brazil and many others in achieving marriage equality before the end of the Coalition Government’s first term. The Human Rights Law Centre will continue to provide legal support to Australian Marriage Equality to secure these reforms.
In March, the High Court will also feature in the push for proper legal recognition of transgender and intersex Australians, as it hears an appeal by the NSW Government against a decision allowing people who identify as neither male nor female to be legally recognised in identity documents. The HRLC is representing the A Gender Agenda, an organisation that represents gender diverse and intersex people, in the case.
The HRLC will also be working in other states to replicate our success in Victoria campaigning for the expungement of old criminal records for consensual gay sex.
Australian foreign policy
Australian foreign policy on human rights will face a number of tests over the year.
Australia has played an important and principled role in the Security Council to date, but our international leadership on human rights has been compromised where it intersects with the Government policy around stopping asylum seeker boats.
Australia needs to speak out strongly on the collapse of the rule of law in Nauru. We need to play a leading role in supporting an upcoming UN Human Rights Council resolution calling for a proper investigation into evidence of war crimes at the end of the war against the Tamil Tigers. We need to ensure a more honest, forthright engagement on human rights with Indonesia and its new leadership following the July presidential election.
Asylum seekers, disability and more
The outlook for the coming year on asylum seekers is bleak, highlighting the importance of legal measures and advocacy to challenge the continued violations of rights.
The ALRC’s inquiry into legal barriers for people with disability is due to report in August and promises to recommend a range of reforms to improve the implementation of the UN Convention on the Rights of Persons with Disabilities into Australian law.
Overall, the mixed human rights landscape for the year ahead confirms the vital importance of effective and principled human rights advocacy to challenge the worst aspects of regressive policy and seize the genuine opportunities for advancement.
Hugh de Kretser is the Executive Director of the Human Rights Law Centre. You can follow him on Twitter @hughdekretser