WEBVTT 1 00:00:00.000 --> 00:00:04.580 Hello, my name is Linda Matthews and I'm South Australia's Equal Opportunity Commissioner 2 00:00:04.580 --> 00:00:14.500 and I'd like to welcome everybody who's come along today to hear the 2007 Mitchell Oration. 3 00:00:15.560 --> 00:00:20.700 The Mitchell Oration is held in collaboration between the Equal Opportunity Commission of 4 00:00:20.700 --> 00:00:23.240 South Australia and the Festival of Ideas. 5 00:00:23.620 --> 00:00:29.240 It's named in honour of Dame Roma Mitchell, a pioneering South Australian of international 6 00:00:29.240 --> 00:00:29.980 acclaim. 7 00:00:30.920 --> 00:00:38.740 She was Australia's first female Queen's Counsel in 1962 and the first woman appointed as a 8 00:00:38.740 --> 00:00:41.680 Supreme Court judge in Australia in 1965. 9 00:00:43.100 --> 00:00:47.980 And her long list of achievements, and certainly South Australians will know them, continued 10 00:00:47.980 --> 00:00:49.700 for well over three decades. 11 00:00:50.080 --> 00:00:55.800 And in 1991, she was the first Australian woman ever to be appointed as a Governor again 12 00:00:55.800 --> 00:00:56.980 here in South Australia. 13 00:00:58.100 --> 00:00:58.920 And in 1981. 14 00:00:59.240 --> 00:01:02.320 She was the founding chair of the Australian Human Rights Commission. 15 00:01:03.880 --> 00:01:11.880 She delivered the first Mitchell Oration back in 1989 entitled, Looking Back, Looking Forward. 16 00:01:13.100 --> 00:01:17.760 At this memorable oration, Dame Roma encouraged a progressive but balanced approach. 17 00:01:19.460 --> 00:01:24.660 She asked us not to be daunted by the great amount of work that remained to be done, but 18 00:01:24.660 --> 00:01:29.020 to reflect on the tremendous advances in human rights and equal opportunity. 19 00:01:31.940 --> 00:01:36.940 But she also offered a mayonnaise 20 00:01:58.740 --> 00:02:03.240 in the debate about the proper place of human rights in our system of law and democracy. 21 00:02:05.080 --> 00:02:10.480 How timely it is then to revisit the past and future of human rights in Australia with 22 00:02:10.480 --> 00:02:13.660 today's Mitchell orator, Professor Hilary Charlesworth. 23 00:02:14.620 --> 00:02:21.360 Like Dame Roma, Professor Charlesworth has had a distinguished career with too many achievements 24 00:02:21.360 --> 00:02:25.780 to list and a brief outline will not do justice to her standing. 25 00:02:25.780 --> 00:02:31.440 She is currently Professor of International Law and Human Rights in the Law Faculty at 26 00:02:31.440 --> 00:02:33.840 the Australian National University in Canberra. 27 00:02:34.600 --> 00:02:40.780 She is also a Professor in the Regulatory Institutions Network and Director of the Centre for International 28 00:02:40.780 --> 00:02:43.400 Governance and Justice at ANU. 29 00:02:45.240 --> 00:02:50.560 And I'm confident that Dame Roma would have totally approved of our choice of Hilary to 30 00:02:50.560 --> 00:02:54.840 be today's orator and I'm delighted that she's accepted this invitation. 31 00:02:55.780 --> 00:03:02.020 Could you please join me in welcoming Professor Hilary Charlesworth to deliver the 2007 Mitchell 32 00:03:02.020 --> 00:03:08.020 Oration asking us whether human rights are the future or the past for Australia. 33 00:03:08.260 --> 00:03:08.960 Thank you. 34 00:03:19.620 --> 00:03:20.940 Many thanks, Linda. 35 00:03:21.440 --> 00:03:25.300 I should say, just being here in Elder Hall, one of the things I'm actually proudest of 36 00:03:25.300 --> 00:03:25.760 in my career is that I've been a member of the Australian Government for over a decade. 37 00:03:25.780 --> 00:03:27.700 And I think the most significant thing for me in my entire career is the period that I 38 00:03:27.700 --> 00:03:31.860 spent here at the University of Adelaide Law School in the early 90s. 39 00:03:31.880 --> 00:03:35.940 And I think me and my family have wonderful memories of that time so it's really fantastic 40 00:03:35.940 --> 00:03:36.560 to be back. 41 00:03:37.100 --> 00:03:43.520 Well, I'm really thrilled to have been invited by Linda Mathews and the Adelaide Festival 42 00:03:43.520 --> 00:03:46.860 of Ideas to present this lecture in honour of Dame Roma. 43 00:03:47.520 --> 00:03:53.480 I think Dame Roma for many women in the law, but for people more generally, has been a 44 00:03:53.480 --> 00:03:55.760 truly grand figure on the Australian law scene. 45 00:03:55.760 --> 00:03:58.520 and the South Australian and international stages. 46 00:03:58.680 --> 00:04:02.420 She was a jurist of really great distinction, 47 00:04:02.640 --> 00:04:05.800 but more importantly, a wonderful, wise, warm woman 48 00:04:05.800 --> 00:04:08.320 who took a great interest in the welfare of others. 49 00:04:08.840 --> 00:04:12.780 She had none of the pomposity or self-importance of some public figures, 50 00:04:12.980 --> 00:04:16.100 and she had an ironic, self-deprecating sense of humour. 51 00:04:16.760 --> 00:04:19.820 She was, as many of you will know, a really quite private woman, 52 00:04:19.980 --> 00:04:22.640 sometimes taken aback at the willingness of people 53 00:04:22.640 --> 00:04:24.200 to reveal too much themselves. 54 00:04:24.700 --> 00:04:28.260 She was also a devout Catholic who drew much comfort from her faith 55 00:04:28.260 --> 00:04:31.000 and a keen surfer into her 80s. 56 00:04:31.020 --> 00:04:32.820 So she's my role model in that respect. 57 00:04:33.760 --> 00:04:37.000 You will all know Dame Roma's career highlights, 58 00:04:37.240 --> 00:04:39.520 and Linda has sketched them all, 59 00:04:39.560 --> 00:04:42.720 and I was just reminded that she broke so many barriers for women 60 00:04:42.720 --> 00:04:45.120 that she was known in some quarters as Roma I, 61 00:04:45.900 --> 00:04:48.160 the first woman QC in Australia, 62 00:04:48.380 --> 00:04:50.660 the first woman to be appointed to a state Supreme Court, 63 00:04:50.720 --> 00:04:52.220 the first woman Chancellor of the University, 64 00:04:52.380 --> 00:04:54.080 and the first woman Governor of Australia. 65 00:04:55.520 --> 00:04:59.580 I think when she was appointed to the Human Rights Commission in 1981, 66 00:04:59.780 --> 00:05:03.240 this was a great move because it allowed her talents 67 00:05:03.240 --> 00:05:06.580 to become known on a wider public platform. 68 00:05:07.000 --> 00:05:09.040 And there's a terrific story, which some of you will know, 69 00:05:09.100 --> 00:05:10.680 about her appointment to the Human Rights Commission, 70 00:05:10.880 --> 00:05:14.180 which demonstrates her self-deprecating and quick wit. 71 00:05:15.040 --> 00:05:16.920 Apparently, I've heard on quite good authority, 72 00:05:17.180 --> 00:05:20.480 before the offer of the position of the Chairman was made to Dame Roma, 73 00:05:20.820 --> 00:05:23.760 Senator Durack, who was the then Attorney General, 74 00:05:24.200 --> 00:05:26.480 was suddenly concerned about Dame Roma's age 75 00:05:26.480 --> 00:05:29.020 and whether it prevented her from being appointed 76 00:05:29.020 --> 00:05:30.100 to this statutory position. 77 00:05:30.560 --> 00:05:33.580 So a telegram in those pre-internet days 78 00:05:33.580 --> 00:05:36.440 was sent by the Attorney General's office in Canberra 79 00:05:36.440 --> 00:05:38.800 to Dame Roma's office here in Adelaide, 80 00:05:38.880 --> 00:05:40.720 referring to the arrangements for the position, 81 00:05:40.960 --> 00:05:42.560 and in conclusion it asked, 82 00:05:42.780 --> 00:05:44.020 how old Roma Mitchell? 83 00:05:44.900 --> 00:05:46.980 A telegram was sent by return simply saying, 84 00:05:47.060 --> 00:05:48.760 old Roma, very fine, thank you. 85 00:05:51.800 --> 00:05:53.000 So, unfortunately, 86 00:05:53.220 --> 00:05:53.460 unfortunately, 87 00:05:54.200 --> 00:05:56.120 I don't claim to have known Dame Roma very well personally, 88 00:05:56.300 --> 00:05:59.260 but our brief meetings made a really large impression on me. 89 00:05:59.480 --> 00:06:02.740 The first time I met her was as a rather overawed law student. 90 00:06:03.100 --> 00:06:04.840 I had somehow got caught up 91 00:06:04.840 --> 00:06:07.360 in helping to organise a judicial conference, 92 00:06:07.580 --> 00:06:11.280 and I was detailed to present flowers to the wives of visiting judges, 93 00:06:11.500 --> 00:06:13.800 and the sole woman judge, Dame Roma, 94 00:06:13.980 --> 00:06:15.100 at a judicial conference. 95 00:06:15.420 --> 00:06:17.200 So I remember it was a rather odd thing. 96 00:06:17.280 --> 00:06:19.260 I had to knock on the hotel room doors, 97 00:06:19.500 --> 00:06:21.180 this was in the Sydney Hilton, 98 00:06:21.360 --> 00:06:22.900 and present bouquets to them. 99 00:06:22.960 --> 00:06:24.020 This was considered to be 100 00:06:24.020 --> 00:06:25.540 the right role for a woman law student. 101 00:06:25.920 --> 00:06:27.300 Now, it was quite embarrassing. 102 00:06:27.460 --> 00:06:28.320 I knocked on the doors, 103 00:06:28.380 --> 00:06:30.120 and the judges or their wives would come to the door, 104 00:06:30.180 --> 00:06:32.280 and some were cool, very cool to me. 105 00:06:32.340 --> 00:06:34.400 Some were warm, some were confused, 106 00:06:34.580 --> 00:06:36.420 and one thought I was looking for a tip. 107 00:06:36.720 --> 00:06:39.380 But when I got to Dame Roma's door, 108 00:06:39.440 --> 00:06:41.560 she invited me in, sat me down, 109 00:06:41.700 --> 00:06:44.680 asked who I was, what I did, and what my plans were. 110 00:06:44.860 --> 00:06:47.340 I told her then that I was hoping to give up the law entirely 111 00:06:47.340 --> 00:06:48.960 and become an anthropologist. 112 00:06:49.220 --> 00:06:51.640 And she just said very briskly, well, that's a pity. 113 00:06:51.780 --> 00:06:54.000 We'll never change anything unless more women get involved. 114 00:06:54.020 --> 00:06:54.560 We'll never change anything unless more women get involved in the law. 115 00:06:55.220 --> 00:06:57.960 So a particular admirable quality of Dame Roma 116 00:06:57.960 --> 00:06:59.820 was her willingness to change her ideas. 117 00:07:00.220 --> 00:07:01.860 She was astonishingly successful 118 00:07:01.860 --> 00:07:04.560 in many completely male-dominated worlds. 119 00:07:04.820 --> 00:07:07.800 And sometimes women in this position say 120 00:07:07.800 --> 00:07:09.960 that they've never encountered any form of discrimination, 121 00:07:10.280 --> 00:07:12.400 and they're quite unsympathetic to the idea 122 00:07:12.400 --> 00:07:13.760 that there should be legislation 123 00:07:13.760 --> 00:07:15.480 to protect women against discrimination 124 00:07:15.480 --> 00:07:17.820 or to promote affirmative action. 125 00:07:18.500 --> 00:07:22.120 Dame Roma once said this in an interview with Susan Mitchell. 126 00:07:22.280 --> 00:07:23.520 She said, and I quote from her, 127 00:07:23.600 --> 00:07:24.000 I'm not a woman, I'm a woman. 128 00:07:24.020 --> 00:07:26.760 I always thought that if you quietly infiltrated the system, 129 00:07:26.940 --> 00:07:29.020 then gradually women would just be there 130 00:07:29.020 --> 00:07:30.780 and discrimination would go away. 131 00:07:31.280 --> 00:07:33.680 It became clear to me that this quiet method 132 00:07:33.680 --> 00:07:35.360 was not going to be very effective. 133 00:07:35.680 --> 00:07:37.920 You can't just let things go along. 134 00:07:39.000 --> 00:07:40.900 You've got to do it by affirmative action. 135 00:07:41.260 --> 00:07:42.520 And then she went on to say, 136 00:07:42.680 --> 00:07:45.900 when people go on against affirmative action, 137 00:07:46.080 --> 00:07:48.580 it usually takes the winds out of their sails 138 00:07:48.580 --> 00:07:51.880 when I say, I might have thought that 15 years ago, 139 00:07:51.980 --> 00:07:53.280 but I've moved on. 140 00:07:53.500 --> 00:07:54.000 When I say, I might have thought that 15 years ago, 141 00:07:54.020 --> 00:07:54.620 I might have thought that 15 years ago, 142 00:07:54.640 --> 00:07:57.600 The theme of my talk today is the place of human rights in Australia. 143 00:07:57.900 --> 00:08:00.760 And to tie into the theme of the Adelaide Festival of Ideas, 144 00:08:00.860 --> 00:08:01.900 Which Way to the Future?, 145 00:08:01.900 --> 00:08:04.240 I'm asking whether human rights are the past 146 00:08:04.240 --> 00:08:06.140 or the future for Australia. 147 00:08:06.560 --> 00:08:09.300 So I chose this theme to honour Dame Roma's involvement 148 00:08:09.300 --> 00:08:10.480 in human rights in Australia. 149 00:08:10.680 --> 00:08:14.220 Although she was such a measured, diplomatic and subtle person, 150 00:08:14.380 --> 00:08:17.140 she may not have agreed with all that I'm going to say. 151 00:08:18.060 --> 00:08:21.260 Let's first consider Australia's past in human rights. 152 00:08:21.700 --> 00:08:24.000 It's striking that talk of inclusion of women in Australia, 153 00:08:24.000 --> 00:08:25.120 including human rights in our constitution, 154 00:08:25.520 --> 00:08:28.860 was raised right before Federation, over 100 years ago. 155 00:08:29.600 --> 00:08:32.760 And Inglis Clark, the Tasmanian Attorney General's 156 00:08:32.760 --> 00:08:34.860 preliminary draft of a constitution in 1890, 157 00:08:35.220 --> 00:08:37.600 which influenced the first official draft, 158 00:08:37.920 --> 00:08:39.880 contained a fragmentary Bill of Rights, 159 00:08:40.040 --> 00:08:42.000 drawn from the United States Bill of Rights. 160 00:08:42.120 --> 00:08:44.680 So Inglis Clark proposed that there be a right to a jury trial, 161 00:08:44.940 --> 00:08:47.840 a right to the privileges and immunities of state citizenship, 162 00:08:48.200 --> 00:08:51.180 a right to equal protection under the law and due process, 163 00:08:51.440 --> 00:08:53.980 and a right to freedom of and non-establishment of rights. 164 00:08:53.980 --> 00:08:59.000 Now the inclusion of these rights in Inglis Clark's draft constitution 165 00:08:59.000 --> 00:09:02.520 met with considerable resistance from our founding fathers, 166 00:09:02.760 --> 00:09:06.120 and only some references survived the Constitutional Convention debates 167 00:09:06.120 --> 00:09:08.320 in a relatively watered-down form. 168 00:09:09.200 --> 00:09:13.640 The language of equal protection of the laws and due process 169 00:09:13.640 --> 00:09:15.720 as part of a privileges and immunities clause 170 00:09:15.720 --> 00:09:18.640 were the ones that really provoked considerable hostility. 171 00:09:19.040 --> 00:09:22.940 One reason for this, acknowledged by the drafters of the constitution 172 00:09:22.940 --> 00:09:23.960 in the debate, was that the Constitution was a law 173 00:09:23.960 --> 00:09:24.160 that was not in line with the laws of the United States. 174 00:09:24.420 --> 00:09:27.760 The reason why they didn't want equal protection of the laws 175 00:09:27.760 --> 00:09:31.460 in the Constitution was because such provisions could invalidate 176 00:09:31.460 --> 00:09:33.820 colonial mining and factory legislation, 177 00:09:34.220 --> 00:09:38.200 particularly that which discriminated against non-European workers. 178 00:09:38.620 --> 00:09:41.480 So the non-inclusion of equal protection in our constitution 179 00:09:41.480 --> 00:09:46.240 all those years ago was explicitly to keep Australia white 180 00:09:46.240 --> 00:09:50.240 and to preclude the colonial legislation from being overridden. 181 00:09:50.240 --> 00:09:53.980 Now we have to then leapfrog many decades, 182 00:09:54.320 --> 00:09:57.340 because there was very little attention to issues of rights 183 00:09:57.340 --> 00:10:02.960 really until the 1970s, and these arose in the context of debates 184 00:10:02.960 --> 00:10:05.740 over whether Australia should have a national Bill of Rights. 185 00:10:06.220 --> 00:10:11.120 Now some of you will recall in 1973 the then Attorney General Lionel Murphy 186 00:10:11.120 --> 00:10:14.400 introduced a human rights bill into the Australian Parliament, 187 00:10:14.640 --> 00:10:19.300 and this he regarded as a precursor to constitutional change. 188 00:10:19.300 --> 00:10:23.660 So he really modelled that human rights bill on the International Covenant 189 00:10:23.660 --> 00:10:26.160 on Civil and Political Rights, a major human rights treaty, 190 00:10:26.380 --> 00:10:29.560 and it was going to bind both state and federal governments. 191 00:10:29.880 --> 00:10:33.460 But the bill drew a storm of protest, particularly from 192 00:10:33.460 --> 00:10:37.880 Jobe Opie Peterson, the then Premier of Queensland, 193 00:10:38.220 --> 00:10:41.740 who led a very successful campaign against Lionel Murphy's bill 194 00:10:41.740 --> 00:10:46.560 on the grounds that protecting human rights would reduce states' rights 195 00:10:46.560 --> 00:10:48.880 to treat their population as they chose. 196 00:10:48.940 --> 00:10:49.280 It also led to a lot of debate about the role of human rights 197 00:10:49.300 --> 00:10:51.700 in the national system, and it also wasn't very particularly popular 198 00:10:52.300 --> 00:10:53.880 within the Labour Party. 199 00:10:54.160 --> 00:10:57.460 So then we go forward another decade to the 1980s, 200 00:10:57.460 --> 00:11:02.180 when Gareth Evans as Attorney General again tried to introduce a Bill of Rights. 201 00:11:02.320 --> 00:11:06.840 And this really was quite a watered-down version of the Murphy Bill, 202 00:11:07.020 --> 00:11:13.220 but it too was very roundly attacked, not least again by another very powerful 203 00:11:13.220 --> 00:11:18.720 state premier, Brian Burke of WA, and in the end, again on the grounds, 204 00:11:18.720 --> 00:11:21.760 the interesting grounds that it would reduce states' rights. 205 00:11:22.180 --> 00:11:26.340 But this was very successful in those days, in that the draft in the end 206 00:11:26.340 --> 00:11:27.680 wasn't introduced into Parliament. 207 00:11:28.080 --> 00:11:34.580 A couple of years later, Lionel Bowen, as Attorney General, 208 00:11:34.680 --> 00:11:37.220 introduced yet a third version of the Bill of Rights, 209 00:11:37.380 --> 00:11:40.360 and each time they were introduced, they were getting narrower and narrower. 210 00:11:40.620 --> 00:11:45.420 And Lionel Bowen's bill applied, first of all, not to the states at all, 211 00:11:45.520 --> 00:11:46.840 it only applied to federal laws. 212 00:11:46.840 --> 00:11:50.420 And it was an extremely modest piece of legislation. 213 00:11:50.860 --> 00:11:55.360 But even despite that, the fact that it didn't attract the states' rights charge, 214 00:11:55.540 --> 00:11:57.880 it was allowed to lapse. 215 00:11:58.040 --> 00:12:01.020 It was intensely unpopular within the Labour Party, 216 00:12:01.200 --> 00:12:05.360 and also it met a lot of opposition from the Conservative parties. 217 00:12:05.700 --> 00:12:11.380 And then finally, this rather sorry tale of attempts to change our laws nationally 218 00:12:11.380 --> 00:12:12.500 was in 1988. 219 00:12:12.700 --> 00:12:16.820 There was a very modest proposal to extend the existing shadowy rights law 220 00:12:16.840 --> 00:12:18.600 to the Australian states. 221 00:12:18.600 --> 00:12:23.360 And the aim of that amendment to the constitution 222 00:12:23.360 --> 00:12:26.400 was to extend those provisions to the Australian states. 223 00:12:26.640 --> 00:12:29.780 But again, that was really roundly defeated at a referendum. 224 00:12:30.000 --> 00:12:31.640 And some of you may recall that's the referendum 225 00:12:31.640 --> 00:12:35.320 in which Peter Reith made his really political reputation 226 00:12:35.840 --> 00:12:40.140 by leading the charge against those extensions of rights protections. 227 00:12:40.620 --> 00:12:44.440 Well, one of the many reasons, apart from the states' rights argument, 228 00:12:44.540 --> 00:12:46.520 one of the many reasons why all this talk 229 00:12:46.840 --> 00:12:48.360 about possible change in Australia, 230 00:12:48.540 --> 00:12:50.200 why it's been so unpopular, 231 00:12:50.360 --> 00:12:53.520 is because the argument goes this is going to be antithetical 232 00:12:53.520 --> 00:12:56.800 to Australian democracy as we love and know it. 233 00:12:56.960 --> 00:13:01.560 The idea is that parliamentary sovereignty inherited from the United Kingdom 234 00:13:01.560 --> 00:13:03.800 and our tradition of responsible government, 235 00:13:04.020 --> 00:13:07.940 which is of course the convention that the executive branch of government 236 00:13:07.940 --> 00:13:11.240 is kept in check by being answerable to the elected legislature, 237 00:13:11.580 --> 00:13:16.040 it's said those conventions are adequate to protect individual rights. 238 00:13:16.040 --> 00:13:19.500 Now this was said by Sir Robert Menzies in the 50s, 239 00:13:19.540 --> 00:13:22.660 it was said by one of the most famous of Australia's 240 00:13:22.660 --> 00:13:24.680 Chief Justices of the High Court, Sir Owen Dixon, 241 00:13:24.860 --> 00:13:27.040 and this argument still has a lot of weight. 242 00:13:27.140 --> 00:13:30.980 For example, Bob Carr, now the former Premier of New South Wales, 243 00:13:31.100 --> 00:13:32.600 has constantly made that argument. 244 00:13:32.840 --> 00:13:35.140 And I'll just quote a little bit of a statement he made 245 00:13:35.140 --> 00:13:37.620 which sums up that argument that bills of rights 246 00:13:37.620 --> 00:13:39.800 are antithetical to Australian democracy. 247 00:13:40.540 --> 00:13:42.640 Here's what Bob Carr said. 248 00:13:43.560 --> 00:13:45.180 Parliaments are elected to make laws. 249 00:13:45.180 --> 00:13:49.240 In doing so, they make judgments about how the rights and interests 250 00:13:49.240 --> 00:13:50.480 of the public should be balanced. 251 00:13:50.840 --> 00:13:54.300 If the decision is unacceptable, the community can make its views 252 00:13:54.300 --> 00:13:55.460 known at regular elections. 253 00:13:55.940 --> 00:13:57.580 This is our political tradition. 254 00:13:58.100 --> 00:14:01.220 A bill of rights, he said, would pose a fundamental shift 255 00:14:01.220 --> 00:14:04.500 in that tradition, with the parliament abdicating its important 256 00:14:04.500 --> 00:14:06.760 policy-making functions to the judiciary. 257 00:14:07.260 --> 00:14:10.800 A bill of rights, said Bob Carr, is an admission of the failure 258 00:14:10.800 --> 00:14:14.420 of parliaments, governments and the people to behave in a reasonable, 259 00:14:14.420 --> 00:14:16.540 responsible and respectful manner. 260 00:14:16.720 --> 00:14:19.420 I do not believe we have failed, he said. 261 00:14:19.940 --> 00:14:25.360 So too, Prime Minister Hard has said, and his term is robust 262 00:14:25.360 --> 00:14:28.880 parliamentary debate, is the best protector of human rights. 263 00:14:29.660 --> 00:14:32.460 But it seems to me that this very rosy view of Australian 264 00:14:32.460 --> 00:14:36.260 parliamentary practice has very little evidence to support it. 265 00:14:36.760 --> 00:14:39.360 Faith that elected parliaments will always be vigilant 266 00:14:39.360 --> 00:14:42.740 on human rights issues is simply not borne out in practice. 267 00:14:43.200 --> 00:14:44.400 Indeed, often, the people who are elected to parliament 268 00:14:44.420 --> 00:14:46.800 are often the major political parties are in total agreement 269 00:14:46.800 --> 00:14:49.380 on the groups whose freedom needs to be restricted. 270 00:14:49.920 --> 00:14:53.460 For example, Australian legislatures, state and federal, 271 00:14:53.580 --> 00:14:56.940 have enacted laws that allow mandatory sentencing of children, 272 00:14:57.220 --> 00:15:00.260 laws that effectively discriminate against applicants for refugee 273 00:15:00.260 --> 00:15:03.340 status on the basis of race, laws that allow indefinite 274 00:15:03.340 --> 00:15:07.720 detention of asylum seekers, law that cut away civil liberties 275 00:15:07.720 --> 00:15:09.700 in the name of protecting us from terrorism. 276 00:15:10.160 --> 00:15:13.320 Just these very few examples illustrate some of the problems 277 00:15:13.320 --> 00:15:15.660 in our legal system in protecting human rights. 278 00:15:16.040 --> 00:15:19.420 Because there are very few limits on legislative power in Australia, 279 00:15:19.720 --> 00:15:23.040 it's perfectly possible for our democratically elected representatives 280 00:15:23.040 --> 00:15:26.300 to act in breach of human rights without effective scrutiny. 281 00:15:27.440 --> 00:15:30.360 Minorities are most at risk in terms of human rights breaches, 282 00:15:30.600 --> 00:15:34.800 and for this reason, legislatures are unlikely to be held accountable 283 00:15:34.800 --> 00:15:36.920 for human rights violations at the ballot box. 284 00:15:37.160 --> 00:15:40.440 And we discussed some of those issues at one of the sessions here yesterday 285 00:15:40.440 --> 00:15:43.100 about why Australians haven't been more 286 00:15:44.260 --> 00:15:48.660 distressed about the violation of human rights of asylum seekers in Australia. 287 00:15:49.500 --> 00:15:53.320 But what's really striking, in contrast to our pretty poor domestic record, 288 00:15:53.420 --> 00:15:55.680 Australia has always been a really keen participant 289 00:15:56.320 --> 00:15:58.460 in the international human rights system. 290 00:15:58.900 --> 00:16:03.200 So we are a party to most of the major United Nations human rights treaties, 291 00:16:03.500 --> 00:16:06.880 the two major covenants on human rights, the Civil and Political Covenant 292 00:16:06.880 --> 00:16:08.980 and the Economic, Social and Cultural Covenant. 293 00:16:09.540 --> 00:16:13.120 We're a party to some of the treaties that deal with specific 294 00:16:13.320 --> 00:16:15.900 human rights abuses, such as the Genocide Convention, 295 00:16:16.280 --> 00:16:18.560 the Convention on the Elimination of Racial Discrimination, 296 00:16:18.840 --> 00:16:23.000 and we're also a party to treaties that deal with particular groups, 297 00:16:23.180 --> 00:16:27.120 such as the Convention on the Elimination of all Forms of Discrimination Against Women 298 00:16:27.120 --> 00:16:29.200 and the Convention on the Rights of the Child. 299 00:16:29.500 --> 00:16:32.400 And just earlier this year, our government announced that Australia 300 00:16:32.400 --> 00:16:37.060 will become a party to the Convention on the Protection of People with Disabilities. 301 00:16:38.280 --> 00:16:41.720 But what's striking, although we're very good on the international stage, 302 00:16:41.720 --> 00:16:46.960 is that a wealthy country like Australia, with our long democratic tradition, 303 00:16:47.220 --> 00:16:52.760 has never managed to implement fully any of our international human rights commitments. 304 00:16:53.140 --> 00:16:56.860 So in other words, we seem to be able to inform the international community, 305 00:16:57.080 --> 00:16:59.320 we're completely committed to these treaties, 306 00:16:59.520 --> 00:17:01.980 but when it comes to translating them to domestic law, 307 00:17:02.120 --> 00:17:06.500 we've been really very slow to fulfil those promises. 308 00:17:07.060 --> 00:17:10.820 Just take one of the international treaties, for example, 309 00:17:10.820 --> 00:17:13.520 the International Covenant on Civil and Political Rights, 310 00:17:13.740 --> 00:17:17.000 which we became a party to in 1980. 311 00:17:17.440 --> 00:17:20.320 So the Civil and Political Covenant sets out a range of rights, 312 00:17:20.400 --> 00:17:24.460 from the right of self-determination, to the right to be free from torture, 313 00:17:24.660 --> 00:17:27.800 right to freedom of speech, to rights of minorities, 314 00:17:27.940 --> 00:17:31.260 the preservation of their culture, to the right of privacy and non-discrimination. 315 00:17:31.820 --> 00:17:34.840 And we have committed ourselves, under Article 2 of that treaty, 316 00:17:34.980 --> 00:17:38.960 to take the necessary steps to give effect to all the rights recognised in that treaty. 317 00:17:39.320 --> 00:17:40.800 But no Australian government, 318 00:17:40.820 --> 00:17:44.760 Labour or Liberal, has ever taken that obligation in Article 2 seriously. 319 00:17:45.220 --> 00:17:50.020 The best that we've come up with is the creation of Dame Roma's Human Rights Commission, 320 00:17:50.320 --> 00:17:53.740 and its successor, the Human Rights and Equal Opportunity Commission. 321 00:17:54.220 --> 00:18:00.500 Now although the covenant is appended to the Human Rights and Equal Opportunity Commission's legislation, 322 00:18:00.980 --> 00:18:04.000 its rights cannot be directly enforced in Australian law. 323 00:18:04.400 --> 00:18:07.940 The Human Rights and Equal Opportunity Commission only has the power 324 00:18:07.940 --> 00:18:10.320 to advise the government on any violations of rights. 325 00:18:10.320 --> 00:18:15.360 Advice which governments have ignored far more often than not. 326 00:18:15.540 --> 00:18:19.020 I think the Human Rights Commission does a wonderful job of raising consciousness, 327 00:18:19.300 --> 00:18:23.620 but the point is it is unable to directly enforce the rights contained in that covenant. 328 00:18:23.960 --> 00:18:26.900 Now we've done better with respect to our international treaty commitments, 329 00:18:27.160 --> 00:18:29.220 specifically on race and sex discrimination. 330 00:18:29.540 --> 00:18:32.940 We have federal legislation implementing both those treaties. 331 00:18:33.260 --> 00:18:35.800 However, even though there is such legislation, 332 00:18:36.120 --> 00:18:38.160 there are significant gaps in their implementation. 333 00:18:38.700 --> 00:18:40.300 So the United Nations Commission, 334 00:18:40.300 --> 00:18:43.340 and the United Nations treaty bodies that oversee the implementation of these treaties, 335 00:18:43.520 --> 00:18:50.440 have generally criticised Australia for not completely fulfilling their promises under those two treaties. 336 00:18:50.720 --> 00:18:54.920 For example, the UN Committee on Racial Discrimination has stated that 337 00:18:54.920 --> 00:19:00.580 Australia's native title regime is inconsistent with our obligations under the Race Discrimination Convention. 338 00:19:01.040 --> 00:19:06.060 And the sex discrimination laws at the federal level have built into it many exemptions 339 00:19:06.060 --> 00:19:10.160 that compromise our commitment to non-discrimination on the basis of sex. 340 00:19:10.300 --> 00:19:15.320 For example, we don't have full non-discrimination on the basis of sex 341 00:19:15.320 --> 00:19:18.020 with respect to equal pay, maternity leave, 342 00:19:18.280 --> 00:19:23.680 with respect to access to private clubs, religious institutions and the armed forces. 343 00:19:24.320 --> 00:19:26.260 Now that's where we've done pretty well, 344 00:19:26.440 --> 00:19:27.920 but at the other end of the spectrum, 345 00:19:28.100 --> 00:19:30.820 particularly with respect to the Convention on the Rights of the Child, 346 00:19:31.060 --> 00:19:35.140 Australia has taken no steps at all to implement its treaty obligations. 347 00:19:35.720 --> 00:19:39.760 We've left implementation as a country entirely up to the discretion of the states, 348 00:19:39.760 --> 00:19:43.960 and allowed clear violations of the treaty to go uncurbed. 349 00:19:44.680 --> 00:19:48.260 The International Human Rights Treaties are mainly used by Australian governments 350 00:19:48.260 --> 00:19:49.840 to criticise other countries, 351 00:19:50.060 --> 00:19:54.340 while we feel relaxed and comfortable in the knowledge that they're not about us. 352 00:19:54.740 --> 00:19:59.500 So I think it's fair to say that human rights have not been a large part of Australia's past. 353 00:20:00.060 --> 00:20:02.340 I must say that over the last week or so, 354 00:20:02.440 --> 00:20:04.640 I've been really struck by references to human rights 355 00:20:04.640 --> 00:20:08.360 in the current debate about the Commonwealth intervention in the Northern Territory. 356 00:20:08.360 --> 00:20:12.780 Some commentators, particularly the Australian newspaper and its editorialists, 357 00:20:12.840 --> 00:20:15.320 have blamed what they call a rights culture 358 00:20:15.320 --> 00:20:18.160 for the dysfunction of many Indigenous communities. 359 00:20:19.120 --> 00:20:21.020 I've found this really hard to understand, 360 00:20:21.260 --> 00:20:25.240 because questions of human rights have had so little impact in Australia's past, 361 00:20:25.380 --> 00:20:30.580 and particularly little impact in our dealings with our Indigenous people. 362 00:20:31.020 --> 00:20:36.300 It's also hard to understand because the government is now using the rhetoric of children's rights 363 00:20:36.300 --> 00:20:38.260 very prominently in the debate, 364 00:20:38.360 --> 00:20:43.320 although it's not possible to tell, as far as we can see, 365 00:20:43.440 --> 00:20:47.340 what role children's rights, as understood in the Convention on the Rights of the Child, 366 00:20:47.400 --> 00:20:49.780 will play in the implementation of this plan. 367 00:20:50.560 --> 00:20:53.360 Well, what of the role of human rights in Australia's future? 368 00:20:53.540 --> 00:20:56.700 So I'm going to be a bit more positive. I've been very negative about our past. 369 00:20:57.320 --> 00:20:59.140 I think that over the next decade, 370 00:20:59.240 --> 00:21:02.940 we will see much greater interest in protecting human rights domestically. 371 00:21:03.140 --> 00:21:06.240 Very slowly, and I concede sporadically, 372 00:21:06.420 --> 00:21:08.340 we're seeing a thawing of the agenda, 373 00:21:08.360 --> 00:21:11.200 and we're seeing a growing antipathy to domestic protection of human rights. 374 00:21:11.640 --> 00:21:14.640 Now, one element of this, perhaps ironically, I think, 375 00:21:14.660 --> 00:21:18.240 is in the context of legislation that's deeply abusive of human rights, 376 00:21:18.360 --> 00:21:21.800 the context of our anti-terror laws, the federal anti-terror laws, 377 00:21:21.960 --> 00:21:25.200 which have been drafted with so little concern for human rights. 378 00:21:25.460 --> 00:21:29.440 For example, the 2005 amendments to the Criminal Code 379 00:21:29.440 --> 00:21:31.240 contain a number of mechanisms, 380 00:21:31.380 --> 00:21:34.260 such as preventative detention, control orders, 381 00:21:34.420 --> 00:21:36.540 and broad definitions of seditious behaviour 382 00:21:36.540 --> 00:21:38.040 that clearly violate 383 00:21:38.040 --> 00:21:38.340 the laws of the United States. 384 00:21:38.360 --> 00:21:38.580 So I think that we need to be more careful 385 00:21:38.580 --> 00:21:39.620 about what we're doing in terms of the international human rights standards, 386 00:21:39.820 --> 00:21:42.380 particularly the right not to be arbitrarily detained, 387 00:21:42.780 --> 00:21:44.080 the right to a fair trial, 388 00:21:44.260 --> 00:21:45.760 and the right to freedom of speech, 389 00:21:45.920 --> 00:21:47.660 all rights that we've committed to internationally. 390 00:21:48.500 --> 00:21:51.720 Now, what's striking is that the extremity of those laws 391 00:21:51.720 --> 00:21:54.560 has actually prompted even quite conservative groups 392 00:21:54.560 --> 00:21:57.500 to come out and say that there is a need then 393 00:21:57.500 --> 00:21:59.960 for some statement of human rights to balance these laws. 394 00:22:00.140 --> 00:22:03.120 So I'm struck by the fact that even the Law Council of Australia, 395 00:22:03.340 --> 00:22:05.400 not a group that's known to be at the forefront 396 00:22:05.400 --> 00:22:07.140 of social justice issues, 397 00:22:08.360 --> 00:22:09.460 has been very strongly against the breaches 398 00:22:09.460 --> 00:22:10.400 of human rights involved. 399 00:22:10.880 --> 00:22:13.640 And indeed, even a Liberal Party backbencher, 400 00:22:13.740 --> 00:22:15.420 Stephen Chobo of Queensland, 401 00:22:15.760 --> 00:22:18.340