Positive Life NSW

Douglas Barry reports on the implications of a recent report on human rights in Australia and why we should take an interest in its findings.

In December 2008 the Australian Government had asked the National Human Rights Consultation Committee to conduct a nationwide consultation. Its terms of reference were to find out which human rights and responsibilities should be protected and promoted in Australia, whether they are sufficiently protected and promoted, and how Australia could better protect and promote human rights.

The Committee received 35,014 written responses – the largest number ever for a national consultation in Australia. In addition, about 6,000 people registered to attend the 66 community roundtables, which were held in 52 locations around Australia. On 30 September 2009, the Committee handed its report to the Federal Attorney-General.1

The report notes there are existing legislative protections of human rights including Federal and state anti-discrimination laws. However, the Committee found these are difficult to understand and apply, and can be amended or suspended, as in the case of the Northern Territory intervention. What’s more, it notes there are inconsistencies between those laws. Who knows of any positive person who has successfully used the existing laws to remedy HIV-discrimination?

From the consultations, it is clear that the Australian community wants the public sector, with all its agencies and departments, to consider human rights in its policies, practices and decision-making. The creation of a human rights culture in the public sector would certainly improve the collaboration between government and NGOs, such as Positive Life, that work in the human rights area.

Do human rights matter for positive people?

Sydney disability consultant Phillip French participated in the negotiation of the UN Convention on the Rights of Persons with Disabilities2, representing several Australian NGOs. Phillip argues that:

“Human rights express fundamental or normative values but their application, particularly with respect to minorities, including positive people, will inevitably challenge existing power relations. 'Soft' options that would seek to promote greater recognition and respect for human rights through education, awareness raising and public sector policy development may assist in altering power relations over time and in some instances.

“However, in the absence of the incorporation of human rights into hard law there is no guarantee that this will be the case. If human rights are to be real for minorities they must be capable of being enforced against the status quo. For this and other reasons Australia requires a legislative charter of human rights, and one that provides for individual remedies when these rights are violated.”

In other words, it’s no good having the human rights of positive people recognised unless they are legally acknowledged at every level of government and enforced in our courts. Without a legal remedy for a breach of our rights, they become little more than nice-sounding ideas. As individuals, we can advocate for public services that respect our rights and have the courts decide whether those rights have been breached.

A Human Rights Act

The report recommends that the Australian Parliament pass a human rights act. Such an act or charter of rights could be changed by parliament. This would be different from the United States model, which sets its Bill of Rights into its constitution.
The proposed act would set out both the civil and political rights to be protected and enforced and the roles of the three separate branches of government: the judges, the parliament and the bureaucracy. Between these three branches of our democratic system, there would be a ‘dialogue’ using the language of human rights. This, the report argues, would lead to a greater awareness of human rights and encourage public debate about our fundamental rights and whether public authorities respect them.

A triumph for the elites?

There are media reports of what the opponents of an Australian human rights framework have to say. Claiming it would represent ‘a triumph of elites and academics’3, they fail to argue the merits of the report’s recommendations. Others complain that senior and middle-ranking public servants would have to attend ‘re-education classes’ in human rights, conducted by lawyers.4 But the education of public servants in human rights thinking is surely a valuable goal.

The experience of other states/countries

Importantly, Victoria, the ACT, New Zealand and the United Kingdom among many Western democracies have human rights legislation. Their systems of government have not ground to a halt. Their parliaments have not been dominated by ‘unelected judges’. Their public servants have not been overwhelmed by the task of including human rights thinking in their decision-making.

What generally happens in these countries is that their parliaments are expected to pass laws that are compatible with their human rights law. The courts can issue a declaration that a piece of legislation infringes one or more of the rights protected by the human rights law. That’s all. Whether the legislation is changed or not is then up to the parliament.

And again, when their citizens are affected by a public servant’s decision, as well as making sure the citizen gets a fair hearing, those countries give the citizen a legally enforceable remedy in the courts for a breach of their human rights.
 

Australia as a mature democracy

There will, of course, be practical obstacles and a cost to the taxpayer in implementing a new and effective system of protecting the rights of minorities. Many beneficial reforms have come at a price and required resourceful planning. This may well be the only way that minorities, such as positive people, in this country ever get to enjoy readily enforceable protection of their rights.
Australia has led the way in HIV prevention. That success has its origins in respecting the human rights of those people susceptible to HIV infection. Protecting human rights works!

It’s time that the next step is taken. As a modern democracy, Australia runs the risk of being left behind if it fails to provide an effective human rights legal framework to protect and enforce the rights of its citizens.

Douglas Barry is a practising Sydney lawyer and distinguished member of Positive Life.

References:

1. National Human Rights Consultation Report (2009). Available at: www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report
2. On 30 March 2007, Australia signed the United Nations Convention on the Rights of Persons with Disabilities. Press release available at: www.afdo.org.au/node/118
3. Senator George Brandis in Paul Kelly, ‘Human Rights report poisoned chalice’ The Weekend Australian, 10–11 October 2009, p14.
4. Mark Gepp in Paul Kelly & Chris Merrit, ‘Charter a recipe for chaos’ The Weekend Australian,10–11 October 2009, p2.

Human rights at a glance

In simple terms, a human rights act is designed to incorporate the values of fairness, freedom, dignity, equality and tolerance into a legal tool that allows governments to measure policy against these values. This allows individuals to advocate for better public services and allows courts to determine disputes using human rights as a framework. It is hoped that a human rights act would encourage tolerance and respect in the community.

If a human rights act were passed, parliament would list the major human rights to be considered based on Australia’s ratification of key United Nations rights conventions and declarations.

To find out more about the proposed human rights act, visit www.humanrightsact.com.au/2008/