Re-imagining Australia: human rights for everyone – Prof Gillian Triggs | Lecture Curtin University
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Re-imagining Australia: human rights for everyone – Prof Gillian Triggs | Lecture Curtin University


>>Prof Terry: I welcome everybody to Curtin University’s Inaugural Human Rights Lecture. We are honoured tonight that this important
lecture will be delivered by the inspirational Gillian Triggs, and I think a person who we
would all agree has so impressively taken on her important role without fear or favour.
As Professor Triggs will discuss later, education plays an absolutely key role in re-imagining
Australia where human rights are fully realised and enjoyed by all.
Indeed, this annual lecture was established to encourage a strong human rights culture
both within and outside our university. The responsibility we all share in this respect
I think has been beautifully captured in some remarks that Eleanor Roosevelt made at the
United Nations in 1958 and I quote, “Where after all, do universal human rights begin?
In small places, close to home; so close and so small that they cannot be seen on any map
of the world. Such are the places where every man, woman,
and child seeks equal justice, equal opportunity, equal dignity without discrimination.” For us here at Curtin, our responsibility
in this important area pervades I think everything that we do.
I’ll just give you a few examples. The focus of the research, the scholarship,
the education, and the advocacy undertaken within the university’s Centre for Human Rights
Education is very important and I congratulate you Baden and your colleagues for the excellent
work that you do. I would also acknowledge our commitment through
the work of our ethics, equity, and social justice area to facilitate an inclusive and
socially just environment for all of our staff and all of our students irrespective of their
gender, their ethnicity, their age, or their physical, or social circumstances and our
work in what we refer to as the AHEAD Program, Addressing Higher Education Access Disadvantage.
A program that has attracted significant funding from the Commonwealth Government. Just before I introduce our keynote speaker,
I’m going to just give you an example of one of the projects under the AHEAD banner and
it’s called Row AHEAD. It uses rowing as a way of breaking down barriers
and giving aboriginal students from the Clontarf Aboriginal College greater confidence to pursue
higher education and obviously, not many people actually associate aboriginal people with
the elite sport of rowing and that’s actually not surprising given that only one tenth of
1% of rowers in Australia are aboriginal or Torres Strait Islanders.
The Clontarf Row AHEAD students have not only broken through their own personal barriers,
but also community ones and they’re in fact the first indigenous crew in Australia to
take part in a state regatta. The irony being of course that that Wadjuk
people of the Noongar Nation were traversing our rivers for centuries before we arrived,
but it’s taken a century or 2 for them to compete in the sport of rowing; a sport that
I think is so often associated with our privileged educational environments and as one of the
participants said and I quote, “It has made me think that maybe I can start to do more
things that I thought I couldn’t do.” For me this was a reminder that we as university
staff and as universities, should never lose sight of the power of education to change
the lives of individuals one person at a time, but by doing so we transform our communities
and we hope to build a fairer, stronger, and more globally competitive and responsible
Australia. On that note, I’m absolutely delighted to
formally introduce our guest speaker Professor Gillian Triggs.
She is as we’ve heard and as we all know currently president of the Australian Human Rights Commission,
a role that she took up in 2012. Prior to then, she was Dean of the Faculty
of Law and the Challis Professor of International Law at the University of Sydney, roles that
she held from 2007. Prior to that, Director of the British Institute
of International and Comparative Law. She’s also a former barrister and the Governor of
the College of Law. She has combined an academic career with international,
commercial legal practice and has advised Australian and other governments and international
organisations on international legal and trade law and disputes. Her focus at the commission is on the implementation
in Australian Law of the Human Rights Treaties to which we are a party and to work with nations
in our region on practical approaches to human rights.
Since her appointment, she’s been a fearless advocate for human rights ranging from her
support for the Safe School’s program to marriage equality; through to her calls for the monitoring
of conditions for asylum seekers and refugees in offshore detention centres.
The following quote by Professor Triggs in a recent media interview I think is a very
telling observation of her approach and I quote, “When I was younger I thought one could
build on the past, but I’ve learned that we need to be eternally vigilant in ensuring
human rights in a modern democracy.” Gillian we respect you hugely for your approach.
We admire your achievements. We’re privileged that you agreed to be with
us this evening, and we’re looking forward to hearing from you tonight.
Thank you very much.>>Prof Triggs: Good evening everybody.
It’s wonderful to see so many of you here and thank you for that wonderful introduction
from the Vice-Chancellor, Professor Terry and Professor Offord.
Can I recognise in particular the Honourable Melissa Parke. It’s wonderful to have you
here, and thank you Ted so much for your welcome. I hope that I can take your spirit
with me for this year and for what remains of my term next year.
I greatly value your offer of spirit and your understanding of what it is that we all try
to do at the Australian Human Rights Commission. May I also of course in this wonderful lecture
theatre named after of course a favourite author of mine Elizabeth Jolley, can I acknowledge
the Noongar people the traditional custodians of the land on which we meet; and I pay my
respects to their elders past and present. I was of course very honoured indeed to have
been invited by the Centre for Human Rights Education to present the Inaugural Curtin
University Human Rights Lecture and the aim of this what is to be an annual lecture is
a very important one. It’s to consider how Australia can ensure a resilient culture of
human rights and the centre has focused on this theme for the year, Re-imagining Human
Rights in Australia. In rising to this challenge posed by re-imagining, I note that we’re in
a caretaker mode prior to the election. I’ll do my very best to avoid political controversy,
and I hope that what I have to say is not so bland that’s to leave you bored and restless
and wishing you hadn’t come. Our mission of course at the Australian Human
Rights Commission is to ensure human rights for everyone, everywhere, every day.
The universality of human rights is a cornerstone of our understanding of rights. Human rights
are for all people regardless of race, creed, or any other characteristic.
While this aspiration has been realised for many if not all or most Australians most of
the time, it remains an unattainable aspiration for the vulnerable groups in our community.
Aboriginal and Torres Strait Islanders, those with disabilities, older Australians, the
LGBTI community, and the thousands of asylum seekers who sought our protection.
I suggest that Australia fails to meet our international human rights obligations under
the treaties to which we’re a party. And tonight I’d like look to look at those
areas where Australia is in serious breach of human rights law and consider how it has
happened that Australia has become exceptional and even unique among comparable nations in
our approach to human rights. The idea of re-imagining human rights of course
implies that human rights need to be re-imagined, and I believe they do.
The sad death last week of the 17th suicide victim in the last 5 years of a refugee or
asylum seeker either in detention centres or in the community and most particularly
from Nauru and Manus followed even yesterday by what appears to be another suicide victim.
Along with the continued detention of over 1,500 people including 50 children on Manus
or Nauru provide a stark reminder that Australia remains in egregious breach of the fundamental
right not to be detained arbitrarily. May I remind you because it was only last
year that we celebrated the 800th anniversary of the Magna Carta, but buried in the middle
of that document from 1215 along with the volume of wine in a glass to the breadth of
a piece of cloth to widow’s rights, right in the middle of the Magna Carta is that extraordinary
phrase, “No man may be detained arbitrarily without charge or trial by his peers.”
These are not modern ideas. They are ideas fundamental to every legal
system in the world. Perhaps the most revealing observation about
the state of human rights in Australia is the contrast with the laws of Papua New Guinea.
Just 2 weeks ago, the Supreme Court of Papua New Guinea found unanimously that detention
without trial on Manus Island is contrary to their constitutional right to protection
of liberty and the court called on the government to ban detention on the island. Some weeks earlier, the Australian High Court
ruled in the M68 case on the constitutional validity of the government’s Migration Act
requiring the removal of asylum seekers to Nauru for processing where they would be deprived
of their liberty. The court found that the legislation was constitutionally
valid so long as the detention was reasonably necessary for the purposes of processing.
It’s notable at that time that no judge, no one of the 7 judges refers to Australia’s
international obligations nor with one notable exception did they consider the power of the
common law’s writ of habeas corpus to protect against executive detention without trial.
In short, while removing asylum seekers to another country for the purposes of offshore
detention is valid under the Australian constitution, it amounts to an unconstitutional deprivation
of liberty under the more modern 1975 constitution of Papua New Guinea. Why is it that Australian law fails to provide
protection for fundamental freedoms when we are such a successful multicultural democracy
with a strong common law system that values the rule of law?
Over recent years and especially the last 15 years since 2001 which was an extraordinary
year, it was the year of the misstatement about children overboard. It was the year
that the Tampa sailed into Australian territorial waters, and within a few weeks of that we
had 911 and the attack on the twin towers and the Pentagon in the United States and
what we have seen pretty well ever since, has been a conflation by political leaders
of these questions of asylum seeker rights and a fear of terrorism, used and abused I
believe throughout the world or perhaps especially in Australia. What we’ve seen is a steady growth in federal,
executive, and ministerial discretion that is not for practical purposes reviewable by
our courts. Parliament has failed in its responsibilities
to provide a check on the executive power of government and it’s diminished the judicial
role of our judges, threatening the principle of the separation of powers, and distorting
the checks and balances among executive government, parliament, and the courts but these are abstract
ideas. Let’s have a look at some recent examples
bearing in mind that the legal test both in international law and domestic law is that
the validity of any legislative measure is whether it is necessary and proportionate
to achieve a legitimate aim and let’s begin by looking at counter-terrorism laws introduced
over the last 2 years. We’ve seen many new provisions introduced
that appeared to be disproportionate to the needs of national security. A particular example of the data retention
laws that allows security agencies to have access to private data without a warrant.
That is a critical point because you can actually learn more from metadata about a person than
you can from knowing the content of an email for example for which you need a warrant from
a judge, but you need no such warrant in relation to metadata for access by a number of the
security agencies on Australia. We have proposals for Stripping of citizenship.
We have preventive detention orders and control orders of children with proposed legislation
now that they be extended even further. We have a new COAG proposal to allow post
sentenced detention of convicted terrorists after their sentence has been served.
We have a New South Wales proposal for pre-charge detention of 28 days. Laws of this kind which seemed significantly
disproportionate to the aim although this will be a matter of balance and opinion.
Professor Roach has called this hyper-legislation by Australia that has exceeded either the
United Kingdom, or the United States, or Canada in a number of anti-terrorism laws since 911.
Australia has passed 65 different sets of counter-terrorism laws since that time. Another
area that is of great concern to the Australian Human Rights Commission is the growth in lengthy
administrative detention without charge or trial in maximum security prisons of those
with cognitive disabilities or who are unfit to plead and very recently, the hundreds of
immigration detention cases involving New Zealanders and others under the section 501
visa cancellation where the minister exercises a discretion where the individual is found
by him to have failed the character test. One of the many ironies of working in the
human rights area is we seemed to have created more angst and concern about how New Zealanders
being held on Christmas Island than we ever did about the asylum seekers. Another matter of very profound concern to
the Human Rights Commission is the alarming rate of detention of indigenous Australians
with 24% of juveniles in detention being indigenous and suicide being the main cause of death
of those between 15 and 24. Aboriginal and Torres Strait Islander adults
are 15 times more likely to be imprisoned than non-indigenous Australians.
Aboriginal deaths in custody continue 25 years after the Royal Commission into Deaths in
Custody. The causes are many fold but we are very
concerned by the rise in the number of arrests for parking fines or minor offences and I
think you’ve had a particularly tragic case here in Western Australia, and also the rise
of paperless arrest laws in the Northern territory where we’ve seen the High Court of Australia, again rule that laws of this kind are constitutionally valid. We also of course have the continued detention
of well over 3,000 asylum seekers and refugees, most of them we know to be refugees with children
continuing to be held in Nauru and a number of children in Australia vulnerable to return
to Nauru. The long term and indefinite detention of asylum seekers is in my view an egregious
breach of international human rights law and the provision against arbitrary detention
in particular but we’ve also seen threats to freedom of speech curtailed by secrecy
laws on what are security provisions. We’ve seen the right to freedom of association
challenged by the so-called Queensland bikie laws, but also by the West Australia’s proposed
anti-protest laws that will criminalize the preparation for prevention of a lawful activity
over trespass. We’ve seen the role of judges to review the
validity and application of laws diminished by mandatory sentencing provisions particularly
in alcohol-related cases but most particularly and insidiously by the significant expansion
of ministerial discretion that is not subject to meaningful administrative or judicial review.
Access to justice is denied where funding to community legal services has been cut or
withdrawn and finally, there are even examples in which there has been an explicit rejection
of international law where for example the Migration Act now provides that a government
official who breaches the core principle of non-refoulement under the refugee convention
will not be vulnerable to prosecution and the act will remain an authorised one. Some might say, “Why stand up against these
relatively minor legislative changes? Most people haven’t even noticed them.
A lot of them I might add are passed in 2 weeks before Christmas.
Why be worried? Let’s wait until an individual is actually
prosecuted; very few prosecutions have actually been brought under the counter-terrorism legislation
and very few are successful. The Chief Justice of Australia has very rightly
countered this argument recently in a speech in which he said, “Each encroachment by statute
regulation rule or by-law on common law rights and freedoms is if taken cumulatively over
time and across state territory and commonwealth jurisdictions can be the death by a thousand
cuts of these fundamental rights and freedoms.” In short, the whole is bigger than the sum
of its parts. We cannot allow a gradual slide into executive
overreach, or the expansion of ministerial discretion in the absence of judicial oversight.
To resist what is an unprecedented extension of government power, we should of course understand
how the situation has arisen in Australia. The answer I suggest to you is Australian
exceptionalism. The failure over many decades of efforts to
implement Australia’s human rights obligations and its domestic law, has left a legacy of
isolation from global human rights laws and jurisprudence.
Australia’s approach to human rights stands in stark contrast to other comparable legal
systems where human rights commitments are reflected in domestic laws, in their constitutions,
and in Bills of Rights that limit the power of parliament to authorise the executive to
act inconsistently with the nation’s international obligations. Before I go further I should in all fairness
and honesty recognise that what I see has been a retreat over the last 15 years from
our human rights obligations betrays Australia’s historical commitment to developing contemporary
human rights law. Our commitment to human rights until the last 15 years or so has been
one of genuine leadership and commitment. I must go back to somebody I have always greatly
admired Dr. Evatt, Minister for External Affairs. He played a very significant role in drafting
the Charter of the UN. He was a strong supporter and negotiator with Eleanor Roosevelt whom
the vice-chancellor has already quoted tonight in drafting the Universal Declaration of Human
Rights which was adopted by the General Assembly without a single negative vote when Doc Evatt
was President of the General Assembly; an extraordinary feat for this Australian politician
at the time. He also presided over the adoption of the
1948 Convention on the Prevention and Punishment of the Crime of Genocide.
In the decades following, respective Australian governments had been genuine and active negotiators
of the suite of Human Rights Treaties that had been ratified including and I would date
it up to now, the passing of this statute for the International Criminal Court which
came into force in 2002 where that extraordinary notion adopted in the Nuremberg War Crimes
Tribunal. International crimes against humanity are committed by men not by abstract entities.
Each of us is individually responsible for those matters over which we have some effective
control. Despite its leadership in crafting human rights
law, Australia’s introduction of that international law into our domestic law has been piecemeal
and very slender and fragile. The Commonwealth of Australian Constitution
does not specifically list traditional common law of freedoms.
The constitution as you’ll know respects and protects the right to freedom to vote, to
compensation if a property is unjustly acquired, and of course freedom of religion is protected.
All other freedoms that emerged in the either as part of the Magna Carta or in the years
after that, depend for their protection on other legal mechanisms especially our courts
and it’s rested with the High Court of Australia for example to imply right of political communication,
a right that does not fully equate to the common law or international law right to freedom
of speech. Unlike every common law country in the world
and unlike most civil law countries, Australia has no Bill or Charter of Rights. In the absence of a legislated commitment
to fundamental rights and freedoms, we do not speak the language of human rights with
our North American and European allies including jurisdictions such as Canada, New Zealand,
the United Kingdom, United States, South Africa, and much of Europe.
Every region of the world, Europe, the inter Americas, Africa, and more recently the Arab
nations have established regional agreements, commissions, and courts on human rights but
Australia is not part of any human rights treaty for the Asian region where ratification
of human rights treaties has been slow. The consequence is that there’s no regional
human rights jurisprudence that could provide a scaffolding for evolving regional norms
in our part of the world. The deficits in constitutional protection
would not be fatal to the protection of human rights in Australia had parliament legislated
to implement the core human rights to which we are party.
It’s one thing of course for our diplomats to play the widely respected role in negotiating
and ratifying human rights treaties, but it’s proved to be a totally different thing to
garner the political will in federal parliament to pass the legislation to make those human
rights obligations binding. And in fact the key human rights treaties,
the International Covenant on Economic Social Rights, the Covenant on Civil and Political
right, even the Convention on the Rights of the Child, among many others including the
Refugee Convention have not been implemented as part of our national law. Now there are 3 major exceptions and they
are the Convention on Race, the race discrimination convention now a part of Australia in the
Race Discrimination Act. One of the most important human rights instruments Australia has ever
agreed to. It’s been absolutely fundamental in creating a culture for human rights that
I think Australia needs so badly. We’ve also of course accepted and given domestic
implementation in relation to sexual discrimination and in ’96 to disability discrimination.
Interestingly, we have our own national age discrimination legislation that is not matched
by an international treaty. We’ve been a real leader in relation to those
4 areas, and some other rights for example the right to privacy are protected by the
Privacy Act at the Commonwealth level and that’s proved to be an enormously important
giving effect to the human rights treaty because of article 17 that protects privacy at a broad
level but is also you may well know, protected the right of those of a different sexual orientation
particularly in relation to the laws in Tasmania. While human rights then in Australia are in
my view very inadequately protected either by the constitution or by domestic legislation,
it might be thought that the common law would provide a reliable safety net; for under the
common law parliament is presumed to have intended to comply with international law
and the principles of legality. By far, the most powerful principle of statutory
interpretation limiting the capacity of the courts to consider international obligations
is that even fundamental common law rights such as the right not to be detained arbitrarily
or freedom of speech can always be overwritten by clear and unambiguous words to the contrary.
If the laws are valid and the language is clear, the courts must apply them. It’s for this reason that the common law has
not proved to be the effective protection for human rights for the legislation will
often had been so frequently redrafted and reformed that its words are crystal clear
and cannot be overcome. And let me give you a couple of examples.
One is I think now a notorious decision of the High Court of Australia in 2004 where
a 4 member majority, the majority in Al-Kateb and Godwin concluded that the mandatory and indefinite
detention of asylum seekers as required by the terms of the Migration Act is constitutionally
valid. The plaintiff was a stateless Palestinian
man whose claim to refugee status had been rejected.
No country would or could accept him with the result that Al-Kateb was detained for
5 years by the Australian government without charge or trial.
Because in the view of the majority of the court the terms of the Migration Act was so
clear, there was no capacity for the court to reach out to either the common law which
of course has a principle against arbitrary detention or to international treaties that
had not been given domestic effect by passing legislation through parliament. But the Chief Justice was in this case in the
dissent and he confirmed the principle that the courts do not impute to the legislature
an intent to abrogate or curtail certain human rights or freedoms, unless that intention
is clearly manifested by unambiguous language. The problem is that judges will differ as
to whether the language is clear and indeed they did in that case, although you’ll probably
be aware that Justice Michael Kirby was in the dissenting minority along with Justice Gummow. Each of those dissenting judges taking the
view that the language was ambiguous and you could move to common law freedoms, the majority
didn’t agree. The more recent one is the one that I briefly
mentioned, the M68 case. Here the plaintiff was a Bangladeshi asylum
seeker, technically an unauthorised maritime arrival under the Migration Act and she sought
an application to the court for review as to whether the Commonwealth and the minister
acted beyond executive powers under the constitution by enforcing her detention in Nauru. Justice
Gageler recognised that the focus of the case was on the capacity of the executive government
to procure or enforce the deprivation of liberty without of course charge or trial.
He along with a 6-member majority, only one dissenting judge, agreed that the legislation
was clear. So parliament could not, sorry the courts could not go beyond the words of parliament. Now many of you will say, well, that’s obvious.
Parliament is sovereign. Parliament is supreme.
We voted for parliament. Parliament makes the laws.
The judges apply the laws. That’s a fairly well understood concept.
What happens to a modern democracy when you have a complicit parliament where opposition
and major parties agree to these provisions which breach human rights law, and they have
typically as this Migration Act does to prevent the courts from considering the validity of
the decision by a minister as a matter of discretion? What happens to democracy then?
You’ve excluded the courts for practical purposes and you’ve got a compliant parliament which
will agree to the proposals put forward by the executive and that I think is a very serious
danger. What the M68 case does as one of the most
recent decisions is to confirm that a key characteristic of Australia’s approach to
human rights is that parliament has almost unlimited powers to authorise the government
to act where they believe appropriate inconsistently with the fundamental freedoms recognised by
the common law. I’ve yet to mention of course the potential
impact of the United Nations monitoring systems and the individual complaints that can be
made to the various treaty bodies. To give you an example of the impact of those
findings of treaty bodies, over 36 matters have over recent years been brought to the
United Nations Human Rights Committee and had been the subject of findings against Australia
or Australian law most particularly of course in relation to indefinite detention of asylum
seekers. Almost all of those matters, in fact all of those matters have been completely
ignored by the Australian government and I’ve recently returned from Geneva where we had
the second of our universal periodic review by the Human Rights Council and 104 nations
expressed their concerns about 3 matters. The first was offshore processing.
The second was the very high rate of indigenous incarceration and administrative detention.
The third was domestic violence and the loss of lives of women, predominantly women but
not always, where matters all raised within and also I have to say courteously, and briefly,
and based on accurate evidence calling on Australia to reconsider its policies in relation
to all of these matters. Australia has rejected half of those claims
and noted the other half which is of course diplomatic code for saying nothing much is
going to happen. We’ve also seen that the rapporteur in the
Convention Against Torture declared last year that the conditions in the offshore detention
centres are in breach of that convention, and amount to cruel treatment and punishment.
Despite these concerns expressed as I say genuinely, courteously, and based on evidence,
they are rejected by the Australian government and we know of course that the response by
former prime minister is that we will not be lectured to by the United Nations. That brings me then to where I really wanted
to go with this lecture, and that is how can we re-imagine human rights in Australia?
The first and foremost point that I must make as an international lawyer and based on my
last 4 years, is I think we have to reopen the discussion to create a legislated charter
for human rights at the federal level. I think you’ll all be aware of the work of
Father Frank Brennan and his consultations around Australia.
He recommended to the then Labor Party that we have a human rights charter. The then government
considered it, but ultimately the proposals fell into desuetude It’s not a popular issue.
Australians had been sadly I think misled into believing that if we had a charter of
rights at the federal level, that would give our judges an unrestricted right to rule and
be activist judges to create new law. One example of this when I raise this with
parliamentarians is, Well, look what the United States Supreme Court did in the Obergefell
case on marriage equality. The United States Supreme Court can go to
its Bill of Rights and say, There’s the 14th Amendment, the principle of equality before
the law based on the similar principle of equality before the Law of International Covenant
on Civil and Political Rights to which of course Australia is a party but there, the
debates across the United States could be resolved by the Supreme Court.
Now, I see that as an important role of leadership by the court based upon contemporary jurisprudence
on an important matter of national interest. Many, many reasonable and fair minds will
say, That is not right for Australia. We do not want our judges being able to interpret
the law in a way that will create the law for the entire nation. Now I realised that people have a different
view of the role of a charter of rights, but I think we need to discuss it in light of
what I think had been very significant breaches of human rights and adrift towards isolationism
in relation to human rights, because as we do not have any of the tools for human rights
in Australia, we have not been able to speak the same language with our colleagues in so
many other counties on these issues. I think we need to think about it again.
It could be something like the New Zealanders have.
This is something similar to the South Africans or the Canadians where it’s legislated.
If it was going badly wrong, you simply reform it or repeal it entirely. It would not be entrenched
constitutionally, I think the chances of that are very, very slight indeed if not zero. A legislated charter but one which will allow
the courts to declare that there might be an incompatibility of a legislative measure
with a particular rights listed in the charter. You might be interested to know that in New
Zealand, they’ve had a charter for about 24, 25 years and only once has the court ruled
that there’s been an incompatibility. What it’s done is to create the language of
human rights in New Zealand, and in Canada, or in the other jurisdictions I’ve mentioned,
so that everything is viewed through the prism of human rights because the rights are listed
in a charter that every citizen can read and understand.
In Australia we just don’t have it and we don’t have a strong enough understanding of
our constitution. That is my re-imagining. I would like to see
that debate reinvigorated in Australia. To avoid a polarisation of debate, let’s look
at whether we’d want to go as far as a US kind of system?
Is the New Zealand one better for us? The British or the English Human Rights Act
is criticised and maybe altered if Brits says it’s successful.
I sincerely hope it isn’t. I withdraw that as a political statement.
Let’s look at these examples but do so not in a polarised way but in a way of saying
how can we bring Australia into the international legal environment to meet what I think was
the vision and the first imaginings of these remarkable politicians that we had in the
40s, and the 50s, and 60s, and 70s. People who wanted Australia to be part of
that leadership, appreciation of human rights, and who were prepared to take some risk, go
ahead of public opinion in some cases; but did so in a leadership way for Australia that
brought us into the international community. Now I fear, I deeply fear that we are drifting
in an isolated way from that jurisprudence. Well, that’s not my only solution to re-imagining.
I now come really to the core of what I wanted to say and that is that it comes back ultimately
to culture, to normative understandings of human rights.
That comes back to education. By normative, perhaps I can tell you a little
bit about what you may have been aware of here in Western Australia and that was Operation
Fortitude in Melbourne. Does anyone recall this?
You might remember that our newly created border force decided to issue a press release
that they were going to stop people in the shopping malls at Melbourne to question them
as to whether or not they had their visa, or passports, or whatever. Now, I think it
would be fair to say that if I, I don’t live in Melbourne but if I did, I’ve been to David
Jones and bought my little parcel walking down with my pearl earrings and my little
jacket. I don’t think they were going to stop and
ask me where my visa was. This can only have been intended to work on
some kind of racial or cultural profiling. What was wonderful and despite my telling
you a very grim tale tonight, what was wonderful was that within hours of the press release
going out into the public, social media responded and said, “Are you aware that the border force
officers are going to be doing this?” They have no legal right I might add to stop
and question at all, but nobody appeared to have gotten any legal advice on this before
the issued press release. Within a couple of hours of that, hundreds of people were
on the streets, at Flinders Street station, and within a couple of hours of that the border
force senior executives withdrew the press release and said that it had been a mistake.
I mentioned that example because in a way, human rights are about culture, about what’s
normative, and about what’s fair. I know it’s a much clichéd term the fair
go in Australia but it actually really means something to Australians.
We interpret it differently. We don’t speak the language of human rights
law. Most Australians don’t know about these treaties
or understand them. They don’t really and sadly understand their
constitution, but they do get the idea of a fair go and there’s a limit.
I think Operation Fortitude gave me some sense that it’s the culture that matters and that
brings me really to my point. It’s ultimately education.
Education is a human right. In the Universal Declaration going back to
Doc Evatt, education is the full development of the human personality and the strengthening
of respect for human rights and fundamental freedoms. It is education about human rights that I
think is going to be the most important step. If at the political cultural level in Australia,
we have a higher level of education about human rights and that is of course what I
applaud the centre for doing. I think that is really where the future lies if we can’t
achieve the aspirational charter that I would very much like to see Australia have as a
serious discussion about. Education in human rights is a human right in itself and we’ve
had a take out of this concept. The Melbourne Declaration on Education Goals
for Young Australians by the Council of Ministers on Employment Training and Youth Affairs sets
goals to promote equity through schooling, non-discrimination in the school environment,
and to ensure that schooling contributes to a socially cohesive society.
The goal also includes ensuring that all young Australians are active and informed citizens.
That they appreciate Australia’s diversity, acknowledge indigenous culture, and are committed
to equity and justice. Human rights education is a core part of our
functions of the Human Rights Commission. We have done some surveys and we found that
teachers, 98% of respondents as teachers to our survey said it was important to educate
their students about human rights. One of the great difficulties is that teachers
have very crowded curricula, and human rights as a legal matter in its course not only legal,
can appear extremely complex. Teachers are not typically trained in the
law, and they’re not trained to look at treaties or to understand how they work.
They lack experience in how to integrate human rights law generally into the curriculum for
their particular years. One of the things that we’ve been doing at
the commission is to develop resources for teachers that they can download simply by
keying in the code number for their curriculum and we then provide them with materials that
they can use. What I’d like to do is to give you some examples
in the time that I have left to give you some idea of where we’re putting very small budget
but that is into these kinds of video tools that teachers can use and that explain how
human rights law can work in Australia. This was designed for schools, but we actually
find adults like it too.>>Voice-over: It’s an 800-year-old document written on dried animal skin in England on the other side of the world in a language we no longer use that
most people couldn’t read even back then. Why is Magna Carta important to us in Australia today? Because it was the starting point for some
of our most important human rights. Things that’s easy to take for granted.
For instance before Magna Carta, life was pretty cruisy.
If you were a king, you could get away with all kinds of things; building your own armies,
invading other countries whenever you fancy, and taxing people to pay for wars without
even asking. Now there were laws in those days, but some
rulers believe they had absolute power and simply ignored them. That changed in 1215 when a group of landowning
barons finally had enough of King John’s behaviour. They decided the king governed by their consent
not just because he was king. They got together and forced the king to agree to limit his
powers by signing Magna Carta. It was the beginning of fairer rights for the people.
The king also agreed he couldn’t just add new taxes.
Free man had to be represented by a common council to be taxed which started the evolution
of democracy. It also meant the king was no longer top dog
because above him now was the law, or at least that was the idea.
Kings and queens had a lot of trouble getting used to not being in charge. Over the next few hundred years, people power
in the form of parliament grew to be much stronger. In its Bill of Rights of 1689, the English parliament formally decided it was the job
of government to represent the people and protect their rights.
These ideas came to Australia in English law. We know today if someone is accused of a crime,
they have the right to a fair trial and they must be proven guilty before they can be punished.
Before Magna Carta, justice wasn’t always applied fairly.
Remember old King John? He was pretty good of filling up the prisons.
Under Magna Carta, it was no longer up to him to decide whether someone had done wrong.
It said, “No free man shall be seized or imprisoned except by the lawful judgement of his equals
or by the law of the land.” Now you had to have a reason to lock someone
up, and later people decided you also had a right to argue your case in front of a court. In 1215, no free man didn’t mean everyone
because in those days most people weren’t free. They were poor peasants who served the lords. It took until the 16-, 17-, and 1800s before
all men were free in western countries and most women waited until the 20th century.
In 1948 after the atrocities of World War II, the nations of the world created the Universal
Declaration of Human Rights. For the first time the whole world recognised
that everyone, it didn’t matter who you were had the right to enjoy freedom of speech,
freedom of religion, and freedom from fear and want. It has been described as the International Magna Carta for all mankind. So, this faded old piece of animal skin has played
a big part in shaping the democratic society we have in Australia today, but many people
around the world are still denied their rights and freedoms.
This reminds us human rights shouldn’t be taken for granted and until they are, the
long story of human rights and freedoms that began with Magna Carta will continue.>>Prof Triggs: We’re finding these really are fantastic.
We use them a lot and we use similar kinds of things for grownups including training
of public officials, border force officials which is quite true.
We use these tools a lot and do if you’ve got time, go and have a look at our website.
We’ve got a wonderful one on the Power of Oldness. Behind this and behind the work that we’re doing is an extraordinary phenomenon. A colleague
of mine and a lawyer did a survey of Australians a couple of years ago to ask, “Do we have
a constitution?” 60% of Australians said, “No.” Then asked a second question, “Do we have a Bill of Rights?” 80% of Australians said, “Yes.” A case a few weeks ago the man who was being
arrested by the police for killing his partner, yet another of these horrible cases of intimate
partner, domestic violence. When he was arrested said to the police, “I
want to take the 5th amendment.” That’s why we’re doing this because although
it seems simplistic, the truth is we do have to understand this a little better than we
have done. I would like to finish because I have used
up my time, but I would like to finish with one that is being probably one of the most
successful things we’ve done and are currently doing at the commission, and that is running
the nation’s Racism, It Stops With Me Campaign. It’s been very effective.
We’ve now got something like 400 companies joining and signing up for the “Racism. It
Stops With Me” funded by the federal government and it’s
really being very good in both educationally changing understandings, but also creating
a culture that racism in particular is not acceptable. I’d like to finish then if I may with this one.>>Racism has no place in sport, no place in sport. Everyone, everyone deserves a fair go regardless
of skin colour, background, or culture. Racism.
Racism, it stops with me. It stops with me.
It stops with me, with me, with me, with me. Racism, it stops with me.>>Prof Triggs: So I think obviously Adam Goodes as being a remarkable leader and we need more like that to stand up and to call out racism when we see it,
but also in other areas of ageism, of gender and equality, of the rights of children, my
colleague at the commission works on and other areas of broad human rights.
Can I conclude then by saying that I think Australia does have a piecemeal and very inadequate
and exceptional approach to the incorporation of human rights obligations and domestic law.
Human rights education has perhaps the major role in re-imagining the world in which we live. It can empower us all to better understand
the fundamental freedoms and rights that each of us possesses.
It’s about making human rights value as part of everyday life.
Education is that the vital tool for re-imagining the Australia that we want to live in and
I really value your coming tonight to listen to me. Thank you very much. Thank you.

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