Australian Embassy
The Philippines

SP100617 Speech of Honourable Catherine Branson QC

Keynote Address by the Honourable Catherine Branson QC
President and Human Rights Commissioner
Australian Human Rights Commission
Australia-Philippines Policy Forum on Human Rights
Manila, 17 June 2010

Introduction

It’s a pleasure for me to be here in Manila to participate in the 14th Asia Pacific Policy Forum on Human Rights.

I’m delighted to be here making friends with people who have the same interest as me in the protection of human rights, both in our own countries and in the region, and also to be able to speak to this audience about the work of the Australian Human Rights Commission.

I have been delighted also to be able to spend time with the Commission on Human Rights of the Philippines, to learn of their experiences and to find how much we share in common in the work and interests we pursue.

This has filled me with an even greater confidence than I earlier had that cooperation between these two Commissions will be in the interests not only of the commissions themselves, enabling them to improve their capacities to work in the interest of the people of our own countries, but also will improve the protection of human rights throughout the region.

Structure of the Australian Human Rights Commission

So let me talk a little about the Australian Human Rights Commission. The Australian Human Rights Commission is about the same age as the Philippine Commission on Human Rights. It was established in 1986 by legislation that we now call the Australian Human Rights Commission Act.

That Act provides for a Commission to be constituted by a President, and five specialist Commissioners. Slightly sadly, these six positions are presently held by four individuals. As you’ve heard I’m the President and I am also the Human Rights Commissioner. One of my colleagues is our Disability Discrimination Commissioner and also our Race Discrimination Commissioner. We have a Sex Discrimination Commissioner who carries responsibility for age discrimination. And we have an Aboriginal man who is our Aboriginal and Torres Strait Islander Social Justice Commissioner. His particular responsibility is the protection and promotion of the human rights of Indigenous Australians.

The Act gives us a very broad mandate and, like the Philippines Commission, we are a national human rights institution that is fully compliant with the Paris Principles.

Individual complaints and unlawful discrimination

We have responsibility under four separate discrimination Acts. Those Acts are the Sex Discrimination Act, the Race Discrimination Act, the Disability Discrimination Act and the Age Discrimination Act. We look forward to these Acts being brought together into a single Equality Act fairly soon.

The Race Discrimination renders unlawful all discrimination on the grounds of race. The other three discrimination Acts don’t have that wide framework. They make unlawful in Australia discrimination in specified areas of public life. That is in the areas of education, employment, the provision of services, accommodation and the administration of programs of the national government.

Legal proceedings cannot be instituted with respect to an alleged act of unlawful discrimination unless the complaint is first brought to the Australian Human Rights Commission. Except in certain limited circumstances, unless the complaint is plainly without merit, the Commission is charged with investigating the complaint, bringing the parties together and seeking to achieve by conciliation the resolution of the dispute between the parties.

We have a high success rate in achieving resolution of those disputes. We see this as an important function as it provides a very accessible form of relief to people, many of whom are unable to afford the cost of retaining lawyers and going through the formal and often lengthy processes of a court proceeding. The Commission provides an informal forum for dispute resolution in which parties do not require legal support. We can often conciliate complaints quite speedily, indeed sometimes within 24 hours.

For example, we have experienced people in employment ringing up and saying, “I’m suffering discrimination here. I fear I’m about to lose my job”. My conciliators can get on the telephone to their employer almost immediately and, through conciliation, preserve that person’s employment. In the area of education, we can sometimes keep people within institutions when, without our intervention, they might have lost the continuity of their education.

Our role in conciliating complaints of unlawful discrimination is core function of which we are proud and which we feel provides a valuable community service. It is not just valuable for the parties but also because it sends a very important message to employers, service providers and others in Australia that there is a readily accessible forum to which complaints about unlawful discrimination can be brought. Conciliation can also perform educative functions. Often people discriminate without really understanding what they are doing. We can often use the conciliation process not only to better educate those who are the parties to the complaint, but also to educate the entire industry from which they come about methods that can be implemented within that industry to address discrimination generally.

We also think it is important to address any sense of impunity which, for example, businesses might have. Some small business may feel that they are small enough to fall under the radar and they need not worry about complying with Australia’s discrimination laws. Or large business may feel that individuals of limited means are unable to challenge their conduct. It’s widely known in Australia that the Australian Human Rights Commission is an accessible and informal forum to which anyone can bring a complaint of discrimination.

The Australian Human Rights Commission also has responsibilities to protect and promote the rights and freedoms contained in a number of international instruments, including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Rights of People with Disability, and ILO Convention 111 which is concerned with equal opportunity in employment. We investigate and attempt to resolve by conciliation individual complaints under these instruments in much the same way that we deal with complaints of discrimination. The important difference is that, as failure to comply with these instruments is not unlawful, the only remedy available if we can not conciliate the complaints is the preparation of a report concerning the complaint which is tabled in the national Parliament.

We do not have explicit jurisdiction in respect to the International Covenant on Economic, Social and Cultural Rights, nor explicit jurisdiction under the Convention Against Torture. While this means that we cannot entertain and seek to conciliate complaints under these international instruments, it does not prevent us from doing other work to promote and protect the rights identified in those conventions specifically as part of our educational work, and our advocacy and research work.

Intervention in court processes

Additionally, the Australian Human Rights Commission has the power, subject to the leave of the Court in the particular case, to intervene in court proceedings which involve human rights issues. We exercise this power in an endeavour to improve and enhance the role of human rights jurisprudence in the decisions and judgments of Australian courts and then in Australian law generally. We intervene in appropriate cases, where the courts allow us, where we can provide assistance to the court that the parties themselves may not provide. In particular we intervene to assist the courts on the construction of Australia’s own human rights legislation and also to direct the courts attention to national and international jurisprudence touching on the major human rights treaties that might be relevant to decisions being made under Australian law.

Submissions to Parliament

Another Commission function is to examine laws and proposed laws and to make submissions about the consistency of those laws with Australia’s international human rights obligations and to suggest how the law could be improved to better meet Australia’s human rights obligations. One recent example of this work is a submission the Commission made to a Committee of the Australian Parliament on how Australia’s Sex Discrimination Act could be improved and updated, to become a more powerful and more modern tool to achieve gender equality in Australia.

The Australian Government has recently been consulting widely on its security legislation. Like so many countries, after the terrible events of 9/11, we introduced with considerable speed, new security legislation. And like many countries which acted in haste, we probably got wrong the balance between protecting national security and respecting the rights and freedoms of individuals.

The Australian Human Rights Commission carefully analysed Australia’s security legislation and prepared a substantial submission which addressed the very difficult issue of how to balance competing rights; to adequately protect, on the one hand, the right of the population to live free from violence and fear while on the other hand respecting the civil liberties of individuals to the full extent that they should be protected in a well functioning democracy.

Research in support of policy initiatives

The Australian Human Rights Commission also has a research function which we exercise in an endeavour to promote the enjoyment of human rights in Australia.

For example, the various African communities are all relatively new communities in Australia. They have faced some particular difficulties in being welcomed as part of an inclusive Australian society. The Commission conducted extensive consultation, relying heavily on a group of representatives from the African communities to understand their experiences. Our desire was that those whose interests we were seeking to advance were closely involved with the planning and the conduct of all aspects of the project. We will shortly publish a report, outlining the difficulties these communities face and making suggestions about what might be done to support African Australians to enjoy fully their human rights within Australia’s multicultural society.

Another area in which the Commission has recently been involved is advocating to ensure that Australians with disability are able to access public buildings with the same freedom that other Australians enjoy.

We are also doing work designed to make the Internet more accessible, particularly for those with disabilities. Sometimes simple changes can have a significant impact on an individual, by, for example, helping them to maintain their position in the workplace through accessible technology.

Education

The Australian Human Rights Commission believes that human rights education is critical to creating a fairer society for all in Australia. The Commission has been working on human rights education for a long time, through our website, through educational material for primary and secondary schools and by assisting in curriculum development. Indeed, in a sense all of the work we do is educational in nature.

The recently announced Australian Human Rights Framework has provided significantly increased funding for improved human rights education in Australia. The Australian Human Rights Commission welcomes this initiative. With increased funding, we hope to be able to contribute to a greater understanding and awareness of human rights among public servants, decision makers and the general public. We are hopeful that this new work will give greater prominence to human rights at all levels of society so that more people are aware not only of their own rights but aware of the need to be deeply respectful of the rights of every member of the Australian community.

International programs

The Commission also has a small international program team that specialises in education and training with a focus on the Asia-Pacific Region. Its skills involve the design and delivery of programs which strengthen the capacity of agencies and institutions in the region to promote and protect human rights in their own countries.

Our largest programs are in China and in Vietnam, but we also do work in the Pacific around disability rights and we’ve worked in a number of other countries including Indonesia, Uganda and South Africa.

Much of this work involves technical cooperation with a number of government ministries and agencies as well as some selected non-government bodies. Some of the areas on which we work include domestic violence, legal aid, women’s rights, access to justice and anti-corruption.

In addition to improving the enjoyment of rights in the countries in which we work, the Commission’s involvement in these technical cooperation programs gives our staff the opportunity to broaden their experience and knowledge and to learn models of best practice from other national human rights institutions.

How we work at the Commission

The Commission is faced with a massive demand for human rights work in a very restricted resource environment. We must, therefore, fix some priorities.

There are certain Commission functions we simply must perform. For example, we have a legal obligation to conciliate and investigate individual complaints. The individual Commissioners must always be able to comment on the pressing human rights issues in their area of special interest. These are two functions the Commission is under an obligation to support.

There are other functions the Commission will always want to do, although we are under no legal obligation to perform them. For example, to influence, where we can, the national agenda human rights agenda. The newly-announced Australian Human Rights Framework calls for the development of a national action plan for Australia on Human Rights. Of course, we will work with Government to get the best possible national action plan for Australia. Once the plan its develop, we will have an ongoing role to monitor its implementation and measure the Government’s achievements against the plan.

The Commission also has the ability to determine its own priorities in using its remaining resources. We have recently completed an extensive planning program through which we have identified two key priorities to inform much of the work that we will do over the next two years. We hope to build the expertise of the Commission and to increase the public profile of the Commission’s work in these areas.

The first priority area is to build greater respect and understanding for human rights throughout the Australian community. The second is tackle violence, harassment, and bullying. We see these two focus areas as ones which touch the lives of all Australians.

One of our very first areas of work in the area of violence, harassment and bullying is that of cyber-racism. Cyber-racism and the extent to which people in Australia can be both harassed and bullied through the internet, social networking sites like Facebook and also through the use of texting on mobile telephones, is a growing issue in Australia. We are working with those in the internet industry, academics and other concerned organisations to find ways in which we can begin to address this developing problem.

Achievements

I believe the Australian Human Rights Commission has made an important contribution to improving the protection of human rights in Australia. I would like to take this opportunity to speak briefly about some of the things we have done in the recent years of which we are particularly proud.
Close the Gap
Since 2007, the Commission has been involved with a campaign which grew out of the work of our Social Justice Commissioner. This campaign is called the ‘Close the Gap’ campaign. It aims to address the massive inequality in health standards between Indigenous and non-Indigenous Australians.

You may not be aware that Indigenous Australians will live 17 years less than other Australians. Aboriginal and Torres Strait Islander babies will die at almost three times the rate of non-Indigenous babies. It is not acceptable for a wealthy country like Australia to allow this inequality to continue.
‘Close the Gap’ involves Indigenous and non-Indigenous health bodies, NGOs and human rights organisations working together to secure the support of the Government to commit to closing the gap in health and life expectancy within one generation. The campaign has been strongly supported by the Australian Government and has made a substantial contribution to the improvement of healthcare for Indigenous Australians. However much remains to be done.

The ‘Close the Gap’ campaign is an example of a very effective coalition of government and non-government actors working together to tackle systemic poverty and human rights abuses. I must confess that improvement in health outcomes have been slow to materialise but we think that they are being realised. Commitment from all coalition members to the ambitious goal of health equality remains strong.

National Inquiries

Another function we have used very successfully in the past is our power to conduct national inquiries. Our national inquiry function is an effective way to bring publicity to underlying systemic issues that lead to a high number of individual human rights violations. As a result of these inquiries, we provide detailed recommendations to Government as to how human rights might be better protected.

We use different methodologies depending on the subject under inquiry. In some cases, we will conduct public hearings, allowing the press to hear and report on individual stories. If it will assist our inquiry, we have the power to demand and receive information and documents from the Government.

I will speak just briefly about two examples. The first because it was a relatively modest inquiry; modest in scope, but dramatically effective. The second because it was a large and extensive inquiry that took place over a long period of time and was undertaken without the support of the Government Department on whose activities we were reporting.

The National Inquiry into Discrimination against People in Same-Sex Relationships involved an audit of all federal laws to examine whether they discriminated against same-sex couples with respect to financial and work-related entitlements. The Inquiry found 52 pieces of legislation that discrimination in this way. The Inquiry also called for submissions and held hearings around Australia to gather case-studies and stories from couples as evidence of the impact of the discriminatory laws.
 

In 2008, as a direct result of this Inquiry, the Australian Government introduced legislation to remove discrimination against same-sex couples from most federal laws with respect to financial and work-related entitlements.

In contrast, the Commission’s National Inquiry into Children in Immigration Detention examined not just the relevant law but also the implementation of that law.

All people who arrive in Australia without a valid visa, including children, are required to be detained until they are granted a visa or removed from Australia. At the time of the National Inquiry, children were held in high security immigration detention centres, often for long periods of time. The Commission considered the way in which the Department of Immigration administered these centres and the impact on the conditions in which children in immigration detention lived.
 

In this Inquiry the Commission used its statutory powers to compel the Department to produce documents and case files. The Inquiry also heard from detainees, former detainees, former employees of the Department of Immigration and also former staff from the detention centres themselves. The process was lengthy and challenging, particularly because we were working with such a vulnerable group of people, many of whom experienced significant trauma before arriving in Australia. That suffering was often compounded by their experience of detention.
 

One year after the release of the report of this Inquiry, the Government made a commitment that no children would be held in high security detention centres, and made it possible for children and families to live in community detention. However, the Commission continues to be concerned at the number of children held in low security immigration detention facilities.
 

In the absence of statutory human rights protection, the national inquiry has been an important mechanism for us to address historical and on-going practices and policies which continue to adversely impact on the lives of certain groups in Australia.

Conclusion

I will close by thinking a little about the future challenges of human rights protection in Australia. Our challenge continues to be: to improve the culture of respect for human rights within Australia; to help those who develop policy and who make decisions under Australian laws to understand how those policies can be developed and decisions made in a way which is more respectful of the human rights of every person; and in particular to ensure that those most vulnerable in our community, those who have the greatest difficulty in speaking for themselves, have their voices heard.

Much, I think, has been achieved. Life is Australia is mostly good for most of the people most of the time. But for some people life in Australia has its challenges.

There is still much that we have to do. There will always be much to do. Not because the human rights situation is not improving, but because the very notion of human rights is evolving. How we viewed fundamental human rights in practical terms 20 years ago is quite different to how we view them now.

We see that very easily if we look at the rights for women. Not that long ago, the human rights battle for women was to remove formal barriers to participation. Now, it is a much more subtle battle that is being fought to give women fuller access to the economy, to protect them from violence and exploitation and to improve the representation of women in leadership positions. Much has been achieved in women’s rights, but we still have a way to go before we enjoy true gender equality in all areas of life.

I think the largest ambition I have as President of the Australian Human Rights Commission is to strengthen the human rights culture of Australia. As our society has become increasingly diverse, we have searched more and more for what it is that holds us together as a vibrant multicultural society. It is my hope that we will begin to appreciate that ultimately what holds us together in our well functioning democracy is a universal respect for human rights. Issues of freedom, equality of the sexes, protection of those unable to protect themselves, respect for the rights of those with disability; all of these things are central to the work of human rights defenders. I want Australia to be, and I believe one day it will be, a country that says ‘we come from different cultures, from every continent in the world, but we are held together by a universal respect for the rights of every person in our community’. I think that is Australia’s human rights challenge.

Thank you.