Australian Journal of Human Rights
In the 12 months since the Member for Oxley gave her infamous maiden speech in September 1996, there has been a marked deterioration in freedom in Australia. Today, human rights are assumed to be merely the concern (and presumably to the benefit) of those crusaders known as the `politically correct'. Ordinary Australians have been led to believe that all the problems we are confronting are due to: the "privileges Aboriginals enjoy over other Australians"; Asian migrants; ethnic ghettoes; immigration; multiculturalism; foreign aid; and membership of the United Nations. Added to this is the fear, expressed in response to the second Human Rights Committee decision concerning Australia and in the Joint Parliamentary Committee Inquiry into the Convention on the Rights of the Child, that Australia's sovereignty is under threat.
As if the rise in hatred in society was not a sufficient attack on members of minority and marginalised groups, a number of political moves have been made to undermine the legal protections that have existed for those who may be victimised. The last Federal government issued a blow to the already overstretched Human Rights and Equal Opportunity Commission (HREOC) when it announced in the Budget a 43% cut to HREOC's funding. At the same time, massive cuts have been made to Legal Aid, leaving many Australians without access to the system of justice. Then, to add insult to injury, the Prime Minister is neither prepared to accept liability for the genocidal policies of previous governments nor to give an official apology to the child survivors of the Stolen Generation. And where, in the case of Wik, the High Court made a predictable and, legally, a relatively conservative decision, the government has responded with its 10 Point Plan which is possibly unconstitutional and decidedly retrograde.
This issue of the Australian Journal of Human Rights addresses the problem of the rise of hatred and inequality both directly and indirectly. We begin with Roger Dunston's article "Delivering on the promise of human rights - where are we and where do we need to be?" confronts us with questions about `this thing called human rights'. Rather than looking at gaps between generations of rights, or between rhetoric and reality, Dunston asks us to stand back and look at the complex policy implications of a coherent human rights strategy. He argues that a specific human rights policy is insufficient. Rather, if taken seriously human rights need to permeate all aspects of economic and policy commitments in order to give primacy to human, social, cultural & environmental concerns.
The primacy of economic concerns is the focus of Peter Bailey's refreshing look at the question of a right to an adequate standard of living. Bailey is concerned with legal enforceability. Analysing existing legislation and judicial approaches to human rights issues, Bailey argues that without major cost it would be possible for Australia to move immediately to enact an enforceable right to the most central incidents of an adequate standard of living in the International Covenant on Economic, Social & Cultural Rights - the right to income and housing. It is salutary, however, to step back from this optimistic note about Australia's potential to implement a most important social and economic right [which, by the way, will be the topic for the symposium in the next issue of the Australian Journal of Human Rights] and to consider the plight of some members of the Australian community for whom access to adequate nutrition has become a problem. Sandra Koller, from the Sydney-based Welfare Rights Centre, explores the impact of the two-year waiting period being imposed on new migrants under the social security legislation.
The issues confronting members of other marginal groups are taken up by a number of authors. Spencer Zifcak notes that the human rights gains made by people with mental illness, which resulted from deinstitutionalisation, have not been positively reinforced by a scheme to ensure that abuses are not replicated by the community at large. Zifcak proposes a scheme for mental health legislation and processes which he sees to be essential if the rights of people with mental illness are to be respected. Nick Poinder looks at the use of international law to support the rights of refugees in Australia. He discusses the history and effect of the second decision of the UN Human Rights Committee concerning a communication from Australia made under the first optional protocol to the ICCPR where the Human Rights Committee found that, contrary to protestations of the Australian government, the policy of mandatory detention of refugees is in breach of international law.
The question of the need to give voice to indigenous people is explored by Peter Grose, who paints a depressing picture of the Queensland government's policies for self-determination of indigenous peoples. Grose outlines a government programme which on first examination might appear to be designed to promote the rights of indigenous people. However, a closer look at the policy, and the government's own assessment of the policy, betrays a different agenda. The idea that communities should be self-governing is a noble ideal, but the form it takes in Queensland is far from that mark. Grose argues that until the community accepts cultural diversity and values difference, even well-intentioned interventionist policies run the risk of undermining rather than promoting rights and dignity.
The legacy of government policies for dealing with indigenous Australians which have included massacre and genocide, segregation, assimilation, integration and the conception of self-government described by Grose, is the starting point of Larissa Behrendt's article. She unpacks the relationship between race, gender and socio-economic status. If we are to move forward, she argues, policies need to be attuned to the complexity of social relations and designed to address horizontal as well as vertical imbalance. Two strategies which should be part of the democratic project are proposed. The first is an attenuated affirmative action programme, which overcomes the problems of traditional affirmative action programmes by being flexible and (re)directed across categories of disadvantage. The second strategy is a revision of the education process, whereby education is designed to promote the social and cultural integrity of the child and her community, while promoting a vision of equality between children. For such change to be brought about, Behrendt argues that the `objects' of social change should become participants and agents of change and that there needs to be an energised politics which is constantly changing to address emerging inequalities, so that bridges are built between different groups in the community, to create alliances promoting the acceptance of difference.
The issue of racism, and the question of what can be done to stem the tide of hatred, was the subject of a Forum on Strategies Against Racism convened by the Australian Human Rights Centre (as it was then known) and the Ethnic Communities Council of NSW in June this year. The Statement of Principles and Strategies developed at that Forum, and which are available to be used by any individual or group, are reproduced in the Cases, Commentaries and Recent Developments section of the AJHR. The issue of racism is also picked up by Carolyn Cerexhe, who looks at the role and representation of indigenous people in the native title debate, and argues that despite the Reconciliation Conference, indigenous people have little voice and are objects for discussion rather than true participants in the debate.
Women's human rights are firmly established in international law, but are not always given due weight even by human rights bodies. Elizabeth Watson provides a powerful case study of the difficulties confronting women in her discussion of the response of Amnesty International to active moves within the organisation to introduce an agenda promoting the rights of women. Amongst other things, Watson demonstrates the level of complexity involved in bringing ideological change to large Non-Government Organisations.
Recent developments on a range of human rights issues in Australia are the subject the remaining articles in this issue. Danny Sandor discusses three recent Australian decisions which highlight the gaps in Australian law with respect to parenting and reproductive technologies. The first two cases concern lesbian parents and their rights and obligations with respect to child support and the rights and obligations of the sperm donor. The third case concerns access to reproductive technologies. In this last case, the South Australian Supreme Court found that the relevant state legislation limiting access to reproductive technologies to married or de facto heterosexual couples was in contravention of the Commonwealth Sex Discrimination Act 1984.
Melinda Jones & Jo Delaney revisit the free speech issue, and consider the implications of two cases recently decided by the High Court of Australia. They argue that the 1992 free speech cases were radical in their deviation from the historical response to free speech in Australia, and that it is therefore hardly surprising that the 1997 free speech decisions step back from the more radical position. While this may be seen as a problem for political actors whose speech may be curtailed, it is as least arguably a relief to those who are concerned that the law must have power to restrict racist speech. [The role of law in dealing with Racial Hatred was the subject of a Symposium in (1994) Volume 1, Number 1 Australian Journal of Human Rights.]
It is said to be a curse to live in interesting times and the direction of human rights in Australia would seem to bear this out. While there have been some steps forward this has more often than not been followed by steps backwards. Dorne Boniface explores the plight of the Human Rights and Equal Opportunity Commission, a body which needs the strength and resourcing to address the problems confronting Australia today. It is of great concern that at a time when so much is at stake, the viability of such a major player in the protection of human rights is at risk.