More than a year has passed since the Federal Government officially bypassed the National Human Rights Consultation Committee’s recommendation that Australia adopt a federal Human Rights Act, and instead launched its Human Rights Framework.
The framework is comprised of a number of initiatives including human rights education, federal public sector training, funding for NGOs and the Australian Human Rights Commission, streamlining of federal anti-discrimination laws, and the creation of a parliamentary committee to monitor compatibility of legislation with international human rights obligations.
Last week Attorney-General Robert McClelland addressed the NGO Forum on Human Rights, an annual symposium pledged as part of the framework. In his speech (pdf), McClelland outlined what he described as "significant progress" by the government: proposals before the federal Parliament for legislation that will require ministers to address human rights compatibility when introducing new laws; human rights education for federal public servants to promote cultural change; the creation of a stand-alone Age Discrimination Commissioner and the separate role of Race Discrimination Commissioner; reforms to the Sex Discrimination Act 1984 and funding for various anti-violence initiatives. Unsurprisingly, the Government’s stance on same-sex marriage, and policies for bridging the gap in Indigenous communities and proposed off-shore processing of asylum seekers, were not on the agenda.
One year on, implementation of the Human Rights Framework has commenced. Human rights education grants were given to 15 NGOs around Australia during the 2010 to 2011 funding round.
McClelland’s commitment to educating the federal public service is clear but similar initiatives need to reach further into the community. The Castan Centre for Human Rights Law, a Melbourne-based research centre specialising in human rights scholarship, has emphasised that education is key to creating cultural change and that it is most effective when it starts in schools — and is underpinned by a domestic Human Rights Act.
Extra funding for the Australian Human Rights Commission (AHRC) is welcome but it’s worth noting that the AHRC has a very broad mandate to fulfil. It is encouraging that human rights NGOs have been given funding to undertake education initiatives in their communities. Still more uniform and comprehensive reform must follow in this area — such as human rights education specifically targeted in key areas such as primary and secondary schools, and then expanded to metropolitan and regional community hubs around Australia.
The preliminary rollout of funding allocation in accordance with the framework’s objectives is a positive step, as is the recent funding for separate Discrimination Commissioners in the areas of age and race discrimination. Progress in the area of anti-discrimination certainly requires targeted and specific measures, and this is implicitly recognised in these forthcoming appointments.
In December 2010, McClelland’s office released a background paper for its proposed National Action Plan on Human Rights and indicated that it intended to release a draft action plan and baseline study later this year for public consultation. The final versions will be released in December 2011.
The reference to a baseline study is a nod to United Nations terminology. This ties into repeated calls for Australia’s increased compliance with its international human rights obligations. Inexplicably, it also invokes the recent Universal Periodic Review of Australia before the United Nations Human Rights Council (UNHRC). Australia’s UNHRC report card contained a total of 145 recommendations; including that it adopt a federal Human Rights Act, and improve in the areas of Indigenous affairs, gender equality and mandatory detention of asylum seekers.
Any national action plan on Human Rights will be strictly non-binding, of course, and lack any measure of accountability or practical enforcement. Private sector corporations have habitually published voluntary codes of conduct — but for which no mechanisms actually exist to ensure compliance. One view is that these publicised non-binding statements are public relations exercises in disguise. Another view is that these types of soft agreements may crystallise into hard law in future, if norms are widely accepted.
Another point to make is that there has already been substantive research conducted into Australia’s unmet human rights obligations to date such as the the National Human Rights Consultation Committee report. Over the years, specialist human rights NGOs, institutions, centres and concerned individuals have submitted volumes of reports to brief the government on various human rights issues. And yet here we are, about to conduct another "comprehensive assessment of human rights needs in Australia".
It is difficult to assess the Gillard Government’s response to human rights in an independently objective manner if the benchmark is a self-established framework. The framework is comprised of what the Government considered feasible to undertake in practice. Human rights assessments should not be confined to domestic and political benchmarks — otherwise it looks like an exercise in box ticking.
Australia has signed and ratified international treaties which impose substantive human rights obligations. These international obligations are consistently referred to in submissions to the government on human rights issues but to date, the response is only a proposal to monitor federal legislation in accordance with international duties. International treaties must be incorporated into domestic legislation before they become binding. Parliamentary monitoring of proposed legislation is a long way from creating legislation to give effect to international obligations.
Furthermore, Geoffrey Robertson QC has noted that a government auditing its own practices lacks the requisite arms-length independence: "Only a charter can do that; if a charter were in place, the courts would operate as true auditors, either by interpreting ambiguous legislation in conformity with human rights, or by declaring it incompatible with the rights guaranteed by the charter and referring the matter back to parliament. That is a real audit."
Human rights law must ultimately be directed to the protection of the inherent rights and dignities of individuals. Obstacles to the realisation of these principles in practice are firstly, that concepts of human rights that are universal and uniform in theory can be politically stalemated into virtual non-existence; and secondly, that even if laws are created, proper enforcement mechanisms are usually conspicuously absent. An omnipresent concern in this area is that human rights issues are discussed and "officially" put on the table — but not actually followed up by substantive reforms or concrete changes.
Australia has taken some rudimentary steps towards the broader promotion of human rights dialogue through its Human Rights Framework. But let’s hope that this evolves into a substantive political commitment to a federal Human Rights Act — one inclusive of uniform protections, real accountability through independent judicial oversight, and enforceable rights.
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