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Commission missing in action when itcomes to human rights

by: Sev Ozdowski From: The Australian June 17, 2013 12:00AM

IN 2007 human rights activists welcomed the return of a Labor government thatpromised to legislate for an Australian Bill of Rights, remove the evils of mandatorydetention for asylum-seekers, enhance the role of the Australian Human RightsCommission and introduce new measures to advance our freedoms. Labor has clearlyfailed to deliver on this agenda.

The promise to introduce a Bill of Rights, after extensive consultations that overwhelminglyendorsed the idea, was pushed aside, and the 2010 Human Rights education programreplacing it was discontinued after a short period of operation. The draft legislationconsolidating five anti-discrimination laws was so confused it had to be withdrawn. Mostworrying, Australia's asylum-seeker policy has been so mismanaged that detainees now facea bleaker future than under John Howard, with over 5000 people, including children, indetention facilities.

The confusion facing human rights policy has been created by Labor's attempt to redefinehuman rights to suit its ideological priorities. Anti-discrimination and egalitarian measureshave been broadened and civil liberties neglected. This approach is illustrated by Labor'sshocking attitude towards the media and freedom of expression. Most worryingly, our national human rights watchdog, the Australian Human Rights Commission, has embracedthe government's ideological position.

Australia's first Human Rights Commission was created by the Fraser government, with itsinitial function arising from the International Covenant on Civil and Political Rights. The five

pieces of legislation focusing on egalitarian rights were added later. Despite its origins, our commission is missing in action when important civil liberties are under threat. Consider the

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2011 prosecution of Andrew Bolt under the Racial Discrimination Act over an article hewrote about access to grants reserved for Aboriginal Australians. Given the significance of the case, one would assume that the Human Rights Commission would be interested in howthe court interpreted the legislation, and would wish to assist with specialist advice. The casecertainly met the commission's own amicus curiae guidelines, yet they made no

representations to the court.

The Human Rights Commission was also quiet when former attorney-general Nicola Roxon

wanted to outlaw, as discrimination, any actions or words which have made others feeloffended, and proposed shifting the burden of proof in discrimination cases from the accuser to the accused. It required former Whitlam adviser and former NSW chief justice JamesSpigelman to remind the commission in his Human Rights Day oration that "the freedom tooffend is an integral component of freedom of speech", and that "there is no right not to beoffended".

The Australian Human Rights Commission also failed to argue, with sufficient vigour, for thefreedom of expression when the government planned to create statutory media regulation inresponse to the Finkelstein inquiry into print media. It was left to Liberty Victoria, the NSWCouncil for Civil Liberties and other non-government organisations to identify the structuraland conceptual flaws in the draft legislation, and to campaign against it.

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In its December 2012 submission to the Senate Legal and Constitutional Committee about theHuman Rights and Anti-Discrimination bill, the commission agreed with the governmentover the abolition of the position of Human Rights commissioner, and supported maintainingthe existing positions dealing with discrimination.

When the commission does take a public stance, it emphasises the limits to free speech, or focuses on discrimination or a range of social welfare issues. Approaching human rights thisway contributes to a culture of dependency on the state and promotes a feeling of "victimhood", undermining the focus on independence and civic duty that arise from a strongcivil rights culture.

In the first major speech by the newly appointed National Children's Commissioner, MeganMitchell she expressed her concerns about "socio-economic needs of certain vulnerablegroups of children", missing the fact there are scores of federal and state agencies with thesole responsibility of looking after disadvantaged children. She did not speak about thefreedoms that will impact on their lives: the right to participate in the political process,freedom of opinion or religion, and turned a blind eye to the imprisonment of numerouschildren in detention in Manus Island and Nauru. The rights of a 13-year-old girl recentlyaccused publicly of racism were not mentioned.

The dilemma is partly caused by the de facto abolition of the position of Australian HumanRights Commissioner, whose mandate was largely defined by the International Covenant onCivil and Political Rights. After my appointment as Human Rights Commissioner expired in2005, there was no attempt to fill this position on a permanent basis and it has nowdisappeared from the commission website. This despite the position still being recognised bythe AHRC Act of 1986.

This was noted by the shadow attorney-general George Brandis, who recently said "thisgovernment is engaged in a multi-front war against the traditional liberal conceptions of freedom of speech", and that Australia's human rights culture is being changed to reflectLabor priorities. It was heartening to hear Senator Brandis's promise to create a new positionof "freedom commissioner" to focus on civil liberties and freedoms, especially on freedom of expression.

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Since 2007 the Human Rights Commission has pursued a highly selective and ideologicalagenda, and, as far as civil liberties are concerned, it has become the government's lapdog. ALiberal government needs to restore the balance between civil liberties and egalitarian rights,which can only be achieved by restoring the position of Human Rights Commissioner and the

provision of powers to discharge their responsibilities. Such powers would require theenactment of legislation to incorporate the International Covenant on Civil and PoliticalRights into Australian law; just as we did in the past with international anti-discriminationinstruments.

Sev Ozdowski was human rights commissioner from 2000-05

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