All Right for Us, But Not for Them: Selectivity in Australia’s Human Rights Protection

Whether it’s our treatment of asylum seekers or the current debate around free speech, we seem to be confused about the notion of free rights for all. Australians care about human rights, but we’re also dangerously complacent about the lack of protections that exist - and conflicted on the question of who deserves human rights protection.

Looking back into our rights history to examine today’s issues, Hugh de Kretser outlines a vision for stronger, universal protection of rights in Australia.

Australians care about human rights and making sure they are properly protected.

A major survey conducted as part of the National Human Rights Consultation (2009) confirmed that most Australians think human rights are important and a majority support stronger rights protections, including an Australian Human Rights Charter.

It also confirmed most Australian want to know more about human rights and they want both the government and the courts to protect rights.

But dig deeper and our support for human rights depends on who the humans are.

when it comes to rights protection, there is a hierarchy of sympathy in public opinion.

The survey asked 1200 randomly selected Australians whether the amount of protection given to some groups should be more, less or the same as it currently is.

About three quarters of respondents thought that the disabled, the elderly and people with a mental illness need more human rights protection than they currently get.

A slim majority thought that children and Indigenous Australians living in remote areas need more protection.

Less than a third thought gays and lesbians need more protection.

And more respondents thought asylum seekers need less human rights protection than more. In other words, there’s more community support for stripping back asylum seeker protections than there is for increasing them.

A hierachy of sympathy

The results confirmed what many might intuitively suspect – that when it comes to rights protection, there is a hierarchy of sympathy in public opinion.

But more than that, there is also a perception that our rights aren’t threatened.

For many Australians, human rights violations are something that happens to other people in other places: either to people overseas in Syria, North Korea or the Congo; or to people living in very different life circumstances; in remote Aboriginal communities, detention centres, aged care facilities or psychiatric institutions.

Only 10% of survey respondents reported they had ever had their rights infringed in any way and only another 10% reported that someone close to them had their rights infringed.

This is good news for the 90% who say their rights haven’t been infringed. It should genuinely be celebrated – and it probably leads to the next survey finding, that 64% of people agreed that human rights in Australia are adequately protected.

This, I think, is plainly wrong.

Rights aren’t adequately protected in Australia

The perception that rights are adequately protected sits uncomfortably against:

· the large gap in life expectancy between Indigenous and non-Indigenous Australians

· the fact that Indigenous Australians are 15 times more likely to be in jail than non Indigenous Australians

· the 100,000 or so homeless people in Australia

· the fact that less than 10% of directors in the 200 largest publicly listed companies are women

· the fact that around 1 in 3 Australian women over 15 has experienced physical or sexual violence

· the even higher rates of sexual violence against women with cognitive disabilities – mental illness, acquired brain injury and intellectual disability

· the research showing Australians with foreign sounding surnames are less likely to secure job interviews

· the high rates of verbal and physical abuse and discrimination experienced by gay, lesbian, bisexual, transgender and intersex Australians

· the 1,000 or so children detained in immigration detention

I could go on.

The only reason my father’s family was able to immigrate to Australia in 1949 under the White Australia policy was by proving their European heritage – tracing our lineage back to the Dutch sailor Cornelis de Kretser in the 1600s.

We ran some figures comparing imprisonment of Aboriginal and Torres Strait Islander men with higher education enrolment.

Indigenous men between the ages of 18 and 34 are more likely to be in jail than enrolled in higher education (and that includes TAFE). In 2010, there were 4530 Indigenous men in this age group in jail – but only 3745 Indigenous men of any age enrolled in higher education.

Compare this with non-Indigenous men and the picture is dramatically different: 10,367 men in this age bracket in jail compared with around 380,000 non Indigenous men of any age in higher education – and that’s excluding international students.

While Indigenous imprisonment rates are getting worse, it is good to see improvements in the rate of Indigenous involvement in higher education.

Looking back to look forward

Relative comfort on rights protections is nothing new.

Former Prime Minister Robert Menzies proclaimed in 1967 that ‘the rights of individuals in Australia are as adequately protected as they are in any other country in the world’. He meant what he said – as did other commentators who made similar statements.

With hindsight, we can look back and point to the gaping holes in these sentiments. The government policies until the late 1960s that caused the forced removal of Aboriginal children from their families. The criminalisation of consensual homosexual sex. The White Australia policy. Entrenched institutional sexual discrimination. And the fact that, in 1967, it was perfectly legal to refuse to employ someone because of their race, religion or sex – because there were no anti-discrimination laws or equality protections in the constitution. (Except in progressive South Australia, which introduced the first racial discrimination laws in 1966.)

I have no doubt that in 40 or so years, Australians will look back on today’s society and think, What were they doing?

My father’s family are Dutch Burgher Sri Lankans – the descendants of Portuguese and Dutch colonial settlers who arrived in Sri Lanka in the sixteenth and seventeenth centuries and who are of mixed European and Sri Lankan descent.

The only reason my father’s family was able to immigrate to Australia in 1949 under the White Australia policy was by proving their European heritage – tracing our lineage back to the Dutch sailor Cornelis de Kretser in the 1600s.

But apparently the arrival of ‘European’ Sri Lankans with non-European appearance caused some consternation. In August 1951, the Department of Immigration issued guidelines to the Australian High Commission in Colombo which advised that it ‘should not authorise the entry of persons who are likely to cause adverse comment on arrival here or be restricted from landing by immigration officers at the ports, as being predominantly non-European in appearance’.

One of the best cases that shows how far we’ve come involved a Victorian pilot, Deborah Wardley, who applied in the late 1970s to become the first female pilot at Ansett.

Ansett refused her application. The general manager wrote : ‘Ansett has adopted a policy of only employing men as pilots. This does not mean that women cannot be good pilots, but we are concerned with the provision of the safest and most efficient air service possible. In this regard, we feel that an all-male pilot crew is safer than one in which the sexes are mixed.’

She challenged the refusal to employ her under (then) recently enacted Victorian anti-discrimination laws; she won and went onto a successful career.

So we can look back in hindsight and be shocked at these attitudes and the lack of protections.

But in a similar way, I have no doubt that in 40 or so years, Australians will look back on today’s society and think, What were they doing?

There was majority support for same-sex marriage yet neither major party supported it.

They locked up thousands of refugees fleeing persecution, arbitrary detention and torture in remote detention camps in Australia or outsourced the detention and rights abuses to former colonies in the Pacific.

They had one of the strongest economies in the world and yet income inequality was increasing, the gender pay gap was increasing and babies born to Aboriginal mothers died at twice the rate of other Australian babies.

Challenging our selectivity

The challenge for us, as human rights advocates, is how to broaden the realisation that while most Australians are doing well, there are some who aren’t.

The challenge is how to change ’human rights for some, but not others‘ to ‘human rights for all’.

Human rights issues impact on all of us, every day. Being stopped for a random breath test or receiving a parking or speed camera fine that reverses the presumption of innocence against the registered owner of a car are two minor, common examples or rights issues – where, I should say, the balance drawn on limiting rights is appropriate.

When we get old, many of us will get dementia. Rights issues then become more acute – what does the law say about when do we lose the ability to make our own decisions about how we spend our money, where we live and what medical treatment we receive? And about who makes decisions on our behalf when we do?

But while rights issues affect all of us, they affect some more than others – and in more intense ways.

For me, my immediate experiences working in a community legal centre brought home the lack of human rights protection in Australia.

Rights and privilege

I had a privileged upbringing: attending a private school and studying at Melbourne University.

I studied human rights in the abstract: studying the Holocaust as part of my arts degree and studying human rights law as part of my law degree.

I went on to work in one of the top corporate law firms where large corporate clients had almost limitless resources to get the best advice.

The law firm generously agreed, as part of its admirable commitment to pro bono work, to loan me for six months to work in community legal centre in Deer Park, in Melbourne’s West. This is where I got my real human rights education.

One of my first clients was a Roma – a gypsy and a real gentleman. He told me childhood stories of being moved, as he said, ‘from pillar to post’ wherever his family went – people complaining to the police about them and then being moved on. They never stayed in the one place for more than three months. He never received an education and as a consequence, he couldn’t read or write. He came to see me because his wife needed dialysis; he’d drive her to hospital several times a week, but couldn’t read the parking signs properly and repeatedly received parking fines.

Another client was a young man who was a heroin addict and ended up in jail, where he was bashed by prison guards. After he was released, I took a statement from him in his mother’s house about the bashing. I remember his mother crying as he told me what happened to him and how he’d now become a hardened criminal.

Other clients were victims of childhood sexual abuse; often I was the first man they ever told what had happened to them. They’d tell me how hard it was to trust people and live a normal life and how they overprotected their own children. One of them, whose stepfather had filmed the abuse, shared her fears that the images of her abuse were circulating on the internet – and how this impacted on her whenever a child pornography arrest aired on the news.

Other clients were victims of family violence or random street violence, or were struggling with debt issues, relationship breakdown or ill health.

I’d see these clients by day, and live my comfortable life at night and on the weekends – and it made me uncomfortable, which is a good thing. The experience perhaps reflects the reality of human rights protection in Australia. Rights, in practice are enjoyed by many of us but for some they aren’t.

For me, my immediate experiences working in a community legal centre brought home the lack of human rights protection in Australia. 

Majority public support certainly makes rights protection easier. But the protection of human rights shouldn’t have to rely on majority support.

For some, this experience is far more personal and comes through their own existence as person with a disability, a migrant or a victim of violence.

For others it comes through proximity to these people – caring for a relative with dementia, seeing a friend discriminated against, working in a sexual assault crisis centre.

We need to communicate this experience, through the media, through social media, through education, through volunteering, through forums like this to broaden the support for tackling these issues.

Majority and minority support

At my first national community legal centre conference in Hobart in 2003, I sat next to leading gay rights activist Rodney Croome at dinner. Rodney played a leading role in the campaign in the late 80s and early 90s to overturn Tasmanian laws that made consensual gay sex illegal – with a penalty of up to 21 years jail.

I’d read about the campaign’s successful complaint to the UN Human Rights Committee, which ruled that the laws violated international human rights protections.

I wanted to talk to him about his success in proving the unjust local laws violated international law. But he wanted to talk to me about how they won over public opinion in Tasmania. How over the course of their campaign they turned minority support into majority support through a mixture of education, advocacy – and the legal cases. How Tasmania is now leading Australia on legal protections against discrimination on the grounds of sexual orientation and gender identity.

Majority public support certainly makes rights protection easier.

But the protection of human rights shouldn’t have to rely on majority support.

Human rights tend to matter most when they lack majority support, whether it’s asylum seekers, people charged with terror offences or people in prison and our society as a whole is diminished when the rights of vulnerable minorities are undermined.

Protecting human rights in Australia

The key human rights treaties which bind Australia and over 160 other nations around the world embody the fundamental principle that rights are universal – they attach to all of us by reason of our being human, regardless of popular support.

These treaties stem from the landmark 1948 Universal Declaration of Human Rights – a document forged from the horrors of World War II where the Nazis treated the Jews as less than human.

The two key treaties enjoy bipartisan support: the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. The Whitlam government signed them and the Fraser government ratified them; both steps were required to bind Australia.

These treaties and the rights set out in them are intended to place limits on government actions. They protect against popular will overriding the fundamental freedoms of a minorities.

Yet the treaties aren’t adequately incorporated into Australian law. International law doesn’t automatically become incorporated into domestic Australian law when we ratify a treaty. It needs to be implemented by legislation passed by the federal or state parliaments.

And the principal way to implement key international human rights is through a Human Rights Charter or Bill of Rights.

Unlike every other western nation, unlike the UK, Canada, the US and New Zealand, we have no legislative or constitutional bill of rights. Instead, we rely on a patchwork of individual pieces of legislation and judge made common law. And the patchwork has holes in it, with key rights like freedom of speech, privacy and freedom from arbitrary detention suffering from inadequate protection.

We’ve come a long way (and have a way to go)

We have come a long way in protecting rights in Australia, but the advances in our rights protection didn’t come easily at the time. Yet, they are easily taken for granted now.

Today, it is clear that there is still inadequate rights protection for some groups – particularly where those groups don’t enjoy majority support.

I’m confident we’re seeing a positive evolution of rights protection in Australia. But if we want to realise the promise of human rights for not just some, but all, we need to do more.

How can we improve rights protections in Australia? We need better education about human rights, a stronger human rights culture within government and the broader community – and an enforceable Human Rights Charter or Bill of Rights.

Portrait of Hugh de Kretser

Hugh de Kretser is the Executive Director of the Human Rights Law Centre. He has worked on family violence, sexual assault and criminal justice issues for over a decade across his current role and previously as Executive Officer of the Victorian Federation of Community Legal Centres (2007–2013) and Manager of the Brimbank Melton Community Legal Centre (2004–2007).