Professor Gillian Triggs, President of the Australian Human Rights Commission, visited Perth earlier this week and delivered the inaugural Curtin University Human Rights Lecture.
Speaking to the theme ‘Re-imagining Human Rights in Australia’ Professor Trigg cited increased education about the topic as an essential element in improving Australia’s understanding of how human rights should be recognised and how laws should be applied.
Professor Triggs covered a wide range of topics including the need for a bill of rights in Australia, a gradual drift towards isolationism and rejection of international laws. It was suggested education could improve all Australian’s understanding of what human rights are.
Professor Trigg said the ideals of human rights had been achieved for most Australians, most of the time. Yet there were still vulnerable groups in Australian society for whom basic human rights were sometimes still an aspiration.
Australia’s leading voice on human rights listed Aboriginal and Torres Strait Islanders, people with disabilities, older Australians, asylum seekers and the LGBTI community, as groups of people who still faced challenges and needed protections.
“I suggest that Australia fails to meet our international human rights obligations under the treaties to which we are a party.” Professor Triggs said.
Professor Triggs said there are areas where Australia is in serious breach of human rights laws and we can no longer stand alongside comparable nations.
Highlighting the growing number of suicides of refugees held in detention or in the community and the ongoing detention of a large number of asylum seekers, Professor Triggs said Australia had a stark reminder of the fundamental right not to be held indefinitely.
Noting that the right to a trial and non-arbitrary detention is listed in the Magna Carta, Professor Triggs stated to the audience; “These are not modern ideas, they are ideas fundamental to every legal system in the world.”
Professor Triggs drew comparison between recent court cases in Papua New Guinea regarding the detention of people on Manus Island and a case in Australia relating to detention of people on Nauru and noted that very different outcomes resulted.
“Just two weeks ago the Supreme Court of Papua New Guinea found unanimously that detention without trial is contrary to their constitutional right to the protection of liberty, and the court called on the government to ban detention on the island,” Professor Triggs said.
“But some weeks earlier the Australian High Court ruled, in the M68 case on the constitutional validity of the government’s migration act – relying on the removal of asylum seekers to Nauru for processing – were being deprived on their liberty. The court found that the legislation was constitutionally valid, so long as the detention was reasonably necessary for the purposes of processing.”
Professor Triggs said it was notable that none of the seven judges made any reference to Australia’s international obligations. The Human Rights Commission’s president questioned why one decision was made under Papua New Guinea’s more modern 1975 constitution, while another outcome was the result under Australia’s older constitution.
“Why is it that Australian law fails to provide protection for fundamental freedoms when we are such a successful multi-cultural democracy with such a strong common law system that values the rule of law?” Professor Triggs asked.
Professor Triggs pinpointed 2001 as a turning point for how Australia approached human rights. The professor argued that following the ‘Children Overboard’ controversy, the Tampa saga and the terrorist attacks on the Twin Towers and the Pentagon in the United States, Australia has changed the way it looks at human rights.
“What we have seen is a conflation by political leaders of these questions of asylum seeker rights and of fear of terrorism. Used and abused I believe throughout the world, but perhaps especially in Australia.
“What we have seen is a steady growth in federal executive and ministerial discretion that is not for practical purposes review-able by courts.
“Parliament has failed in it’s responsibilities to provide a check on the executive power of government, and it’s diminished the judicial role of judges, threatening the principle of the separation of powers and distorting the ‘checks and balances’ between executive government, parliament and the courts.” Professor Triggs said.
Professor Triggs highlighted that the High Court’s Chief Justice Robert French had recently described the slow erosion of traditional rights and freedoms as “a death by a thousand cuts”.
“Many such encroachments, taken individually, arguably have little effect. Taken cumulatively over time and across state, territory and commonwealth jurisdictions they can be the death by a thousand cuts of significant aspects of those rights and freedoms.” Cheif Justice Robert French said at his State of the Judicature address.
The head of the Australia’s Human Rights Commission said Australian exceptionism had lead to the slow and gradual slide of executive overreach in the absence of judicial oversight.
“The failure over many decades of effort to implement Australia’s human rights obligations into its domestic law has left a legacy of of isolation from global human rights laws and jurisprudence.
“Australia’s approach to human rights stands in stark contrast to other comparable legal systems where human rights commits are reflected in domestic laws, in their constitutions and in bills of rights that limit the power of parliament to authorise the executive to act inconstantly with the nation’s international obligations.” Professor Triggs said.
Professor Triggs said historically Australia had a proud history of being at the forefront of developing international human rights law and it was only in the last 15 years that the country had taken a different approach.
Concern was also raised about Australia’s reaction to criticism from the United Nations, where issues raised were either rejected or simply noted. Professor Triggs said “noted” was diplomatic code for saying “nothing much is going to happen.”
Professor Triggs said Australia needs to re-open discussions about creating a legislative charter for rights. While a change to constitution was unlikely, Professor Triggs said there were other legislative pathways open to Australian governments.
“It’s not a popular issue.” the professor said, “Australian’s have been sadly mislead into believing that if we had a charter of rights at the federal level that that would give our judges an unrestricted right to rule and be activist judges to create new laws.”
Professor Triggs said many Australian parliamentarians highlight the case in America where same sex marriage was created through the Oberfegell decision and have concerns that a bill of rights would lead to judges making decisions that could have a national significance.
Professor Triggs said a discussion about how we bring Australia into the international human rights discussion is essential and increased education on the topic is needed to facilitate the conversation.
