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REFLECTIONS ON THE HUMAN RIGHTS BILL

Updated: Oct 3, 2023

IWD Catholic Archdiocese event, Canberra Seniors Centre Turner 9 March 2023 Speech by Dr Helen Watchirs OAM, ACT President & HR Commissioner



Happy International Women’s Day everyone (with theme #Crackingthe Code)! Thanks Sister Clare Condon and Andrea Dean for your kind invitation to speak. I would like to begin by acknowledging the traditional custodians of the land on which we meet today, the Ngunnawal & Ngamberi people. I respect their continuing culture, protected under s27(2) of the HR Act (please distribute copies for everyone) - the oldest culture in the world at over 65,000 years & the contribution they make to the life of this city Canberra & this ACT region. I pay my respects to elders, past, present & future. I support the 2017 Uluru Statement from the Heart & a Voice to Parliament enabled by the Constitution, & Makarrata Commission to supervise treaty-making & a process of truth-telling about our history. I also acknowledge any Aboriginal & Torres Strait Islander people who are attending today’s event.


Personal story & background

I consider myself very privileged to have served the ACT community for the last 19 years as Commissioner & President for 7 years. I also consider myself lucky to be the first member of my family of six children (I’m the youngest) to receive a University education (& 3 older siblings subsequently studied at University). More unusual is that our parents did not go to high school during the Depression years, despite being very bright (in fact my mother was dux of her rural primary school). I am very grateful for my education as I think it is the transformative ladder of opportunity in life. In fact I spent more time at University getting four degrees (plus a second honorary PhD) than 13 years in school!


I have worked for 41 years as a human rights lawyer, with my interest probably sparked from growing up in Sydney’s Western suburbs where our neighbours in Guildford were refugees from Vietnam & Lebanon, who moved from nearby Villawood (later a detention centre), and directly witnessing the inequality they faced. Universities were free in the 1970s-80s and the availability of Austudy’s predecessor (TEAS) meant that working class people like myself could access higher education. I moved out of home to campus when I was 20yo to avoid the daily three hours commute to the University of Sydney. I had many part-time jobs to support myself – shop assistant (milk bar & pharmacy), usher at ABC classical music concerts, factory hand at Fairfax newspapers, tea lady, clerical assistant, & a paralegal.


I did dream of working for the United Nations as a law student in 1977-81 & am glad I was able to achieve that goal 26 years ago in 1997, but I did not expect to one day be President of a Human Rights Commission, albeit in the small jurisdiction of the ACT (the Australian Human Rights Commission in Sydney is larger with well over 100 staff). I think that my determination & resilience comes from growing up in a disadvantaged & culturally diverse area. I feel passionate about equality, & treating everyone with dignity & respect, no matter what their background is. Prejudice unfairly blocks other peoples’ opportunities, & are usually irrelevant to most areas of public life, such as workplaces & service provision. I’m not afraid of controversy, as it is inevitable in recommending change for the better, whether it’s the humane treatment of people in detention at the Alexander Maconochie Centre prison or Bimberi youth detention centre, or need for law or policy reform in areas such as homelessness, family violence, gender diversity, Voluntary Assisted Dying, anti-terrorism, organised crime, sex work, fair trial, mental health, public health, racial/religious vilification.


I have been asked to speak briefly about my faith, as I was raised Catholic (my mother converted from the Anglican religion after I was born). I attended St Patrick’s primary school in Guildford Sydney and Our Lady of Mercy College in Parramatta. My mother ran the primary school tuckshop as a volunteer for 30 years, & my father was President of St Vincent de Paul in Western Sydney. My daughters are now 29 & 30yo and we sent them to St Bede’s primary school in Red Hill, as well as St Clare’s College in Griffith, as I have always been committed to growing family in a strong community. When you experience life crises I think it’s natural for your faith to be challenged, & this happened to me when I lost my parents, and later my husband in 2007. I always struggled with Catholic rules not permitting women to be priests, as I was very fond of nuns (St Josephs expected that I would be one!) I did not expect to covert to Buddhism – my sister (she is the eldest & I am the youngest) has been Buddhist for fifty years & I knew meditation was a great comfort to her.

When we lost two of our four brothers, her teacher recommended that we do a four-week pilgrimage in Northern India, which we did together in July 2015 & where I converted to Buddhism. I was acutely aware of the fallout from the Royal Commission into Institutional Reponses to Child Sex Abuse appointed in 2012 & which made powerful recommendations its Final Report of 2017. Francis Sullivan worked very hard in an extremely difficult job to try and make the Church respond adequately. I think until women are able to be priests, the male hierarchy is inherently problematic in preventing & responding to sexual abuse of children, as well as adults. The real power of the Catholic Church is the strong community like today’s Archdiocese IWD event in gathering together people of like minds & deep values to achieve much, eg charitable works for vulnerable people in generally hard times like COVID lockdowns, or giving care for each other at personal times of illness or grief.

Introduction HRC

The HRC was established in 2006 under Human Rights Commission Act 2005 when it merged with Health Complaints & in 2016 it merged with the Public Advocate & VOCC, and now includes three more members than myself:

• Karen Toohey – Discrimination, Health, Disability & Community Services Commissioner;

• Jodie Griffiths-Cook - Public Advocate & Children & Young People Commissioner;

• Heidi Yates - Victims of Crime Commissioner, including Victim Support.

The Human Rights Act overarches all our work as an ACT public authority with just over 100 staff – in 2004 when I started, we only had 5 staff. By covering other jurisdictions like Health Complaints, Public Advocate & Victims of Crime jurisdictions, we help people to have access to practical remedies for human rights issues other than discrimination (eg racism), like privacy protection in terms of health treatment (eg informed consent & access to medical records), & therapeutic treatment & compensation for victims of crime. Having a one-stop shop means we warm cross-refer clients experiencing vulnerability within the HRC.


Women’s Rights & Sexual harassment

There has been a long struggle to achieve equal rights for women & we have come a long way over the last 50 years. My Godmother was eventually allowed to return to work as a secretary in the Federal ATO when the marriage ban was lifted in 1969 (I was 10yo) when ‘equal pay’ was won for women, or was it? How far have we come in human rights terms? In 2023 there is a 13.3% pay gap between men’s & women’s wages & 23% super gap - Anne Summers calls it a ‘gender tax’. Achieving equal rights for women is still a work in progress, but women’s rights are advancing eg national paid maternity leave scheme in 2011, & recent reform to make parental leave more flexible.


I’m sure many of you, or your mothers & grandmothers have war stories of gender discrimination & sexual harassment from the 1980s - I certainly do. One is about a 1982 job interview (my first) at a big Sydney law firm where one interviewer (of 3 middle aged males) asked me ‘what form of contraception are you taking?’ I didn’t want to answer question, and was offered a job the following week at the Australian Law Reform Commission on Privacy reference with the inspirational Justice Michael Kirby. In 1983 a very senior State law officer met me in a Sydney hotel lobby & asked ‘would you like to be interviewed in my hotel room upstairs?’ which I politely declined. In 1986 a Public Service manager once asked me ‘how about it?’- not unusual in those days, apart from the fact that it was at my own Engagement party!


I want to talk to you briefly about the work of the Repect@Work National Council, which I joined as a member last year. It was formed to implement 23 of the 55 recommendations of the 2020 National Inquiry into Sexual Harassment in Australian Workplaces by impressive Sex Discrimination Commissioner, Kate Jenkins. Former Government’s response was tabled in April 2021, with PM Scott Morrison describing it a ‘game-changer… it is changing the very narrative’. A huge whole of community response needed to maintain momentum for deep cultural reform & systemic change for entrenched issue of sexual harassment, which is not just a ‘woman’s issue’- it belongs to everyone to make their contribution to solving (similar to family & domestic violence). The Report & Council’s work are globally ground-breaking initiatives in their depth of insight & breadth of coverage, to recognize & implement the human rights of workers, in all industries & all sizes of workplaces. We know sexual harassment has profound impacts on individuals, causing long & short-term physical, psychological & financial harm.


Sexual harassment according to 2018 Deloitte economic modelling costs $3.8 billion annually (with $2.66 billion due to lost productivity), so it also makes good business sense to address this pervasive issue. The 2022 AHRC 5th Survey: Time for Respect of 10,000 respondents found over 77% of adults aged over 15years (89% of women & 64% of men) had experienced sexual harassment in their lifetime - one third of workers had experienced sexual harassment in the last five years. Disturbingly only 18% made formal reports or complaints to their employer or external bodies eg HRCs – 40% of those who complained said there were no changes to their workplace, & 24% said that there was no consequence for the harasser.


I’ve been impressed with increased collaboration, coordination, as well as consultation & leveraging shared expertise as a result of the Council’s work involving legal & regulatory agencies. The ideal for our regulatory model is to have safe, respectful & productive workplaces, and having no wrong door for complainants, with improved referral pathways from bodies like Fair Work Ombudsman, Fair Work Commission, Comcare, WorkSafe & HRCs, with clarity & consistency of prevention & response, to promote safer workplaces & reduce undue burden on employers & victims. I’d like to draw your attention to the Respect@Work new online portal which contains over 150 valuable resources: Resource Hub | Respect@Work (respectatwork.gov.au). Resources focus on the meaning, definitions & impact of Sexual Harassment, including: videos & online training; legal frameworks (State/Territory); role of workplace culture in prevention; responsibilities of employees & employers to prevent & respond adequately; victim & bystander support strategies; how to talk with colleagues about sexual harassment prevention & response; External Pathways Guides; workplace assessment tools; target group resources eg Youth Law; industry-specific Guidelines & case studies; Attorney-Generals Department’s Guidance for non-disclosure clauses; Good practice indicators to measure prevalence, prevention, protection & response; & Fact Sheets. The timing of this proactive work has been helped by women such as yourselves, local leaders like Grace Tame & Brittany Higgins, and #MeToo# movement. We owe it to our children & future generations to stop Sexual Harassment, and end sense of entitlement & impunity of perpetrators.


Need for National HR Act

Australia has a proud tradition of equality, the Westminster system of government, common law and rule of law. However, I think Australians have been genuinely shocked by findings of Royal Commissions into government services, such as Robodebt, Aged Care, & Disability (NDIS). Many Australians are surprised how little our outdated 1901Constitution is – it only protects five of our fundamental rights –

  1. right to vote;

  2. trial by jury (in States);

  3. freedom of religion;

  4. prohibition of discrimination on the basis of State residency;

  5. protection against acquisition of property on unjust terms; &

  6. implied freedom of political communication (since 1992).

There are no amendments like ‘pleading the 5th’ (self-incrimination) that we hear of in US crime shows on Netflix. Australia remains the only Western democracy in the world without a statutory or Constitutional Bill of Rights. This is also compounded by Asia Pacific region lacking a human rights regime: (cf. European Convention 1950, American Convention 1967, & African Charter 1981).


The UN was founded on the platform of security and peace being intertwined with human rights protection following the horrors of genocide in World War II, with the UN Declaration of Human Rights 1948 including civil & political rights as well as economic, social & cultural rights. Australia was at the forefront of creating the international human rights regime with key players like Doc Evatt (who was President of UN General Assembly in 1948), Jessie Street & Elizabeth Evatt. However, we have been fittingly admonished by the Human Rights Committee in Geneva for our ‘chronic non-compliance’ with its recommendations relating to mandatory detention of children, asylum seekers and refugees offshore, as well as the deepening disadvantage of Aboriginal & Torres Strait Island people. In February 2023 the UN Sub Committee on Prevention of Torture cancelled its failed trip to Australia in October 2022, due to lack of compliance with OPCAT inspection requirements by authorities in NSW (Queanbeyan Police Watch House) & Queensland (mental health facilities). OPCAT entered into force nationally on 20 January 2023, after formal ratification back in 2017 by Australia, so we’ve had plenty of time to prepare. The only other country that has had a visit cancelled by UN SPT is Rwanda, so we’re not in good company in terms of human rights compliance.


Free & Equal Conversation 2019-23

The Australian HRC’s 4-year project coming to fruition this year is called Free & Equal: An Australian conversation on human rights, about what kind of values we invest in & what future we want for coming generations. On 7 March 2023 I attended the launch by the Australian HRC of its Position Paper Report in Sydney, & in December it will launch a Final Report. Free & Equal looks at how the whole human rights system works together, and what gaps there are in accountability in order to fulfil our international HR treaty obligations that we have voluntarily undertaken over many decades to respect, protect & fulfill human rights using all methods for implementation, including legislation, policy, resources etc.


Unlike the ACT, Victoria & Queensland, the Federal Govt is not directly required by domestic law to consider HR in making policies or decisions. At the State & Territory level we have followed the UK model of dialogue, rather than the North American Constitutional model (USA/Canada), where courts have the power to strike down laws for being incompatible with HR. The 2009 Report by Father Frank Brennan on the need for a Federal HR Act showed opinion polls with 57% support and 35,000 submissions with 87% support for a national HR Act. Brennan’s work was unfairly undermined by critics such as Bob Carr focussing on the role of unelected judges, and did not succeed, except for parliamentary scrutiny & a joint committee established in 2011. In the ACT, Victoria & Queensland a court can only give a declaration that a law is incompatible, which does not make law invalid & preserves parliamentary sovereignty. A Federal HR Act would embed HR transparently in public service culture (like the1980s ‘new administrative law’ eg FOI), & hopefully prevent breaches with good laws & decision-making. If human rights breaches still occur, there would be legal remedies for individuals to complain to the Australian HRC.


In December 2021 the Australian HRC released a position paper on discrimination law with 38 recommendations to reform & modernise regulatory frameworks, including having positive duties to shift the burden of making complaints from vulnerable people & place it on government & business. The positive duty was first enacted in Victoria & was followed last year in NT, & soon in the ACT Discrimination Act 1991, as well as Queensland & WA.


ACT situation

The ACT Human Rights Act has operated successfully after nearly two decades, and demonstrates that having a structured framework for considering human rights assists government & public authorities to appropriately & proportionately manage rights & freedoms.The Act has made a genuine difference to the way the Legislative Assembly goes about its work. As a well-educated & caring community, Canberra has a human rights culture in terms of awareness & engagement, and I think that commitment has continuously strengthened. The vision of a human rights culture has been woven into the fabric of law and society with some success after 19 years - it has infused public debate, influenced public attitudes, shaped legislation and improved the conduct of service providers.

In terms of local ACT human rights issues, we have many critical ones, including the following six:

  1. We need an accessible HR complaints mechanism like one in ACT Discrimination Act 1991. COVID highlighted human rights restriction issues eg masks, vaccinations, quarantine. The inclusion of a complaints mechanism under the Human Rights Act 2004 will be the most significant reform, because it will finally bring international human rights home to Canberrans & enable the Human Rights Act to fulfil its potential. The HRC has the existing framework for handling complaints using the practical conciliation model, as well as expertise to provide a one-stop shop for people to freely obtain redress for breaches of human rights & the actual realisation of human rights everyday for ordinary people. It will enable us to catch up with other human rights jurisdictions like Queensland and Victoria, which already have accessible complaints mechanisms. Legislative reform will recalibrate accountability, by holding public authorities responsible for non-compliance with the Human Rights Act, and provide an incentive to comply that is much more immediate than recourse to the Supreme Court, which is largely inaccessible to ordinary people due to cost, time, stress, complexity and risk. (The complaints mechanism will be supplementary to and not replace the direct right of action to the Supreme Court). Disadvantaged people are the most likely to suffer human rights breaches, such as people with disabilities, Aboriginal & Torres Strait Islanders, refugees & migrants, and least likely to bring protracted and expensive litigation. Minster Tara Cheyne announced in October 2022 that the Govt accepted recommendations from LA JACS Committee following community Petition, with Bill expected to be tabled in late 2023.

  2. Need for the right to a safe, clean, healthy & sustainable environment - it is a major determinant of the right to health, including clean air & water, sanitation, adequate food & shelter. This right to healthy environment was successful supported with Govt agreeing in November 2022 to legislate with a Bill expected in late 2023. Essential elements to protect the right a healthy environment include procedural & substantive rights to receive & impart information, participate in public affairs & decision-making, & the right to an effective remedy for violations. It is our best chance of making government & private actors (including developers/manufacturers) accountable to prevent further degradation & pollution, and protecting our environment for future generations.

  3. Raising the minimum age of criminal responsibility from 10 to 14yo in a Bill soon - initially to 12yo, & 14yo two years later (NT only committed to 14yo & Victoria will legislate soon).

4. Providing independent external review of Care & Protection decisions, particularly for children Aboriginal & Torres Strait Islander families who are disproportionately affected.

5. Funding for commencement of OPCAT in January 2023 in places of detention (adult, youth & involuntary mental health facilities). Topical issue is banning spit hoods used by Police on 16yo girl in Canberra City Watchhouse, with current review by AFP (eg banned in SA).

6. Addressing over-incarceration of Aboriginal people by implementing Australian Law Reform Commission Pathways report (2018) locally & nationally.

Conclusion

Human rights have symbolic and substantive impact as a visible and empowering focus for change – they offer a justiciable vocabulary to frame and address political and social wrongs. Critics of human rights law reform often state that it is an inadequate response to human rights concerns, simply because of poor law enforcement. Extra-legal enforcement of human rights is important, but law is a necessary, although not alone a sufficient step, towards actual compliance by protecting human rights. I look forward to the day when a national Human Rights Act might be drawn upon by politicians of all persuasions in our Federal Parliament to defend against encroachments of our rights or liberties. My advice on contributing to human rights everyday is to treat people with compassion & dignity, and have the courage to voice your opinion publicly when you think our society is unfair - this is how can make a difference by building the case for change from the ground up in day-to-day actions.

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