Why a Fair Go should be the law

More than 70 years af­ter the Uni­ver­sal Declaratio­n on Hu­man Rights (UDHR), Aus­tralia con­tin­ues to lag be­hind many coun­tries in pro­vid­ing ad­e­quate hu­man rights pro­tec­tion. So where are we fall­ing down - and what is the so­lu­tion?

AQ: Australian Quarterly - - CONTENTS - CLAIRE MALLINSON

It's been al­most 71 years since the United Na­tions pro­claimed the Uni­ver­sal Declaratio­n on Hu­man Rights. This mile­stone doc­u­ment was an­nounced at the United Na­tions in Paris on De­cem­ber 10, 1948 and set out, for the first time, fun­da­men­tal hu­man rights to be uni­ver­sally pro­tected.

Aus­tralia was a found­ing mem­ber of the United Na­tions and was in­stru­men­tal in draft­ing the UDHR with Her­bert “Doc” Evatt be­com­ing the pres­i­dent of the UN Gen­eral Assem­bly and over­see­ing the adop­tion of the UDHR.

Since then, we have en­joyed some sig­nif­i­cant hu­man rights wins in­clud­ing leg­is­lat­ing equal pay, the 1967 con­sti­tu­tional ref­er­en­dum on Abo­rig­i­nal rights and the le­gal­i­sa­tion of same-sex mar­riage — in my 12 years as Na­tional Di­rec­tor of Amnesty In­ter­na­tional Aus­tralia, we have seen a num­ber of im­por­tant changes, but the strug­gle for equal­ity is not over, there is still much more to do.

The suc­cess­ful Mar­riage Equal­ity plebiscite showed that Australian­s not only value pro­tect­ing peo­ple's rights, but do­ing so in law. Which begs the ques­tion, why then, are we the only Western democ­racy that doesn't pro­tect ev­ery­one's rights in law, through a char­ter of hu­man rights?

Hu­man rights are not a right-wing/ left-wing ar­gu­ment, or one of party pol­i­tics - they should be at the heart of pol­icy de­ci­sions no mat­ter who holds govern­ment.

At their core, hu­man rights are about re­spect­ing the dig­nity of ev­ery­one. Some­one's qual­ity of life should not be de­ter­mined by fac­tors be­yond their con­trol – be it race, na­tion­al­ity, gen­der, so­cio-eco­nomic back­ground, sex­u­al­ity or age.

The work of govern­ment, and the laws they en­act, are cen­tral to how th­ese rights are ex­pressed, or limited. They have the power to bet­ter pro­tect all Australian­s.

Cur­rently in Aus­tralia, hu­man rights pro­tec­tions are found in a range of leg­is­la­tion which are com­plex, de­cen­tralised and some­times only im­plied. Aus­tralia needs leg­is­la­tion at a fed­eral level that brings to­gether all hu­man rights un­der one law, to en­sure that ev­ery­one is pro­tected, and im­por­tantly, that they are all pro­tected equally. We should not have numer­ous in­di­vid­ual laws on re­li­gious free­doms or sex­ual dis­crim­i­na­tion to the ex­clu­sion of oth­ers for ex­am­ple, as all hu­man rights are in­trin­si­cally linked.

Im­ple­ment­ing a Hu­man Rights Act en­shrined in law would make a real and mean­ing­ful im­prove­ment to hu­man rights pro­tec­tion and have the ad­di­tional ben­e­fit of un­tan­gling the cur­rent spaghetti bowl of leg­is­la­tion.

There are some ma­jor on­go­ing is­sues in Aus­tralia, such as struc­tural racism and dis­crim­i­na­tion that our cur­rent laws do not, or do not go far enough, to pre­vent. Th­ese is­sues are com­plex, many are em­bed­ded in Aus­tralia's his­tory, and they of­ten af­fect the marginalis­ed parts of so­ci­ety, such

Why then, are we the only Western democ­racy that doesn’t pro­tect ev­ery­one’s rights in law, through a char­ter of hu­man rights?

as Indige­nous peo­ple, women, the dis­abled and the LGBTQI+ com­mu­nity. A Hu­man Rights Act would help ad­dress th­ese is­sues and en­sure each right is bal­anced with oth­ers to cre­ate a fairer world.

Indige­nous rights

Ac­knowl­edg­ing and cel­e­brat­ing the fact that Aus­tralia is, was and al­ways will be Indige­nous land is nec­es­sary to heal the wounds of colo­nial­ism and for our na­tion to grow and ma­ture.

But we must go fur­ther than th­ese im­por­tant sym­bolic ges­tures to right the wrongs of the past and cre­ate pos­i­tive change for the fu­ture.

The shame­ful re­al­ity is that Indige­nous peo­ple are over rep­re­sented in many of the most un­favourable na­tional statistics: im­pris­on­ment, sui­cide, poverty, mor­tal­ity - the list goes on. We are set­ting up Indige­nous kids for fail­ure be­fore they've even had a chance to grow.

Ac­cord­ing to the Aus­tralian In­sti­tute of Health and Wel­fare, in 2018, more than half of the chil­dren in youth de­ten­tion were Indige­nous.

Aus­tralia con­tin­ues to lock up vul­ner­a­ble chil­dren as young as 10, tak­ing away child­hoods and caus­ing

ALL HU­MAN. RIGHTS ARE. IN­TRIN­SI­CALLY. LINKED.

se­ri­ous harm at a cru­cial time of de­vel­op­ment, when they are be­ing shaped into the adults they will be­come. The ev­i­dence shows that ap­ply­ing crim­i­nal penal­ties to lit­tle chil­dren makes them more likely to com­mit of­fences as adults and se­ri­ously ham­pers their abil­ity to get a good ed­u­ca­tion or em­ploy­ment.

Chil­dren ar­rested be­fore the age of 14 are three times more likely to com­mit of­fences as adults than chil­dren ar­rested af­ter 14. The lat­est re­search shows that chil­dren's brains are not de­vel­oped enough to fore­see con­se­quences, and can­not fully un­der­stand the crim­i­nal penal­ties at­tached to their be­hav­iour. As Indige­nous chil­dren are 25 times more likely to be locked up in Aus­tralia than non-indige­nous chil­dren, th­ese is­sues af­fect them dis­pro­por­tion­ately.

The cur­rent sys­tem fo­cuses on pun­ish­ing th­ese chil­dren and lock­ing them up. But there is a bet­ter way: by sup­port­ing chil­dren, and their fam­i­lies, when they are fac­ing prob­lems in their young lives, we can help them to thrive, and not of­fend in the first place.

When Amnesty's Sec­re­tary Gen­eral, Kumi Naidoo, vis­ited Aus­tralia re­cently, we were able to see some of this in­spir­ing in­ter­ven­tion work done by Indige­nous com­mu­ni­ties in the North­ern Ter­ri­tory through the pro­grams run by or­gan­i­sa­tions like Chil­dren's Ground and Bush­mob con­nect­ing kids to cul­ture and di­vert­ing them into a pro­duc­tive and happy life.

This is a “smart on crime” ap­proach which ad­dresses the root cause of the prob­lems of poverty and dis­crim­i­na­tion which cause Indige­nous kids to be over­rep­re­sented in de­ten­tion. Be­cause Indige­nous com­mu­ni­ties al­ready have the an­swers - they know the best ways to sup­port and men­tor Indige­nous chil­dren. Gov­ern­ments need to sup­port Indige­nous-led pro­grams that keep chil­dren strong, healthy and con­nected to cul­ture.

The sim­plest and most ef­fec­tive way to be­gin to ad­dress some of th­ese prob­lems is by rais­ing the age of crim­i­nal re­spon­si­bil­ity to 14 in line with in­ter­na­tional stan­dards as well as pro­tect­ing and recog­nis­ing the rights of Indige­nous Australian­s and their an­cient and on­go­ing con­nec­tion to coun­try.

A Hu­man Rights Act would likely have avoided the dread­ful scenes we saw in the North­ern Ter­ri­tory's Don Dale De­ten­tion Cen­tre and have kept kids like Dy­lan Voller out of the quick­sand of the jus­tice sys­tem.

Indige­nous com­mu­ni­ties al­ready have the an­swers – they know the best ways to sup­port and men­tor Indige­nous chil­dren.

LGBTQI+ rights

The achieve­ment of mar­riage equal­ity pro­vided a re­sound­ing re­minder to our politi­cians that Australian­s sup­port in­clu­sion and de­plore dis­crim­i­na­tion. See­ing the joy of men and women mar­ry­ing the peo­ple they love is an in­deli­ble re­minder of the real dif­fer­ence leg­is­lated rights make in the real world.

Yet mem­bers of the LGBTQI com­mu­nity con­tinue to face struc­tural bar­ri­ers in­hibit­ing their abil­ity to more fully par­tic­i­pate in so­ci­ety and sin­gling them out from other mem­bers of so­ci­ety.

LGBTQI+ young peo­ple suf­fer from higher than av­er­age rates of men­tal health is­sues. Re­search in­di­cates that LGBTQI+ chil­dren and young peo­ple are more likely to ex­pe­ri­ence dis­crim­i­na­tion, bul­ly­ing and abuse than other chil­dren and young peo­ple and are sig­nif­i­cantly more at risk of sui­cide, self-harm and men­tal health im­pacts as a re­sult. 80% of ho­mo­pho­bic bul­ly­ing in­volv­ing LGBTQI+ young peo­ple oc­curs at school and has a pro­found im­pact on their well-be­ing and ed­u­ca­tion.

De­spite this, pro­grams such as so-called ‘con­ver­sion ther­apy' con­tinue to be prac­ticed in our coun­try. Sex­ual ori­en­ta­tion and gen­der iden­tity change ef­forts (SOGICE) are dan­ger­ous and should be banned na­tion­ally. Cur­rently, only Vic­to­ria has out­lawed th­ese harm­ful prac­tices.

In Aus­tralia, peo­ple with vari­a­tions in sex char­ac­ter­is­tics are rou­tinely sub­jected to med­i­cal in­ter­ven­tions with­out prior, in­formed con­sent, typ­i­cally in in­fancy, child­hood or ado­les­cence. Nor­mal­is­ing surgery should never take place with­out per­sonal in­formed con­sent.

The ma­jor­ity of peo­ple would agree that peo­ple should en­joy the same rights re­gard­less of their sex­u­al­ity or sex­ual pref­er­ence, and yet in re­al­ity, this isn't the case in Aus­tralia. Stu­dents, teach­ers and other staff should be pro­tected in law against dis­crim­i­na­tion by any­one, in­clud­ing re­li­gious schools.

The right to seek asy­lum

Sim­i­larly those who have fled their homes to seek safety in Aus­tralia should be ad­e­quately pro­tected. En­shrined in the UDHR is “the right to seek and to

See­ing the joy of men and women mar­ry­ing the peo­ple they love is an in­deli­ble re­minder of the real dif­fer­ence leg­is­lated rights make in the real world.

en­joy in other coun­tries asy­lum from per­se­cu­tion”.

Over the past two years I have been priv­i­leged to visit refugee camps in south­ern Europe and Cox's Bazar in Bangladesh to wit­ness the heart­break­ing sto­ries of the peo­ple who find them­selves in th­ese ter­ri­ble cir­cum­stances.

In Cox's Bazar I vis­ited the widow's camp - a camp within a camp. All of those women I met had a hor­rific story - they'd been beaten up by the mil­i­tary, they'd had their ba­bies lit­er­ally torn from their breast and killed, they'd seen loved ones shot and killed in front of them and suf­fered hor­ren­dous abuse.

Those women are so vul­ner­a­ble and trau­ma­tised that some of them ac­tu­ally want to go back home, even though it's not safe for them. It's th­ese peo­ple, as well as those on Manus and Nauru and in other camps all over the world, that we must keep in our minds when con­sid­er­ing our leg­isla­tive ap­proach to the des­per­ate peo­ple seek­ing asy­lum.

De­spite Aus­tralia be­ing a sig­na­tory to the UDHR, in re­cent times Aus­tralia's treat­ment of peo­ple who have sought refuge here has been noth­ing short of cruel. Aus­tralia's offshore de­ten­tion and pro­cess­ing ar­range­ments are in­hu­mane and in­ef­fi­cient. We should wel­come asy­lum seek­ers and refugees who have been ware­housed on Nauru and Manus Is­land into our com­mu­ni­ties in Aus­tralia. All peo­ple seek­ing asy­lum should be pro­cessed un­der a sys­tem that pro­vides a mean­ing­ful ap­peals process and the dis­crim­i­na­tory Tem­po­rary Pro­tec­tion Visas ( TPVS) and Safe Haven En­ter­prise Visas (SHEVS) should be re­placed with per­ma­nent visas.

All asy­lum seek­ers should be guar­an­teed ac­cess to le­gal rep­re­sen­ta­tion while their claims are be­ing pro­cessed. The Govern­ment must com­mit to en­sur­ing peo­ple who seek asy­lum here are treated hu­manely and can have their asy­lum claims as­sessed in a timely, fair and ef­fi­cient man­ner.

Aus­tralia plays an im­por­tant role in re­set­tling vul­ner­a­ble refugees through the hu­man­i­tar­ian pro­gram. The Aus­tralian Govern­ment's com­mit­ment to in­crease refugee re­set­tle­ment to 18,750 places, in­clud­ing for peo­ple flee­ing the con­flicts in Syria and Iraq, was a wel­come move.

How­ever, Aus­tralia has the ca­pac­ity and moral obli­ga­tion to do more. We can in­crease the an­nual refugee re­set­tle­ment in­take to at least 30,000 peo­ple, pri­ori­tis­ing those se­lected by the UNHCR (the UN refugee agency). In ad­di­tion to the govern­ment pro­gram Aus­tralia must cre­ate an af­ford­able Com­mu­nity Spon­sor­ship Pro­gram, to en­able or­di­nary Australian­s to con­tribute to global pro­tec­tion, by com­ing to­gether to spon­sor refugees to Aus­tralia.

Cli­mate change: A hu­man rights is­sue

When you think of hu­man rights - cli­mate change isn't al­ways the first thing that comes to mind. But there is a di­rect link be­tween cli­mate change and hu­man rights. Cli­mate change im­pacts peo­ple's hu­man rights in sev­eral ways in­clud­ing en­dan­ger­ing peo­ple's rights to life, health, food, wa­ter and hous­ing.

What re­ally brings it home is when you meet peo­ple in the Pa­cific who are se­ri­ously con­tem­plat­ing leav­ing their homes and coun­tries be­cause they fear soon, they sim­ply won't ex­ist.

Ex­treme weather-re­lated dis­as­ters and ris­ing seas con­tinue to de­stroy homes and ruin peo­ple's abil­ity to earn a liv­ing, par­tic­u­larly in the de­vel­op­ing world. Un­less emis­sions are sig­nif­i­cantly and quickly re­duced, around 600 mil­lion peo­ple are likely to ex­pe­ri­ence drought and famine as a re­sult of cli­mate change.

Across the world, women form the ma­jor­ity of self-em­ployed, small-scale farm­ers, so droughts, floods and crop fail­ures will hit them first and hard­est. They're also more likely to take on the bur­den of col­lect­ing wa­ter, so will be acutely af­fected by se­vere wa­ter short­ages.

Indige­nous Peo­ples are of­ten at the front­line of global warm­ing. Many live in frag­ile ecosys­tems that are par­tic­u­larly sen­si­tive to changes in cli­mate. This threat­ens their cul­tural iden­tity, which is closely linked to their tra­di­tional land and liveli­hoods.

As famines, droughts and nat­u­ral dis­as­ters be­come more fre­quent, so too the num­bers of peo­ple on the move across bor­ders will in­crease. While not all of th­ese peo­ple will meet the le­gal def­i­ni­tion of “refugees”, they should still be en­ti­tled to sup­port from the coun­tries most re­spon­si­ble for cli­mate change.

Cli­mate change will also ex­ac­er­bate well-known causes of war, such as com­pe­ti­tion over nat­u­ral re­sources, in­creas­ing the risk of vi­o­lent con­flict in the fu­ture.

Aus­tralia must take im­me­di­ate steps to re­duce car­bon emis­sions, in­clud­ing phas­ing out sub­si­dies for fos­sil fu­els. We must also as­sist peo­ple in Aus­tralia and in­ter­na­tion­ally through our aid pro­gram, to adapt to cli­mate change, and pro­vide com­pen­sa­tion, in­clud­ing to those who have lost their homes be­cause of ris­ing sea lev­els, sali­na­tion or other cli­mate change re­lated im­pacts.

Th­ese things might seem a long way from the lucky coun­try. But we have an obli­ga­tion to make the world bet­ter for oth­ers as well as our­selves, as well as pre­par­ing for what could come. So while a Hu­man Rights Act will not di­rectly stop cli­mate change, it can en­sure that what­ever hap­pens, Australian­s and those com­ing to Aus­tralia, will con­tinue to re­ceive the life-giv­ing re­sources they need.

Af­ter all, Aus­tralia be­lieves in a ‘Fair Go' for ev­ery­one.

Th­ese things might seem a long way from the lucky coun­try. But we have an obli­ga­tion to make the world bet­ter for oth­ers as well as our­selves.

Get­ting se­ri­ous about a Fair Go

The re­al­ity in Aus­tralia is that many of the peo­ple who call it home suf­fer daily chal­lenges to re­alise their fun­da­men­tal hu­man rights.

It's an un­pleas­ant truth that we must face as a na­tion. But it is one for which a rel­a­tively sim­ple leg­isla­tive change would make sig­nif­i­cant im­prove­ment.

Aus­tralia is right to be proud of its role in the procla­ma­tion of the UDHR and its in­volve­ment with the United Na­tions, in­clud­ing its hard-fought po­si­tion on the UN'S Hu­man Rights Coun­cil. But as well as our place on the world stage, we have a press­ing need to get our own house in or­der when it comes to hu­man rights.

The so­lu­tion is not dif­fi­cult. Sim­ple leg­is­la­tion could be the great­est step for­ward for hu­man rights that Aus­tralia has seen in the last 71 years, since the in­cep­tion of the UDHR. The Mor­ri­son Govern­ment has a unique op­por­tu­nity for a Hu­man Rights Act to be its proud­est legacy.

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