A Human Rights Agenda for the new Attorney-General, continued

Human Rights Law Centre | December 2011

Australia’s new Attorney-General, Nicola Roxon, was sworn in on 14 December 2011.

We asked some of Australia’s leading human rights advocates, activists and academics to tell us, in less than 100 words, what the Attorney’s top human rights priority or initiative for 2012 should be. We’ll be sharing more of them with you in the coming days and weeks.



John Tobin is an Associate Professor at Melbourne Law School and a member of the HRLC Advisory Committee

The prioritisation of efforts to address human rights considerations is always fraught with danger. But the reality of limited resources means that prioritisation is a fact of political life. Given this reality, the top priority for the new Attorney General in 2012 must be ensuring the successful implementation of the Human Rights (Parliamentary Scrutiny) Act 2011. The requirement to scrutinize all new legislation in light of international human rights standards must not be reduced to a shallow process of compliance. Instead, the Attorney General must lead from the front and demonstrate that substantive engagement with international human rights standards leads to more effective and equitable legislative outcomes.

Lucy McKernan is Manager of Strategic Projects with the Public Interest Law Clearing House (Vic)

That a five year old girl can be lawfully refused admission to a government funded kindergarten on the basis of her parents’ same-sex relationship, is a disgrace. Even the Acting Bishop for the relevant Catholic diocese was ‘appalled’ by the discriminatory decision, yet Australian laws allow this form of discrimination by religious organisations.

Attorney-General Roxon should remove the blanket exceptions for religious organisations permitting them to discriminate on the grounds of sex and age. At the very least, the Attorney should prohibit discrimination by religious organisations in respect of their government funded functions and require greater transparency from organisations seeking to rely on the exceptions. Importantly, the Attorney should also show leadership by encouraging her State counterparts to follow suit.

Les Malezer is Co-Chair of the National Congress of Australia’s First Peoples

The priority for Aboriginal and Torres Strait Islander Peoples is to gain recognition and respect as first peoples, and acknowledgement and protection of Indigenous rights.

In 2012, the Attorney General must make the Human Rights Framework effective, leading cultural change across government. For Aboriginal and Torres Strait Islander peoples this includes giving the recommendations and reports of the Australian Human Rights Commission, including the ATSI Social Justice Commissioner, real authority, not just political lip service. The Government must implement and be accountable to reports on human rights by national and international authorities. There should also be a focus on judicial and legal education, to ensure legal professionals understand Indigenous rights and can properly and impartially resolve cases regarding those rights.

Lucy Adams is a Senior Lawyer with the PILCH Homeless Persons’ Legal Clinic

On census night in 2006, approximately 105,000 Australians were homeless, including approximately 7,480 families. Australia needs a human rights-based framework for addressing homelessness.
InVictoria, we have seen how legislative protection of human rights can work in practice through the Victorian Charter of Human Rights. The HPLC has relied on the Charter’s binding obligations on public bodies – to give proper consideration to human rights in decision-making and to act compatibly with human rights – to avoid the eviction of 42 people, including 21 children, from social housing into homelessness.

Enforceable human rights obligations, including national homelessness legislation that enshrines the right to adequate housing, are critical to Australia’s ability to effectively prevent and address homelessness.

"Panic" by David Marr: on John Hatzistergos

David Marr | SMH | 17 April 2008 

That this is the last civilised nation not to guarantee its citizens' rights counts for nothing. We don't have foot and mouth disease or video games for grown-ups. So what's to stop us quarantining Australia against bills and charters of rights?

The Attorney-General, John Hatzistergos, has been thundering against them lately in the best traditions of NSW Labor. Bob Carr was one of the wittiest and most determined opponents of handing out rights we could enforce in court. It's something one-party states never willingly allow.

"We do not live in a perfect society and never will," Hatzistergos solemnly informed the Sydney Institute last week. "There may well be laws perceived by some to be unjust in our community. It is however wrong to suggest that they can be remedied by enacting charters with wide-ranging values and all will be well."

If only our grim-faced Attorney-General had been around in 1791 to tug James Madison's sleeve and stop him making the historic mistake of presenting the US Congress with constitutional amendments guaranteeing free speech and a free press; the freedom to assemble and the freedom to worship; the assurance that life and liberty will only ever be infringed by due process of law - and, alas, the right to bear arms.

Two-and-a-bit centuries later in Australia, the courts are all but powerless to prevent these rights being legislated away. And a good thing too, says Hatzistergos: "Transforming social and political questions into legal ones … forces the courts to start making decisions … for which they do not have democratic legitimacy."

That's American talk. America gave the world the great model of entrenched rights and lately America has bred mighty rhetoric attacking the courts as undemocratic for protecting them.

The wisdom of experience? Yes and no. Hatzistergos and his tribe are mouthing the words of those sore losers whose democratic sensibilities are offended by the secular, decent revolution pulled off by the US Supreme Court in the last half century that began in 1954 with Brown v Board of Education of Topeka, ending racial segregation of schools.

Judicial imperialism argument is hollow

Spencer Zifcak | The Australian | 24 June 2011

JAMES Allan's recent article in these pages provides a welcome opportunity to examine the nature and quality of arguments advanced by opponents of Victoria's Charter of Rights.

The article, in response to one of mine that Allan described as pathetic and simplistic, contains many of the contrary arguments commonly asserted by antagonists but rarely justified.

The primary argument is that a charter is nothing more than a list of vague aspirations. Because of this, human rights legislation is a gift to judges. It provides them with a unique opportunity to engage in judicial imperialism.

They can make free speech mean what they want. They can whip up a new definition of arbitrary detention. They can stretch the boundaries of fair trial beyond recognition, and so on.

This argument completely ignores the fact that courts globally have 60 years of experience in interpreting the constitutional and legislative protection of human rights.

Ever since the introduction of the European Convention on Human Rights in 1950, courts in every Western nation except the US have been working through the meaning and ambit of rights guarantees born in the Universal Declaration of Human Rights in 1948. In every nation with which Australia usually compares itself -- Canada, New Zealand, Britain -- courts have minutely dissected the definition and effect of free speech, religious freedom and fair trial rights among many others. These rights, all of which are founded upon the Universal Declaration and its associated international covenants, have been fully explored and interpreted. The body of relevant precedent is precise, instructive and huge.