The Politics of Human Rights in Australia

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THE POLITICS OF HUMAN RIGHTS IN AUSTRALIA

Australia has traditionally lacked a strong rights culture. While fairness and equality have been proudly exalted as trademarks of the national mindset, the authors of The Politics of Human Rights in Australia argue that these same characteristics may equate to a form of cultural complacency. This outlook could be the reason why Australia has fostered only a loose and incomplete safety net of rights protection, through which many have fallen. The Politics of Human Rights in Australia offers the first comprehensive account of Australia’s protection of human rights from a political science perspective. Addressing the key debates surrounding human rights in Australia, the authors ask: Why are voting rights so critical in the Australian context? Should Australia adopt a bill of rights in an age of terror? What are Australia’s responsibilities to global and regional refugee crises? How can reconciliation between Indigenous and non-indigenous Australians be facilitated? How well protected are women’s rights and homosexual rights in Australia? Written by three respected academics at the forefront of their fields, The Politics of Human Rights in Australia offers clarity and insight into the complex issues surrounding the human rights debate in Australia. Louise Chappell is Associate Professor in the Department of Government and International Relations, University of Sydney. John Chesterman is Senior Lecturer in the School of Social and Political Sciences at the University of Melbourne. Lisa Hill is Professor in the School of History and Politics, University of Adelaide.

THE POLITICS OF HUMAN RIGHTS IN AUSTRALIA

Louise Chappell, John Chesterman and Lisa Hill

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521707749 © Louise Chappell, John Chesterman & Lisa Hill 2009 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2009 ISBN-13

978-0-511-65115-1

eBook (NetLibrary)

ISBN-13

978-0-521-70774-9

Paperback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Information regarding prices, travel timetables and other factual information given in this work are correct at the time of first printing but Cambridge University Press does not guarantee the accuracy of such information thereafter.

CONTENTS

Acknowledgements List of abbreviations Introduction

page ix xi 1

1 Human Rights Understanding human rights What are rights? Human rights in Australia Impediments to change References

6 8 9 15 21 24

2 Protecting Human Rights Constitutional protection of rights Common law protection of rights Legislative protection of human rights International law The role of non-government organisations Conclusion References

27 28 33 36 44 53 56 58

3 A Bill of Rights? Defining a bill of rights The bill of rights debate in Australia Alternatives to a national bill of rights Conclusion References

62 63 67 76 80 81

v

vi

Contents

4 Electoral Rights in Australia Suffrage rights in Australia Exclusions Aboriginal voters and the franchise Prisoners The diaspora and permanent residents Other exclusions Compulsory voting The electoral roll and voting access One vote, one value Securing electoral rights Conclusion References

85 87 89 90 93 97 98 101 103 107 110 111 112

5 The Rights of Indigenous Australians Era 1: No rights (1788–1950s) Era 2: Civil rights (1950s–70s) Era 3: Indigenous rights (1970s–90s) Era 4: Anti-rights (from 1996) Conclusion References

117 119 120 123 129 148 149

6 Gender and Sexuality Rights A gender-based approach to human rights Internationalising women’s human rights Australia’s women’s rights machinery Sexuality rights Conclusion References

154 156 159 162 180 187 188

7 Refugees The refugee policy compromise Pre-2001 refugee policies in Australia 2001: Refugees on centre stage Tampa Children overboard SIEV X The policy controversies

194 195 196 199 199 203 205 205

Contents

The judicial realm The parliamentary realm Conclusion References

vii

212 215 217 218

8 Civil and Political Rights in an Age of Terror The Australian response to the war on terror Parliament as a constraint on government? Case studies: Hicks and Haneef Proportionality Is Australia at risk? Options A third way Conclusion References

221 222 225 229 234 237 240 243 246 247

Notes Index

252 258

ACKNOWLEDGEMENTS

We would like to thank our research assistants Glynn Evans, Alan Goldstone, Jennifer Hunt and Emma Larking for their hard work and attention to detail in pursuing the various research tasks we have asked them to undertake. Lisa Hill would also like to thank Ian Hall for his comments on an early draft of chapter 8. We also extend our grateful thanks to the Australian Research Council, whose generous funding has proven crucial to the production of this book. Finally, we thank our partners and families, who have endured the inevitable stresses that come with the completion of any academic book.

ix

ABBREVIATIONS

AEC AI ALR ALRC ATSIC CEDAW CLR CROC HRC HREOC ICCPR ICERD ICESCR ICRC JSCEM NGO PIAC SIEV SSCAIA TPV UDHR

Australian Electoral Commission Amnesty International Australian Law Reports Australian Law Reform Commission Aboriginal and Torres Strait Islander Commission Convention on the Elimination of All Forms of Discrimination against Women Commonwealth Law Reports Convention on the Rights of the Child Human Rights Committee Human Rights and Equal Opportunity Commission International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Committee of the Red Cross Joint Standing Committee on Electoral Matters Non-government Organisation Public Interest Advocacy Centre Suspected Illegal Entry Vessel Senate Select Committee on the Administration of Indigenous Affairs Temporary Protection Visa Universal Declaration of Human Rights

xi

INTRODUCTION

The decision to write The Politics of Human Rights in Australia was made because of the absence of any comprehensive study that examines the political nature of Australia’s protection of human rights. The fact that the articulation and protection of human rights are legal processes – concerning the drafting, interpretation and enforcement of international as well as domestic laws – has led human rights studies to be somewhat captured by legal academics and practitioners who have an important function to fulfil but whose brief, naturally enough, concentrates on legal rather than political analyses. Our purpose is to show and discuss the way in which the articulation and protection of human rights are not only legal processes but also intensely political ones. These processes are political because the institutions that debate, prioritise, articulate, protect and, at times, ignore human rights are engaged in determining how power is exercised in Australian society. When the High Court invalidates a ban on prisoners voting, it is not only fulfilling a legal function (in interpreting and applying the law) but it is also generating a political effect, constraining the operation of parliament (which can no longer ban all prisoners from voting). When the media criticise the government for undue secrecy in its anti-terrorism activities, that criticism contributes to a political debate about the unchecked power of government. When parliaments determine the extent to which they will articulate human rights into Australian statutes, that is a political process that will shape the freedoms and entitlements of individual Australians.

1

2

Introduction

If anything, Australia has less reason than most countries to leave the study of human rights to lawyers, since the lack of a national bill of rights often leaves politicians, rather than judges, as the ultimate arbiters of whether Australia will recognise and defend a principle expressed in international law. In this sense, Australia, more than other countries, witnesses decisions about human rights being carried out by actors most commonly associated with politics – politicians. Indeed, the pre-eminence of the Australian parliament in determining whether to make human rights domestically enforceable constitutes one of the central themes in this book. Our argument is that Australia’s practice of largely leaving the job of rights definition and protection to parliaments instead of courts has served majority interests in Australia quite well, but it has not served well some notable minority groups, particularly Indigenous Australians, refugees, and gay and lesbian Australians. Nor has it always served well women as a group. An obvious question for a book such as this to ask is whether Australia’s system of rights protection would be improved by adopting a national bill of rights, a development that would address the one feature of Australia’s rights system that sets it apart from all otherwise comparable countries. Would the adoption of a bill of rights constitute an improvement? While the authors take the view (for reasons set out in chapter 3) that it would, none of us believes that such a development would provide a magic settlement of the many and varied human rights debates that currently exist in Australia and that will continue to arise. This is borne out by just two of the contentious debates considered in this book. The Northern Territory intervention into Aboriginal communities, begun in 2007, was aimed at protecting the welfare of children, but in enacting the intervention, the raft of new laws – governing alcohol and internet restrictions and quarantining welfare payments – suspended one of Australia’s core human rights statutes, the Racial Discrimination Act. That Act seeks to protect one of the most fundamental human rights – the right not to be discriminated against on the basis of race – yet the view was taken by the Australian parliament that suspension of this right was appropriate in the extreme circumstances facing Aboriginal communities in the Northern Territory. The right should not have been suspended, for reasons articulated in chapter 5. But we do not for a minute think that the mere continuation of the Racial Discrimination Act, which in effect is the same as a prohibition against racial discrimination that might

Introduction

3

exist in a national statutory bill of rights, would settle the debate about how children in remote Aboriginal communities should be protected and what rights, if any, should be jettisoned in doing so. Nor has the pre-existing protection against racial discrimination provided much of substantive significance to many children and women in remote Aboriginal societies, or elsewhere in Australia, whom the institutions and norms of civil society appear to have abandoned. Our argument is that a bill of rights would provide one mechanism by which proposals that limit rights might be evaluated, and would be a useful safeguard in this regard. However, it would not in and of itself provide solutions to the significant problems that the intervention has sought to address. Another contentious issue concerns the topic of terrorism (explored in chapter 8). When, if ever, does the threat of terrorism justify limitations on existing rights? Since we do not subscribe to the view that the threat of terrorism never justifies an incursion on existing rights, we must enter the complex terrain of determining when, and with what safeguards in place, are incursions defensible. Here again, a bill of rights would be a help rather than a hindrance in this balancing process, but a bill of rights would not provide all the answers. The debates about proportionality are just that, debates. We hope that readers will be informed about the particular human rights debates explored in and engaged with in this book, and that they see more clearly than before the political nature of these debates. In planning this book it was decided early on that its aim should be to cover thematic issues rather than to devote entire chapters to particular rights. Only one chapter concentrates on a single right, and that is chapter 4, which examines the extensive topic of electoral rights. An important human rights topic of its own accord, the right to vote is perhaps even more significant in Australia than elsewhere, since elected representatives in Australia play such an important role in deciding when and how to protect human rights. All the other chapters deal with thematic human rights topics. The reason for this is that our overriding concern in the pages that follow is not to provide an in-depth report card on how well Australia is faring in protecting each and every human right, but rather to show readers the political nature of debates about human rights. It is for this reason that this book focuses more on what are labelled civil and political rights (those articulated in the International Covenant on

4

Introduction

Civil and Political Rights) than on economic and social rights (as detailed in the International Covenant on Economic, Social and Cultural Rights). As a general observation, the parameters of political debates surrounding civil and political rights are easier to see than are those surrounding economic and social rights. The debate about whether the right to vote should extend to prisoners, for instance, is one that has been strongly debated in Australia, and the fault lines of this debate are clear. The political nature of debates about economic and social rights tends to be more abstruse. The right to housing, say, is a human right, and few people would object to its labelling as such. But to what quality of housing, with how many inhabitants, does it give rise? While we do not ignore economic and social rights in this book, our aim here is to provide an exploratory account of the political nature of human rights debates, and in doing so our study does have a pronounced tilt towards examining the protection of civil and political rights. We hope that a specific study might one day be made of the politics of economic and social rights in Australia (which could include chapters on social security, workers’ rights, education, housing and health care), and that this book might even pave the way for such a study. But that will be a different book to this one. The proceeding chapters are organised in the following way. Chapter 1 examines how the term ‘human rights’ has developed, what it means and how it has been used in Australia. Chapter 2 explores the various ways in which human rights are currently protected in Australia, which leads into the discussion in chapter 3 about why Australia does not have a national bill of rights. Chapter 4 examines voting rights, and the following three chapters examine the human rights positions of various historically marginalised groups in Australia: Indigenous Australians (chapter 5), women, gay and lesbian Australians (chapter 6) and refugees (chapter 7). In the final chapter we look at the implications of the war on terror for human rights in Australia. Like most multi-authored books, each of the chapters that follow was originally drafted by one of the authors, with the other two providing feedback. This feedback and the debates that it stimulated took place in various workshops in Melbourne and Sydney. Louise Chappell wrote the initial drafts of chapters 2, 3 and 6. John Chesterman wrote the first drafts of the introduction and chapters 5 and 7, and Lisa Hill wrote the initial versions of chapters 1 and 4. Chapter 8 was substantially written by Hill, though Chappell and Chesterman both contributed new sections to it.

Introduction

5

A final note. The human rights field in Australia is fast-changing, particularly so at the moment this book has been completed, barely 12 months after a government noted for its outspoken criticisms of the United Nations ended its 11 year reign. It has been replaced in office by the Australian Labor Party, which has traditionally been supportive of the concept of international norms guiding domestic arrangements (and is headed by a former diplomat). Already some key changes are evident, such as the signing of the Kyoto Protocol, the apology to the Stolen Generations, and the ending of the temporary protection visa regime for refugees. There are bound to be other developments between now and the publication of this book, but, at February 2009, the writing is up to date.

Chapter One

HUMAN RIGHTS

Even if we are sure that liberal democracy is the best possible regime for the realisation of human flourishing – and no matter how developed a liberal democratic system is – it would be a mistake to assume that justice can be achieved in such a system purely via electoral processes. Given that public decision making in democracies relies upon the approval of a time-poor and imperfectly informed electorate as well as on the actions of representatives who are obliged to accommodate the electorate’s preferences in order to retain legitimacy and power, it is unsurprising that democracy turns out to be a rather blunt instrument for the delivery of individual and minority rights. This flawed but unavoidable dynamic between the electorate and its representatives is, undoubtedly, one of the virtues of – and chief justifications for – democracy, but it is also one of its weaknesses. Despite his enthusiastic advocacy of representative government, British philosopher John Stuart Mill was acutely alert to this reality. Mill endorsed representative democracy because of its tendency to put power into the hands of the majority or, in his words, to admit ‘all to a share in the sovereign power of the state’ (Mill 1991 [1863], 256). And yet, while democracy might ameliorate the problem of tyranny by a select elite, it still held the potential for oppression by the democratic majority over minorities (via ‘the acts of the public authorities’) (Mill 1991 [1863], 8–9; Wolff 1996, 115). Mill was therefore motivated to think of ways to prevent this from happening, and thus protect individuals from the state and the society.

6

Chapter 1: Human Rights

7

He believed that finding the ‘limit to the legitimate interference’ of the collective with the individual was ‘indispensable to a good condition of human affairs’ (Mill 1991 [1863], 9). Mill was not alone in this quest: determining where that limit might be has been one of the absorbing errands of Western legal and political theory. Imposing the proper means for patrolling and regulating that limit has been the task of legislators and courts. This book explores how well the Australian state has embraced this important assignment. In the following account of the politics of human rights in Australia the focus is mainly on formal and substantive rights, those that are enshrined and enshrinable in statutes and constitutions, which are binding and enforceable, and on which claims can be made through legal and institutional channels. Many people think of this domain of rights as being associated exclusively with negative rather than positive freedoms; others (including the present authors) think this distinction is unstable. Negative liberty is usually conceptualised in individualistic terms as freedom from constraints on an individual’s freedom, while positive liberty concerns the freedom to act so as to realise one’s own goals and life plan. On this understanding, negative liberty can only be infringed by other people (we would not say our liberty is being violated by a storm that prevents us from going outside or by tone deafness that prevents us from becoming an accomplished opera singer). The positive/negative liberty distinction was famously elaborated by the political theorist Isaiah Berlin who, in referring to the negative conception, posed the question, ‘What is the area within which the subject – a person or group of persons – is or should be left to do or be what he is able to do or be, without interference by other persons?’ The question he posed in relation to positive liberty was ‘What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?’ (Berlin 2002, 121–2). The extent and conditions of liberty are thus extremely important in shaping the extent to which human beings are enabled to flourish. The rhetoric of human rights is the first resort in contemporary challenges to the use of power that negatively affects human welfare and dignity (Offord 2006, 13). As political theorist A. Belden Fields has noted, ‘Human rights rank along with democracy and free markets in the normative language of our age’. For many, rights talk is ‘the ultimate normative reference point’ (Fields 2003, 1).

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The Politics of Human Rights in Australia

Understanding human rights It is generally assumed that the idea of universal rights is an essentially modern, liberal-democratic idea. Yet, some scholars have argued that there is a recognisably modern conception of rights in ancient Greek and Roman thought (see, for example, Ober 2000; Ostwald 2004; Hill 2001). Our original ideas of equal rights as universal derive from the Epicurean, Cynic and especially Stoic traditions (Hill 2001). It has, for example, been suggested that ‘Locke was writing as a disciple of the Stoics when he offered his theory of natural rights to seventeenth-century readers’ (Cranston 1967, 2). But, as political theorist Duncan Ivison quite sensibly points out, ‘many of the rights that most people associate with liberal societies presuppose specific institutions, material conditions and ways of life that have developed over time’(Ivison 2008, 4). Freedom of the press, the right to privacy and the right to vote would have been hard for ancient Greeks and Romans to grasp. Therefore ‘[a]rguments about rights have to be anchored in some way to human practices and ways of life within which they must gain their meaning and resonance’ (Ivison 2008, 4). Antique cultures did not have all the right kinds of anchoring practices and norms to make the modern conception of rights fully realisable, though they did have some of them. The best known transmitters of the human rights tradition are modern United Nations documents such as the 1948 Universal Declaration of Human Rights (UDHR), the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). The rights tradition is also reflected in myriad human rights statements and declarations produced by such organisations as the Council of Europe, the Organisation of American States and the African Union (Nickel 2006) as well as non-government organisations like Amnesty International. The moral reference point for domestic rights projects are frequently these supranational entities, particularly UN organisations, because they are perceived to embody a moral authority superior to that of potentially interested and narrowly focused domestic actors and institutions. Further, supranational entities such as the UN generate human rights norms because the treaties that they establish between nations create international law (Nickel 2006).

Chapter 1: Human Rights

9

What are rights? A right is an entitlement to act in a certain way and to have others act in a certain way toward us; a right permits actions and imposes obligations. More specifically, rights are high priority (Cranston 1967), morally enforceable claims or norms that exist to protect the political, legal and social interests of people as well as their dignity as human beings. They are distinct from other moral claims because they ‘aspire towards institutional embodiment and enforceability’ (Ivison 2008, 7). Rights exist at the domestic and the international level and are usually created by legislative enactment and judicial decisions (Nickel 2006). They set minimal standards for how human beings should be treated and, in most cases, are the entitlements attributed to individuals by virtue of their being human. A distinction is usually made between rights that are derived from a priori principles (natural, innate rights) and rights that are acquired or created by legislation (positive or statutory rights). For American legal theorist Wesley Hohfeld, rights are directly correlated to duties, ‘That is to say, if D has a right with respect to H to perform X then H has a duty not to interfere with D in X-ing’ (1978 [1919]). Possessing a right to something provides an entitlement to it and an entitlement creates obligations in and towards others. In order to realise one’s entitlement, the claim must be enforceable even if this only means that others can be prevented from acting. It is the state’s job to ensure that such forbearance prevails (Shue 1996). When people refer to rights they usually mean rights that are equal, inalienable and universal. Every human being is assumed to possess the same entitlements as everyone else, their rights are assumed to be universal in the sense that all human beings enjoy them (Donnelley 2003, 10). Such an understanding is reflected in the ICCPR and the ICESCR, which declare in their respective preambles that ‘the equal and inalienable rights of all members of the human family’ derives ‘from the inherent dignity of the human person’. The imperative to respect such rights consists in the strong claim (made in both treaties) that such respect is the ‘foundation of freedom, justice and peace in the world’. It should be noted that some of the above claims about human rights are disputed. First, there are those who reject the whole idea of natural, universal and inalienable rights since their existence is claimed to be based

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The Politics of Human Rights in Australia

on the – usually Western – assumption that morality is independent of culture. These relativists argue that, since there is considerable disagreement between cultures as to what constitutes moral behaviour, there is no basis for the universalist claim that there are rights that are applicable or appropriate to all people at all times. Second, even for those who accept the idea of universal rights, the claim that rights are always negative freedoms is problematic because the distinction between negative and positive freedom is not as clear as many assume: not all human rights are negative freedoms because even the basic right to security from invasion and harm – which at face value looks like a straightforward negative right – requires positive action on behalf of governments to provide a formal system of criminal law and enforcement (Nickel 2006). The line between positive and negative liberty may not be as bright as many liberals suppose. Third, the claim that human rights are inalienable or absolute is controvertible. Some take the strong position that rights are absolute. For political theorist Jack Donnelley (2003, 10), regardless of how badly behaved or badly treated we are, we cannot ‘stop being human’, therefore human rights are inalienable. Others suggest that bad behaviour does render some rights alienable, suggesting that simply being human is not enough. If we accept that it is reasonable to punish people with imprisonment for serious crimes, then we have also accepted that ‘people’s rights to freedom of movement can be forfeited temporarily or permanently’ (assuming the conviction is just). On this view, not every human right is inalienable; nevertheless, those that aren’t should still be ‘hard to lose’ (Nickel 2006). Fourth, the assumption that rights naturally or necessarily attach to all human beings is problematic, mainly because it is rarely justified in the kinds of documents that embody, promulgate and protect rights. As the philosopher L. W. Sumner notes, ‘[d]eclarations and manifestos seldom offer a grounding for their catalogues of rights, and they never offer an account of what makes a right a natural right’ (Sumner 1987, 94). The United States Declaration of Independence (1776), for example, simply asserts that it is ‘self-evident’ that all people ‘are endowed . . . with certain inalienable Rights’. But why are human rights natural rights? Are such rights inalienable or are they forfeitable and defeasible (that is, capable of being declared void)? Can rights exist in the abstract or independently of legal enactment? Why do rights attach to humans and where do they come from?

Chapter 1: Human Rights

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Legal rights find in statutes or norms the mechanism for their creation. Contractual rights are derived from the fact that the parties have mutually contracted (Donnelley 2003, 13), while traditional rights and liberties – even where enshrined in positive law – draw their authority from their observance over time (Cranston 1973, 19–20). But how is it that simply being human entitles us to moral rights that are universal and apply to all people in all situations? Most contemporary approaches to defending rights split into either natural rights or consequentialist camps. The natural rights tradition makes much stronger claims on behalf of rights and is therefore more demanding. Early natural rights attempts to answer the question of where rights come from referred to God’s agency and intentions as the supreme lawmaker. We might think of these as theistic attempts to justify rights claims.1 John Locke, one of the most influential parents of the natural rights tradition, argued in the Two Treatises of Government that God created us and intended our survival as his chief end for us. Since we are God’s property, and since he created us for survival, we have no right to commit either murder or suicide. Further, because we were created for self-preservation, we possess the natural (that is, God-given) right to ‘life, health, liberty [and] possessions’ (Locke 1990 [1690], 6–7 [II. ii]). An emblematic example of a theistic rights document is the Declaration of Independence, which proclaims that ‘certain inalienable rights’, such as the rights to ‘Life, Liberty and the pursuit of Happiness’, are ‘endowed by [humanity’s] Creator’. The Declaration also asserts that ‘[g]overnments are instituted’ in order to ‘secure’ such rights and that any regime ‘destructive of such ends’ is by ‘Right of the People’ to be ‘abolished’. Status theories also fall into the natural rights camp. Status theories hold that there are certain attributes of human beings that demand the ascription of correlate rights to them. They appeal to characteristics that seem intrinsic to being human and which therefore make respect for certain rights appropriate and desirable. Since there is no unified school of natural rights, there is no single answer to which human attributes logically give rise to rights but the usual candidates are the possession of reason, the inherent dignity of human beings (for example, Immanuel Kant; UN instruments), a capacity for autonomy and free will and the ‘ability to regulate one’s life in accordance with one’s chosen conception of the good life’ (Nickel 2006). According to philosopher Warren Quinn:

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The Politics of Human Rights in Australia

A person is constituted by his body and his mind. They are parts or aspects of him. For that very reason, it is fitting that he have primary say over what may be done to them, not because such an arrangement best promotes overall human welfare, but because any arrangement that denied him that say would be a grave indignity. In giving him this authority, morality recognises his existence as an individual with ends of his own – an independent being. Since that is what he is, he deserves this recognition. (1993, 170)

Critics of natural rights theories counter that the idea of natural rights is incoherent since rights require conventional law for their realisation. The well-known utilitarian Jeremy Bentham famously referred to the idea of natural rights as ‘nonsense on stilts’ and argued that since there can be no rights without conventional laws, there can be no natural moral laws and therefore no natural rights (Sumner 1978, 112). Another type of answer to the question ‘where do rights come from?’ rests on the idea of human needs. Legal philosopher Reginald Green argues that ‘a basic human need logically gives rise to a right’ (Green 1981, 55; see also Bay 1982, 67). Rights, says Christian Bay, should serve and protect not only civil and political freedoms but also higher needs like the need for human dignity (1982, 54). Yet even Bay admits that he is unsure about how reliable a grounding human needs can provide and that it is probably ‘premature to speak of any empirically established needs beyond sustenance and safety’ (1977, 17; italics added). Some thinkers, such as Mill, derive rights, not from God, human nature or needs, but from utilitarian principles. Thus Mill is of the consequentialist school of rights. The relationship between utilitarianism and human rights is not immediately apparent but Mill shows us the connection in Utilitarianism. Here he wrote that, ‘[t]o have a right . . . is to have something which society ought to defend me in the possession of. If the objector goes on to ask, why it ought? I can give him no other reason than general utility’ (Mill [1863] 1991, 189). Whereas direct utilitarianism would find it acceptable to scapegoat an innocent individual for the common good (for example, to placate an angry crowd intent on public mayhem) an indirect utilitarian such as Mill would argue that in a society where scapegoating was routinely practised, anxiety and insecurity would gnaw away at the population’s peace of mind; therefore, in the long view, scapegoating would be ‘detrimental to the general happiness’ (Wolff 1996, 130–1). Thus utility recommends universal rights even though the existence of primal or natural rights is

Chapter 1: Human Rights

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explicitly denied by utilitarians. Instrumental or consequentialist theories such as Mill’s hold that respect for rights is desirable because of the good consequences that flow from such respect. So, theism, human attributes, custom, human needs and utility all lend their own justifications for rights but it is not always clear in contemporary discourse and rights declarations which of these theories is being adopted – if at all. The ICCPR and ICESCR hint at the assumption of a human nature or status variant of natural rights theory but neither elaborate on nor justify this assumption. The US Declaration of Independence simply asserts that such rights are self-evident. As with most rights documents, their naturalness and universality tend to be assumed rather than argued. Historically, rights have developed in response to particular threats because ‘they offer ways of dealing with them’ (Ivison 2008, 8; Scanlon 2003, 114–17) and it is not unusual for bills of rights to commence with a litany of complaints about injustices perpetrated by previous regimes. Declarations or statements of human rights are normally addressed to governments and require their compliance and enforcement (Nickel 2006) because rights for individuals tend to be identified with freedom from arbitrary interference by governments. Yet, as already noted, many rights require positive action on the part of governments. Further, not all rights violations are perpetrated by governments; many occur at a private level (Okin 1998). Thus universal and equal rights work two ways in relation to governments: they forbid governments to violate rights and they impose duties on governments to discourage and prohibit rights violations in both the private and public domains (Nickel 2006). The kinds of rights that aspire to legal embodiment are known as ‘first’, ‘second’ and ‘third generation’ rights. First-generation rights are generally conceived (though not always accurately, as we suggest above) as ‘negative liberty rights’. Those included in the UDHR are Security rights that protect people against crimes such as murder, massacre, torture, and rape. Due process rights that protect against abuses of the legal system such as imprisonment without trial, secret trials, and excessive punishments. Liberty rights that protect freedoms in areas such as belief, expression, association, assembly, and movement.

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The Politics of Human Rights in Australia

Political rights that protect the liberty to participate in politics through actions such as communicating, assembling, protesting, voting, and serving in public office. Equality rights that guarantee equal citizenship, equality before the law, and non-discrimination. (Nickel 2006)

Second generation rights are generally conceived of as positive liberty rights and thus presuppose a closer and less wary attitude towards state intervention. Second-generation rights included in the UDHR are ‘social’ or ‘welfare rights that require provision of education to all children and protections against severe poverty and starvation’ (Nickel 2006). The third generation of rights includes group rights. The Universal Declaration does not include group rights, but subsequent treaties do. Group rights are defined as those that ‘include protections of ethnic groups against genocide and the ownership by countries of their national territories and resources’ (Nickel 2006; for a discussion of group rights see Kymlicka 1989). When people talk about human rights, they generally mean freedoms that are universal, individualised, equal and inalienable (or at least, hard to lose),2 that offer protection to a range of perceived human needs and values and that can be enforced, secured or delivered by state action or forbearance. We will be working with this rather loose conception in this book (notwithstanding our appreciation of its limitations and problems) because, as political scientists, we want to understand and explore rights as they are understood by legislators and courts, that is, as they are embodied in the kind of legal mechanisms that, in our view, best protect them. And while we accept that the substantive rights and equality picture is just as – if not more – important than the formal rights and equality picture, it is the latter that is our main focus here, not only for the reasons just given, but also because that would be another kind of book, a very long and detailed one about how to deal with the penetration of all kinds of pathological power into all aspects of human life. We do not presume to know where rights come from and we neither claim nor deny that they are natural. But we do accept that they have powerful rhetorical force and that, once legally enshrined and respected, are a valuable and indispensable source of protection for people’s interests. The world will be a safer place if we consciously choose to think and act as though every human being is a natural-rights bearer and that these entitlements are real and compelling, even if they go legally

Chapter 1: Human Rights

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unrecognised. This is partly because we agree with Mill that democracy alone is insufficient to secure the best conditions for human flourishing. It is not because we assume that democrats don’t care about what happens to minorities (no serious democrat says that it is acceptable to tyrannise minorities, even though this does, in fact, happen in majoritarian democracies), but because democracy is not enough, particularly as it operates in the Australian context.3

Human rights in Australia When the Constitution that inaugurated Australia as a federated nation was being drafted in the late nineteenth century, there appeared to be no urgent sense that Australia needed extensive rights protections. There is scant reference in the Constitution to the relationship between governments and the people; rather, it reads more like a ‘compact between the former Australian colonies and a new federal government’. As Constitutional legal theorist Hilary Charlesworth has observed, the framers were much more concerned about preserving the freedom of interstate trade than creating the conditions for Australia’s inhabitants to live rewarding lives. Overall, our Constitution is rather drab, overlaid with an anxiety about the preservation of a balance of power between the States and the Commonwealth in quite mechanical terms. (2002, 17)

Nevertheless, the Constitution contains some references to the limits of state authority over the individual. Section 41 stipulates that those qualified to vote in state elections cannot be prevented from voting in Commonwealth elections,4 section 51 (xxxi) says that the Commonwealth cannot acquire property on any but just terms, section 51 (xxiiia) prohibits the Commonwealth conscription of people to provide medical services, section 80 outlines the individual’s right to a jury trial under certain conditions, section 116 prohibits the Commonwealth from imposing or restricting religious observance, section 117 protects state residents from discrimination by other states on the basis of their residency, while chapter III provides for the establishment of a judicial system (the latter has been interpreted

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The Politics of Human Rights in Australia

as ‘a commitment to the rule of law’). But, as Charlesworth suggests, ‘these traces add up to a rather limited account of the relationship between the government and the people’ and say ‘nothing at all about our rights to freedom of expression, to privacy, to health or education, or to any of the basic conditions of a life worth living’ (2002, 18). Constitutional legal theorist George Williams similarly notes, ‘What rights that do exist in the Constitution are scattered, and offer little real protection to the Australian people’ (Williams 2002, 43). Unlike the US Constitution, which does have a bill of rights (embodied in the first 10 amendments of the constitution), the Australian framers did not entrench a bill of rights. Anti-American feeling was not the cause; in fact, many of the framers admired the American system and aspired to emulate aspects of it. As political theorist Haig Patapan notes, the ‘founders drew extensively from American constitutionalism’ (Patapan 2000, 42) and James Bryce’s The American Commonwealth – an ‘obvious source book’ for the Australian framers – ‘lay on the parliamentary table throughout the proceedings’ (Patapan 1997, 214). Why then, did they produce a document with so few rights protections? According to A. L. C. Moffat the answer lies in historical circumstances and an uncritical reliance on the English tradition of a kind of political chivalry: Australians had no recent memory of a bitter struggle against tyrannical devices to make them determined to erect permanent protections against their use again. Like anyone else within the English tradition, they must have felt that the protections to individual rights provided by the traditions of acting as honourable men were quite sufficient for a civilised society. (Moffat 1965, 85)

However, not all the framers took this view; for example, throughout the debates, Tasmanian Attorney-General Andrew Inglis Clark, a fervent admirer of the American Constitution and an advocate of natural rights (Charlesworth 2002, 20), sought to insert a clause which guaranteed equal protection and due process to all Australians. He adopted language that has been described as ‘an almost verbatim transcript of a part of the United States’ Fourteenth Amendment’ (Moffat 1965, 86). The clause read:

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The citizens of each state, and all other persons owing allegiance to the Queen and residing in any territory of the Commonwealth, shall be citizens of the Commonwealth, and shall be entitled to all the privileges and immunities of the citizens of the Commonwealth in the several States, and a state shall not make or enforce any law abridging any privilege or immunity of citizens of the Commonwealth, nor shall a State deprive any person of life, liberty or property without due process of law, or deny to any person, within its jurisdiction equal protection of its laws. (Cited in Charlesworth, 2002, 22)

Clark (1901, 386–7) was motivated by a fear that, without an explicit articulation of rights, the potential for the ‘tyranny of the majority’ was everpresent. In a similar vein, Richard O’Connor, the NSW solicitor-general at the time, proposed the inclusion of a due process clause. He wrote that, although he hoped that in ‘the ordinary course of things such a provision would be unnecessary’, it was nevertheless the case that ‘majorities . . . are liable to sudden’ and ‘very often . . . unjust impulses’ (in Charlesworth 2002, 24). In the end, Clark’s proposal was rejected by the convention while O’Connor’s admonition was dismissed as an insult to the civilisation intent on federating. Jurists Isaac Isaacs and Alexander Cockburn both argued that any inclusion of individual rights guarantees was an admission that Australian legislators were capable of injustice and majoritarian tyranny. According to Cockburn’s rather sophistic reasoning, ‘the insertion of these words would be a reflection on our civilisation. People would say: “Pretty thing these states of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice”’ (Cockburn 1898, 1170). Others sceptical of constitutional rights-protections adverted to the threat they posed to state autonomy. For jurist Robert Garran, the Clark clause would have constituted ‘an interference with state rights on behalf of popular rights’ (Garran 1897, 173). Evidence from the debates indicates that the rights about which state governments were most jealous were those relating to their freedom to discriminate on racial grounds. The premier of Western Australia, Sir John Forrest, told the Melbourne convention in 1898 that an equal protection clause would cause problems for Western Australian legislation that restricted the mining rights and privileges of Asian and African aliens and strictly prohibited their employment as miners. African and Asian aliens residing in states without such restrictions

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The Politics of Human Rights in Australia

would be able, he feared, to invoke a Commonwealth equality clause to nullify the Western Australian restrictions. Isaac Isaacs, the first Australian governor-general, reiterated these fears by drawing attention to a decision of the US Supreme Court in which the equal protection clause had been successfully invoked by a Chinese alien to ‘strike down a local ordinance regulating laundries’ (Charlesworth 2002, 22–3). Though there was some dissension, the majority spirit among delegates to the Convention was that states should have the power to discriminate against ethnic minorities, particularly Chinese immigrants (Rubenstein 1997, 302). When the proposal about the state entitlement to discriminate was amended so as to contain no racial implications it was promptly approved. For Moffat, this suggests that the Constitutional framers were well aware of the implications of Constitutional rights protections (1965, 86) and that they were not simply resisting them out of blind faith in parliamentary democracy. Patapan offers other, less sinister, reasons for Constitutional rights omissions. Although the US Constitution was a key reference point for the federal aspects of Australia’s new Constitution, its framers perceived it not so much as a vehicle for emancipation from England as a document that represented an evolutionary advance on English constitutional traditions. According to Patapan, the absence of entrenched rights did not denote a lack of concern for rights protection but reflected a belief that the common law generated by parliament was the best safeguard of rights. Parliament’s right to determine the law was seen not as a weakness but a strength ‘because Parliament itself was seen as a manifestation and defence of another form of liberty – the right to be represented and participate, through voting, in the formulation of laws’. It was the executive and not parliament that the founders regarded as the greater threat to liberty (Patapan 2000, 42). If this is the case, then it is easy to understand why such an attitude persisted and perhaps hardened over time. The Commonwealth Franchise Act 1902 immediately doubled the electorate by enfranchising women; by 1925 over 90 per cent of Australians were regularly participating in federal elections. This undoubtedly reinforced the government’s – and perhaps even the public’s – sense of security about rights, however illusory. It is worth noting here that Australians exhibit unusually high levels of trust in government compared to citizens in other advanced democracies. They also indicate high levels of approval for ‘how well democracy is working’ and ‘very low levels of perceived political corruption’. Australians have also been found to ‘place more value in

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obeying laws’ and ‘voting’ than citizens in comparable voluntary voting settings (Donovan et al, 2007, 102). For British jurist, historian and politician James Bryce, the absence of an American-style bill of rights reflected considerable differences between the US and English perception of where rights threats lay. In Bryce’s interpretation, the US Bill of Rights was designed to protect citizens from a potentially abusive legislature, whereas in the English tradition it was the Crown and not the legislature that was held in suspicion. Parliament was for so long a time the protector of Englishmen against an arbitrary Executive that they did not form the habit of taking precautions against abuse of the powers of the Legislature; and their struggles for a fuller freedom took the form of making Parliament a more truly popular and representative body, not that of restricting its authority. (Bryce 1901, 502–3)

This tendency on the part of the founders to regard the legislature as the natural protector of freedoms was combined with what Patapan posits as their adoption of a utilitarianism of the progressive, Millian variety.5 A parliament restricted by a constitution dense with limitations on its ability to respond flexibly and in accordance with the desires of the people would not be able to deal with ‘political problems as they emerged’, thereby making progress impossible. Rule of law, coupled with a strong parliament to rule in the rights interests of the majority, would be enough. Any attempt ‘to limit Parliament by entrenching rights was to question the motives of Parliament and, implicitly, to assume progress was questionable’ (Patapan 2000, 43). This faith in rule of law and responsible government and the assumption that entrenched rights might prevent parliament from doing its freedomensuring job had been promulgated by the British jurist A. V. Dicey, whose Introduction to the Law of the Constitution (1885) was another important source for the constitutional debates. Australians such as constitutional lawyer Harrison Moore reiterated Dicey’s convictions in their own handbooks on Australian constitutionalism. Moore’s Constitution of the Commonwealth of Australia referred to the American Bill of Rights as reflecting a ‘spirit of distrust’ and insisted that the ‘great underlying principle’ of the Australian Constitution, by contrast, ‘is that the rights of individuals are sufficiently secured by ensuring as far as possible to each a share, an equal share, in political power’ (cited in Patapan 1997, 216).

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The Politics of Human Rights in Australia

In a speech to the American Bar Association in 1942, Sir Owen Dixon (Australia’s ambassador in Washington and later chief justice of Australia), reported – and endorsed – the thinking of the rights-averse Australian founders by pointing to what he saw as the now redundant and undemocratic limitations placed on legislators by the US Constitution. Such limitations, he asserted, were an insult to the people: These [US Constitutional] checks on legislative action were undemocratic, because to adopt them argued a want of confidence in the will of the people. Why, asked the Australian democrats, should doubt be thrown on the wisdom and safety of entrusting to the chosen representatives of the people sitting either in the Federal Parliament or in the State Parliaments all legislative power, substantially without fetter or restriction? (Dixon 1965, 53)

Australia’s longest serving prime minister, Robert Menzies, unreservedly approved these sentiments when he declared that Australian rights were more than adequately secured by electoral processes and the doctrine of responsible government: Should a Minister do something which is thought to violate fundamental human freedom he can be promptly brought to account in Parliament. If his Government supports him, the Government may be attacked, and if necessary defeated. And if that . . . leads to a General Election, the people will express their judgement at the polling booths. In short, responsible government in a democracy is regarded by us as the ultimate guarantee of justice and individual rights. Except for our inheritance of British institutions and the principles of the Common Law, we have not felt the need of formality and definition. (1967, 54)

Menzies concluded on a note of certainty that ‘the rights of individuals in Australia are as adequately protected as they are in any other country in the world’ (1967, 54). In his subtle essay on the cultural reasons underlying the Australian resistance to rights, political scientist Brian Galligan suggests that, from the beginning, Australia never had a rights culture understood in the ‘classical liberal or American sense’ of individualised rights with trumping claims. Instead, Australians were more interested in fairness – and especially

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equality – rather than individual liberty. Our political culture ‘was strongly laced with egalitarian notions of social justice’, pragmatism and a concern for substantive over formal equality (Galligan 1994, 59–60). Given our colonial heritage and the constraints imposed by a scattered population living on an immense and harsh continent, the Australian state was perceived not so much as ‘a leviathan threatening individual rights’ as a ‘vast public utility’ for ‘collective and developmental purposes’ and the provision of ‘decent standards of living for all’ (Hancock 1961 [1930], 235; Galligan 1994, 60–1, 70).

Impediments to change This attitude towards the state – and an accompanying faith in parliamentary democracy – has undoubtedly had a deadening effect on initiatives to expand Australian rights protections. The tendency has been towards adding in rights in statutory form rather than by more radical constitutional means and this has resulted in ‘a patchwork of human rights measures’ (Galligan, 1994, 57). The Racial Discrimination Act 1975 and the Sex Discrimination Act 1984, for example, are rights instruments established by legislation. The common law has also been used as a mechanism for dealing with rights issues of which the Mabo case – the recognition of Indigenous peoples’ title to land – is a good example (Galligan 1994, 70–1). Nevertheless, there have been a number of attempts to insert more rights into the Australian Constitution. These are extensively canvassed in chapter 3 but it is enough to note here that all were unsuccessful. Nevertheless, some glimmers of hope were offered to rights activists (who might be prepared to settle for statutory rights protection) in March 2004 when the ACT parliament passed the Human Rights Act and again in 2006 when the Victorian parliament passed the Charter of Human Rights and Responsibilities Act 2006. The lack of an Australian bill of rights does not necessarily mean that it is a bad idea or that it is unnecessary. Nor does it mean that Australians feel secure in their rights. In fact, survey data taken in 1997 report that 72 per cent of respondents were in favour of some form of bill of rights while 54 per cent indicated that they did not regard their rights as being well protected (Galligan and McAllister, 1997).

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The Politics of Human Rights in Australia

It is also important to bear in mind that the failure of constitutional bills of rights is partly a function of the fact that the Australian Constitution is extremely hard to change; it can only be amended by popular referendum and any referendum proposal must be passed by a majority of the people as a whole (including territory citizens), and by a majority of the people in at least four of the six states. Charlesworth locates Australian rights conservatism in our highly polarised party system whereby any rights initiatives of the Labor Party are strongly resisted by the Liberal–National coalition that has controlled the Australian Senate for long periods of time (historically, referendum proposals need bipartisan support to succeed). She also blames federalism and intense resistance from the states and territories to any perceived interference in their sphere of power (Charlesworth 1993, 213). Another source of resistance to the insertion of more rights into the Constitution relates to a political and legal culture that deems sacred the desires and intentions of the founders. Australians, says Charlesworth, have a tendency to ‘attribute extraordinary foresight and wisdom’ – even ‘almost god-like qualities’ – to the constitutional drafters. Consequently, there is a view abroad that it is ‘wanton and irresponsible heresy’ to presume to ‘tinker with the brilliance of their architecture’ and disturb the status quo (Charlesworth 2002, 26–7). Former High Court judge Michael Kirby refers to this fixation on original intent as a form of ‘ancestor worship’ and reminds judges that the Constitution can be interpreted ‘without the need constantly to look over one’s shoulder and refer to understandings of the text that were common in 1900 when the society . . . was so different’. Rather ‘[i]t is today’s understanding that counts’. Our ‘Constitution belongs to succeeding generations of the Australian people’ and ‘should be read so as to achieve the purposes of good government which [it] was designed to promote and secure’ (Kirby 2000, 14 and passim). The history of attempts to incorporate rights into the Australian constitution reflects the ‘continuing strength and powerful influence of parliamentarianism’ (Patapan 2000, 45). But, for some, an uncritical faith in the judgement of elected representatives to protect our rights is badly misplaced; it has led, says Charlesworth, to a polity governed by a utilitarian mentality that ‘places the rights of vulnerable minority groups at the mercy of the will of the majority’ (Charlesworth 2002, 39; Williams 2002, 43). Relying on the institution of responsible government is fatal because it mistakenly assumes

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that the legislature, of which, by definition, a majority will belong to the same political party as the relevant Minister, will have an interest in calling the Minister to answer for a particular executive action. The tenacity of the system of party loyalty in Australia means that this is unlikely to occur. For the same reason it offers no safeguard against arbitrary legislative action. Responsible government relies ultimately for its effectiveness upon the electorate’s disapproval of the action, and that disapproval is unlikely if the action affects a minority. (Charlesworth 1993, 198)

‘Ballot box accountability’ may not be enough, especially for those who are ‘vulnerable . . . weak . . . [and] have little or no economic power’. For these people, Williams suggests, Australia’s ‘human rights record is poor and our legal structure inadequate’ (2002, 43). Brian Burdekin, a former Australian Human Rights Commissioner, has suggested that it is ‘beyond question that our current legal system is seriously inadequate in protecting many of the rights of the most vulnerable and disadvantaged groups in our community’ (1994, v), while Charlesworth rebukes Australian complacency by pointing to the fact that ‘Australia is now the only country in the common law world without a system for protecting human rights’ (2002, 14). This complacency is reflected in an unwillingness to not only embrace calls for change that come from within, but to implement our international human rights obligations (Otto 2001, passim). In a globalising, conflict-riven and increasingly complex world where the escalating movement, displacement, exploitation and abuse of people, rapid technological change and evolving understandings of morality bring new rights challenges daily, our current constitutional arrangements may not be adequate. As Gough Whitlam noted back in 1970, ‘Existing constitutional arrangements do not provide an adequate, far less an ideal, framework for the solution of contemporary problems. We are entering the future mounted on a penny-farthing bicycle’ (in Williams 2004, 47). There is something attractive – even noble – about Australian political utilitarianism with its attachment to the values of parliamentary sovereignty, equality, fairness and its concern for duty towards others, collective wellbeing and substantive prosperity. Conversely, rights talk, particularly rights talk that makes absolute trumping claims, can seem inflated, inflexible, overly individualistic and even shrill. Therefore the values that utilitarians cherish should not – and need not – be sacrificed under a regime where

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The Politics of Human Rights in Australia

individual rights are better protected than they currently are in Australia. As John Stuart Mill saw it, utility and rights do not, as a matter of course, rival one another but might be mutually necessary conditions. The task of legislators and courts is to find ways of rendering them so.

References Baier, Annette, 1995. Moral Prejudices: Essays on Ethics. Cambridge, MA: Harvard University Press. Bay, Christian, 1977. ‘Human Needs and Political Education.’ In Human Needs and Politics, ed. Ross Fitzgerald. Sydney: Pergamon. —— 1982. ‘Self-respect as a Human Right: Thoughts on the Dialectics of Wants and Needs in the Struggle for Human Community.’ Human Rights Quarterly, 4 February: 53–75. Bede, Harris, 2002. A New Constitution for Australia. Sydney: Cavendish Publishing. Berlin, Isaiah, 2002. ‘Two Concepts of Liberty.’ In Four Essays on Liberty, ed. I. Berlin, London: Oxford University Press. Bryce, James, 1901. Studies of History and Jurisprudence. New York: Oxford University Press. Burdekin, Brian, 1994. ‘Foreword.’ In Towards an Australian Bill of Rights, ed. Philip Alston. Canberra: National Capital Printing. Charlesworth, Hilary, 1993. ‘The Australian Reluctance About Rights.’ Osgoode Hall Law Journal 31(1): 195–232. —— 2002. Writing in Rights: Australia and the Protection of Human Rights. Sydney: UNSW Press. Clark, Andrew Inglis, 1901. Studies in Australian Constitutional Law. Melbourne: Maxwell. Cockburn, Alexander, 1898. Official Record of the Debates of the Australasian Federal Convention, Third Session, 20 January to 17 March 1898. Melbourne: R. S. Brain, Government Printer. Collins, Hugh, 1985. ‘Political Ideology in Australia: The Distinctiveness of a Benthamite Society.’ In Australia, the Daedalus Symposium, ed. S. R. Graubard. Sydney: Angus & Robertson. Cranston, Maurice, 1967. ‘Human Rights, Real and Supposed.’ In Political Theory and the Rights of Man, ed. David D. Raphael. London: Macmillan. —— 1973. What are Human Rights? London: The Bodley Head. Dixon, Sir Owen, 1965. Jesting Pilate and Other Papers and Addresses by Sir Owen Dixon. Melbourne: The Law Book Company. Donnelly, Jack, 2003. Universal Human Rights in Theory and Practice. Ithaca: Cornell University Press. Donovan, Todd, David Denemark and Shaun Bowler, 2007. ‘Trust, Citizenship and Participation: Australia in Comparative Perspective’. In Australian Social Attitudes 2: Citizenship, Work and Aspirations, eds David Denemark et al. Sydney: UNSW Press.

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Fields, A. Belden, 2003. Rethinking Human Rights for the New Millennium. New York: Palgrave Macmillan. Galligan, Brian, 1990. ‘Australia’s Rejection of a Bill of Rights.’ Journal of Commonwealth and Comparative Politics 28(3): 344–68. ——1994. ‘Australia’s Political Culture and Institutional Design.’ In Towards and Australian Bill of Rights, ed. Philip Alston. Canberra: Centre for International and Public Law. Galligan, Brian, and McAllister, I., 1997. ‘Citizen and Elite Attitudes Towards an Australian Bill of Rights.’ In Rethinking Human Rights, eds Brian Galligan and C. Sampford. Sydney: Federation Press. Garran, Robert, 1897. An Australian Handbook of Federal Government. Sydney: Angus & Robertson. Gewirth, Alan, 1996. The Community of Rights. Chicago: University of Chicago Press. Green, Reginald Herbold, 1981. ‘Basic Human Rights/Needs: Some Problems of Categorical Translation and Unification.’ Review of International Commission of Jurists, 27 December: 53–8. Hancock, William, 1961 [1930]. Australia. Reprint. London: E. Benn. Hill, Lisa, 2001. ‘The First Wave of Feminism: Were the Stoics Feminists?’, History of Political Thought, 22(1), pp. 12–40. Hohfeld, Wesley, 1978 [1919]. Fundamental Legal Conceptions as Applied to Judicial Reasoning. Reprint. Westport, CT: Cambridge University Press. Ivison, Duncan, 2008. Rights. Montreal and Kingston: McGill-Queen’s University Press. Kirby, Michael, 2000. ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship.’ Melbourne University Law Review 24(1): 1–14. Kymlicka, Will, 1989. Liberalism, Community, and Culture. Oxford: Clarendon Press. Locke, John, 1990 [1690]. Two Treatises of Government. Reprint. London: J. Dent and Sons. Menzies, Robert, 1967. Central Power in the Australian Commonwealth. London: Cassell. Mill, John Stuart, 1991[1863]. On Liberty and Other Essays, ed. John Gray. Reprint. Oxford: Oxford University Press. Moffatt, R. L. C., 1965. ‘Philosophical Foundations of the Australian Constitutional Tradition.’ Sydney Law Review 5: 59–88. Nickel, James, 2006. ‘Human Rights.’ Stanford Encyclopedia of Philosophy. Accessed online at www.science.uva.nl/∼seop/entries/rights-human/, 8 June 2008. Ober, Josiah, 2000. ‘Quasi-Rights: Participatory Citizenship and Negative Liberties in Democratic Athens.’ Social Philosophy and Policy 17(1): 27–61. Offord, Baden, 2006. ‘Activating Human Rights Through Questions of Value and Activism.’ In Activating Human Rights, eds Elisabeth Porter and Baden Offord. Bern: Peter Lang. Okin, Susan Moller, 1998. ‘Feminism, Women’s Human Rights, and Cultural Differences.’ Hypatia 13(2): 32–52. Ostwald, Martin, 2004. ‘Shares and Rights: Citizenship Greek Style and American Style.’ In Demokratia: A Conversation on Democracies Ancient and Modern, eds Josiah Ober and Charles Hendricks. Princeton: Princeton University Press.

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Otto, Dianne, 2001. ‘From Reluctance to Exceptionalism: The Australian Approach to Domestic Implementation of Human Rights.’ Alternative Law Journal 26(5): 219–22. Patapan, Haig, 1997. ‘The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia.’ Federal Law Review 25(2): 211–36. ——2000. Judging Democracy: The New Politics of the High Court of Australia. Cambridge: Cambridge University Press. Quinn, Warren, 1993. Morality and Action. Cambridge: Cambridge University Press. Rubenstein, Kim, 1997. ‘Citizenship and the Constitutional Convention Debates: A Mere Legal Inference.’ Federal Law Review 25(2): 295–316. Scanlon, Thomas, 2003. The Difficulty of Tolerance: Essays in Political Philosophy. Cambridge: Cambridge University Press. Shue, Henry, 1996. Basic Rights: Subsistence, Affluence and US Foreign Policy. Princeton: Princeton University Press. Sumner, L. W., 1987. The Moral Foundation of Rights. Oxford: Clarendon Press. Williams, George, 2002. ‘Five Reasons to Rewrite the Constitution.’ In The Big Makeover: A New Constitution: Labor Essays, eds Glenn Patmore and Gary Jungworth. Sydney: Pluto Press. ——2004. The Case for an Australian Bill of Rights: Freedom in the War on Terror. Sydney: UNSW Press. Wolff, Jonathan, 1996. An Introduction to Political Philosophy. Oxford: Oxford University Press.

Chapter Two

PROTECTING HUMAN RIGHTS

Without a bill of rights, Australians are required to look to other institutions for their human rights protection. The Constitution, parliament and the courts each play a role in this process. The Constitution includes some limited rights provisions, the legislature has passed laws to protect rights in certain areas and the courts have upheld some rights under the common law. However, the idea advanced at the time of federation that these institutions would combine to provide an adequate safeguard against the infringement of human rights by government is now seriously under question. The limitations that exist within and among these institutional arenas mean that they provide, at best, a patchy net of protection through which many minorities slip. Australia’s existing human rights framework has not come to terms with important developments of the past 50 years: changing community expectations about the importance of human rights, the dominance of the executive over parliament and the rise of larger and more powerful government. Attempts by each institution, especially the High Court, to interpret the Constitution and the common law to reflect these changes, has led to controversy and conflict between the different branches of Australian government. The effort to bring the international human rights regime to bear in national human rights debates has further complicated the scene and resulted in rights seekers becoming even more confused about where to look for protection. This chapter outlines the measures for protecting human rights within each institutional arena. It commences with a discussion of the rights

27

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The Politics of Human Rights in Australia

protection provided by the Constitution and the common law and considers High Court interpretation of rights issues that have emerged from constitutional and common law cases. It then reviews the role of parliament in protecting Australian human rights, detailing some of the areas where it has and has not been active. The chapter also provides an outline of the nature and place of the international human rights laws and norms in the Australian context and, finally, briefly considers the engagement of non-government actors in protecting human rights in Australia.

Constitutional protection of rights Unlike many other countries with a similar legal system, including Canada, the USA, India and South Africa, Australia does not have a constitutionally entrenched bill of rights. Nor has it followed the model adopted by New Zealand (1990) and, more recently, the United Kingdom (1998), in adopting a legislative bill of rights (the difference between the two models of rights is detailed in chapter 3). Instead, as was pointed out in chapter 1, the majority of Australian politicians and many senior members of the judiciary have held to the view, first articulated in the constitutional debates of the late 19th century, that Australia does not need a bill of rights. This position has been based on two premises: first, that a bill of rights would impede states’ rights, and second, that the rights of Australians are, and will continue to be, best protected under the Westminster model, which provides responsive common law and parliamentary systems (Charlesworth 2002, 17–25; Williams 2002, chapter 2). This position reflects a commitment to parliamentarianism whereby ‘Parliamentary supremacy and the rule of law protect freedom’ (Patapan 2000, 42). While the protective shield against state authority offered by a bill of rights was put aside in the Australian context in favour of parliamentarianism, the Constitution nonetheless came to contain a number of express rights provisions. Legal commentators debate the full extent of these provisions (see O’Neil et al. 2004; Williams 2002, 47–9), but most agree that some limited rights protection exists in relation to r voting (section 41) r protection from the Commonwealth acquiring property except on just

terms (section 51)

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r trial by jury (section 80) r prohibition on the establishment of a state religion, or of the restriction

of religious observance (section 116)

r protection of residents of one state from discrimination by another state

on the basis of residence (section 117). These provisions can be described as limited in at least two ways: first, they all rest on limiting the power of government rather than on conferring rights (Saunders 2002, 103), and second, they are concerned with the entrenchment of key aspects of federalism rather than providing a comprehensive system of rights protection (Charlesworth 2002, 18; Saunders 2002, 103). Not only does the Australian Constitution lack a comprehensive statement on rights, but on those few occasions when these constitutional rights provisions have been challenged through the High Court, it has also adopted a stance of ‘strict legalism and judicial restraint’ (O’Neil et al. 2004, 93). The right to trial by jury, for instance, has been found to apply only to indictable offences (which tend to be more serious crimes such as those involving violence) and not summary offences (which are lesser crimes, including dishonesty offences and others such as drink driving) under Commonwealth law, which makes it a relatively worthless provision in terms of restricting Commonwealth power (Williams 2002, 104). Section 116, which relates to freedom of religion, has been narrowly interpreted with the Court rejecting claims that it provided a broad principle separating church and state or the free exercise of religion (Charlesworth 2002, 29–30). The High Court has also taken a very restrained approach in cases concerning the constitutional protection of voting rights (see chapter 4). For many, the High Court’s moderation is commendable as it demonstrates its acceptance of parliament as the main forum for deliberating rights issues. This is seen as especially important in constitutional cases as the High Court is the final arbiter on these matters and its rulings cannot be overturned by the legislative branch. The respect shown by the High Court for parliamentary supremacy – the cornerstone of responsible government – has, however, had its limits. Reflecting a degree of frustration with the limited rights provisions in the Constitution, the High Court, during the early 1990s under Chief Justice Mason, took a more expansive view of constitutional rights. It did so through

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the adoption of the controversial jurisprudence of implied rights. In essence, this meant that a majority of the Court at the time took the view that ‘the Constitution did not operate in a political vacuum but is to be interpreted in the light of the foundations upon which it is built, namely democracy as it developed into a form of responsible government’ (O’Neil et al. 2004, 97). This jurisprudence was developed first in relation to Australian Capital Television Pty Ltd v Commonwealth (1992) and Nationwide News Pty Ltd v Wills (1992), two cases involving the issue of political communication. In the former case, the six to one majority decision reflected the judges’ view that the Constitution needed to be considered in light of the fact that it existed within a representative democracy, which required the exercise of free political communication. In her judgement in the case, Justice Mary Gaudron noted that the attempt by the federal government to limit freedom of communication through legislation was ‘inconsistent with a Commonwealth which is a free society governed in accordance with the principles of representative parliamentary democracy’ (in O’Neil et al. 2004, 97). The move by the High Court to find implied rights in the Constitution was highly contentious and drew strong criticism from a range of commentators across the political spectrum. Politicians from conservative and Labor parties argued that it usurped their prerogative to make decisions relating to how elections are conducted. Some judges believed that their colleagues had overstepped the mark, with one suggesting that the Court had ‘manufactured [Civil Rights] out of thin air’ (Meagher 1999). Political scientist Professor Graham Maddox summed up much of this opposition when he argued that the decision impugned longstanding and cherished conventions of parliamentary democracy: What is alarming about the court’s action is that its judgement itself attacks the more fundamental basis of representative and responsible government – namely that the people are sovereign and exercise their sovereignty through the elected representatives charged with legislating for their interests. (1996, 245)

Another political scientist, Haig Patapan, took a different view. He suggested that the Court’s arguments in favour of implied rights represented no radical break with Westminster traditions. Justifications for an implied right

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to political communication were grounded in the view that these rights stemmed from political institutions, and were not based on arguments about natural rights, as they are in the US Bill of Rights, or on notions about human dignity that inform international human rights standards. In Patapan’s view, these decisions were ‘compatible with a constitutionalism that considered representative and responsible government as essential for human development and progress’ (2000, 60). The durability of this implied approach to interpreting the Constitution appears to have reached its limits, for the time being at least (on this point, see Kildea and Gelber 2007). In Lange v Australian Broadcasting Corporation (1997) the High Court came to clarify and ultimately limit the scope of the right to political communication (Charlesworth 2002, 31), while most of the more recent efforts to find other implied rights in the Constitution have not succeeded (such as in McGinty in relation to the principle of one vote one value, and in Kruger and Levy concerning, among other things, the right to freedom of movement; see details of Roach in chapter 4 for one exception). This retreat from implied rights can be explained in part by the change in the composition of the High Court bench since the retirement of Chief Justice Mason. According to Patapan (2000), it is also the result of the Court’s shift towards incorporating international human rights laws and norms into its decisions. In his view, it is this shift towards adopting international human rights norms, rather than its implied rights jurisprudence, that is the radical move; it represents a break with the traditional interpretation that sees rights as the outcome of deliberations within political institutions. Some commentators also emphasise the importance of other aspects of the Constitution, especially the federal division of powers, as an often overlooked aspect of rights protection in Australia. One of the strongest proponents of this view is political scientist and constitutional expert Brian Galligan, who argues that Australia has an entrenched system of constitutional government in which power is diffused among multiple governments with limited powers, in which an independent court decides jurisdictional disputes concerning a government’s powers, and in which the powerful national government does not usually control the Senate. Such dispersion of power substantially checks and restrains government in Australia and is a powerful institutional protection for human rights. (1995, 208)

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How well does this theory hold up in practice? There is no doubt that, because of their residual powers, states continue to play an important legislative role in Australia. As a result, rights seekers have, under certain circumstances, the capacity to ‘play governments off against each other’ to achieve improved human rights outcomes. Feminist activists have achieved some success with this strategy when seeking to protect women’s rights (see Chappell 2002, chapter 6) and, in recent years, we have witnessed subnational governments, including the Australian Capital Territory and Victoria, take up the running on implementing legislative bills of rights when the Commonwealth has been reluctant to move in this direction (see chapter 3). States have also created their own anti-discrimination legislation and committees that scrutinise legislation for its rights implications (Saunders 2002, 109–11). But the division of powers is no protection against rights infringements. States have been at least as likely as the federal government to infringe human rights. They have imposed significant limits on gay, Indigenous, prisoner and women’s rights which oftentimes have been overturned only because of Commonwealth intervention. Another reason for questioning the argument about the benefit for rights stemming from the division of powers concerns the shrinking power of state governments vis-`a-vis the Commonwealth. Since federation, the Commonwealth has been able to extend its powers through fiscal capacity and constitutional interpretation (most recently in the High Court’s Workchoices decision), thereby reducing the dispersal of power between different levels of government (Brown 2006; Kildea and Gelber 2007). A powerful national government can dominate both houses of parliament and use its power to diminish rights. This was amply demonstrated in the last term of the Howard government when it used its dominance in both houses to abridge the rights of Indigenous peoples, refugees and terror suspects (see chapters 5, 7 and 8). In sum, while the division of power in the Constitution may provide some bulwark against executive power, it is certainly not foolproof. Whether it is through express rights provisions, implied rights or the division of powers, or the three combined, the Australian Constitution fails to provide a comprehensive system to protect human rights. Constitutional law expert Cheryl Saunders sums up the problem in these terms: ‘the stated protection offered by the Australian constitution is arbitrary and patchy. The scope of rights protection is unclear and its rationale is complex’

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(2002, 104). In Williams’ view there is ‘little logic or order in the protection of rights under the constitution’, only an ‘ad hoc scheme in search of coherence’ (2002, 48). If we put aside the Constitution as a feature of the Australian human rights regime and shift our focus to the role of responsible government in protecting rights, we find that it too is limited in its ability to protect rights. As we shall see, the interaction between the legislature and the common law, which forms the basis of responsible government, leaves important gaps in the protection of civil and political rights and does nothing to address the need for a more robust rights regime in the face of powerful modern-day government.

Common law protection of rights The common law is a system of law developed by judges who apply standards to cases. These standards are built up through precedent, so that the law develops over time. The common law, as Williams describes it, is ‘a work in progress’ (2002, 15). Those who advocate and rely on common law protection of rights suggest it has two advantages over a constitutionally entrenched bill of rights: first, it is flexible; judges are ‘free to revise past practice and are responsible for adapting the law to accommodate contemporary standards and to deal with problems that may not have been foreseen’ (Tucker 1997, 122). Second, counter-majoritarian judicial power is kept in check by the parliament, which can enact legislation at any time to override undesirable judicial decisions. Yet there are weaknesses in this defence of the common law. As the following discussion shows, there is the issue of the extent to which judges are permitted (or willing) to act to ensure that the common law reflects contemporary views on human rights. Also, the ‘parliamentary support, or at least, parliamentary restraint’ (Saunders 2002, 105) that is required to advance rights through the common law is often lacking in the Australian context. In Australia, the common law has arguably been the least important institution in terms of upholding human rights but it has provided some protection in certain areas. In the 1992 Dietrich case for example, it recognised that the courts have power to stay proceedings that will result in an unfair trial (Mason 1998, 45). The most significant recent common law ruling in relation to rights concerned the High Court’s 1992 Mabo judgement

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that granted native title to Indigenous Australians. The majority opinion in this case argued that the common law could, under certain circumstances, be changed to address glaring injustices. In handing down his judgement, Chief Justice Brennan noted that ‘If a postulated rule of the common law expressed in earlier cases seriously offends contemporary values [of justice and human rights] the question arises whether the rule should be maintained and applied’ (Brennan, in O’Neil 2004, 112). The answer in his view – as well as that of the majority – was a firm ‘no’. For many, including numerous politicians, the High Court decision was an outrage, a sign of the High Court interfering with the law-making prerogative of parliament. Critics of the Mabo ruling expressed the commonly held view that ‘legislators are generally better placed than judges to make informed policy judgements and they enjoy a capacity to mobilise political support that judges lack’ (Tucker 1997, 121). The decision created further division because of the willingness of some judges to rely on international human rights law in making their judgements. For supporters of the grounds for the Mabo judgement, the decision was a sign of the flexibility of the common law and its ability to reflect prevailing circumstances. They argued that the legislature had been reluctant to create statute law to adequately address Indigenous land rights or provide a more expansive legislative bill of rights to guide judicial decision making. Under such circumstances, and when faced with an egregious rights abuse such as the dispossession of Indigenous Australians of their land, there was little alternative but for the High Court to bring the law into line with contemporary standards of human rights and justice. Or, to put it another way, given that statute law prevails over common law, the onus is on parliament to make sure that it enacts legislation to address rights issues. If it fails to do so, then the common law must step in to compensate. Kinley addresses this point in a general way when he argues that, Without exception, legislatively expressed rights fail to anticipate or provide for every circumstance in every detail that might arise in respect of their use or abuse. When such situations lead to litigation, the judiciary may be compelled or feel itself to be compelled to determine the rights in question through refinement, augmentation or even reformulation of their legislatively provided details. (1998, 21)

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The difference of opinion surrounding the Mabo case raised important issues about the rightful role of the Court in reformulating the law. Those who predicted that the High Court would continue in an active mode after Mabo were proven wrong (Doyle and Wells 1999, 74). With some limited exceptions (and aside from Justice Kirby), in recent years the High Court Bench has tended to revert to a more conservative reading of the law (Patapan 2003; Kildea and Gelber 2007, 659–60). As a result, common law has played a less central role in rights protection. One area in which the common law has been important in defending rights has been in the interpretation of statute law, that is, law made by parliament. Where statutory law is silent on rights, Australian judges have interpreted it to uphold rights and will only do otherwise if the parliament is ‘“unmistakably clear” in its intent to restrict a fundamental freedom’ (Williams 2002, 17). This long-held principle was reasserted by Chief Justice Gleeson in 2004 in the Al-Kateb v Godwin case (ALR 124 at 128, 9 in Gelber 2005, 312) when he stated: Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless an intention is clearly manifested by unambiguous language, which indicates that the legislature had directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.

In other words, the judiciary has given the parliament the benefit of the doubt that in drafting legislation it does not intend to overturn rights. But this is only a very weak protection: where it is the intention of legislators to erode rights, the common law is powerless to stop them. As Justice McHugh has stated, the ‘justice or wisdom of the course taken by the Parliament is not examinable’ by the courts (in Gelber 2005, 321). In the case of Re Woolleys (2004) concerning the mandatory detention of children of asylum seekers (see chapter 7), the High Court upheld the detention as valid because there was no uncertainty as to the parliament’s intention to abridge the rights of all asylum seekers (Gelber 2005, 315). In the future, various anti-terrorism laws introduced since 2001 are sure to provide other examples of the limits of common law. Although many aspects of these laws are yet to be tested in court, their objective is to place limits on free speech and interfere with

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The Politics of Human Rights in Australia

rights relating to evidence, access to counsel and habeas corpus. Given that judges’ hands are tied when parliament is explicit in its intention to limit rights, it is unlikely that the common law can provide any buffer against legislative interference in these long-held common law civil and political rights. Other limitations of the common law are evident. Judges can only adjudicate cases that come before them. This means that, even under ideal circumstances, the common law will only ever provide an incomplete set of rights standards. Another problem is the inaccessibility of legal redress for many Australians: pursuing matters through the courts is an expensive, time-consuming and uncertain process. These constraints, combined with the dominance of the legislature within the Australian system of responsible government, might suggest that it is more rational for rights seekers to look to the legislature rather than the common law for the rectification of grievances. But the operation of this institution is also far from perfect where the protection of human rights are concerned.

Legislative protection of human rights The framers of the Constitution put great faith in parliament as the most democratic branch of government to uphold the rights and freedoms of Australian citizens. In theory, the legislature is expected to respond to the rights demands of the people. Should the government fail to respond to such demands, the people have opportunities to dismiss it at regularly held elections. As Saunders puts it, our system is based on the assumption that ‘Parliaments would adequately defend and, if necessary, extend rights, if only out of a sense of self-preservation. If they did not, regular, fair, and free elections offered an adequate sanction’ (2002, 87). What laws has the federal parliament enacted to enhance the protection of rights? How effective have they been? How well does the theory of a legislative protection of human rights fit the practice of Australian politics? If we think of human rights in its broadest sense (that is, encompassing both positive and negative rights; see chapter 1), it can be argued that the Australian parliament has introduced a great number of measures to protect fundamental rights and freedoms. The creation of the social security and health systems, freedom of information and privacy legislation,

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and – notwithstanding their recent erosion – laws relating to liberty and security of the person, all contribute to upholding and protecting human rights broadly understood. Undoubtedly, the most important rights provisions provided through parliament have been electoral laws that provide for a fair and functioning democracy. In Australia, it has been through parliament, and not the Constitution, that citizens, including women (in 1902) and all Aboriginal peoples (in 1962), have been granted voting rights. As a sign of the importance of these rights, the parliament legislated in 1924 to make voting compulsory. The federal, state and territory parliaments have established an extensive administrative apparatus to ensure that the standards of electoral administration in Australia are extremely high. Our electoral offices and commissions are unusually professional (Orr et al. 2003, 400), well funded, independent and accountable, sometimes going to great lengths in order to ensure equality of voting opportunity for all Australians, no matter the state of their health and wherever they reside (though many have still managed to fall through this seemingly tight net). Combined with the institution of compulsory voting, this has meant that Australian elections are not only perceived to be free and fair but are also very well attended. Australia enjoys one of the highest and most socially even turnout rates in the industrialised voting world. As a result of compulsory voting, the average turnout rate in the postwar period has been around 95 per cent of registered voters (and 83 per cent of voting age population) (Hill and Louth, 2005). Aside from its ability to significantly improve turnout, compulsory voting has almost completely closed the socioeconomic status (SES) voting gap that exists in most voluntary systems because of the complex raft of measures that operates here to ensure that voting is as easy as possible for every citizen (Hill 2002; 2004). Australia’s high and socially even levels of voting participation and trusted electoral administration has no doubt led to the perception that rights are safe in the hands of elected representatives. While creating and enforcing voting rights, the federal parliament has debated but declined to legislate for an overarching Australian bill of rights. Instead, it has introduced legislation to address a few select areas of discrimination. Over the past three decades it has passed the Racial Discrimination Act 1975 (RDA), the Sex Discrimination Act 1984 (SDA), the Disability Discrimination Act 1992 (DDA) and the Age Discrimination Act 2004 (AD). The Keating government also enacted the Human Rights (Sexual Conduct)

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The Politics of Human Rights in Australia

Act 1994 to protect the privacy of same sex couples (see chapter 6). In 2002, the parliament passed the International Criminal Court (Consequential Amendments) Act, which opened up the possibility of criminal sanctions against any Australian committing crimes against humanity (for a full discussion see Charlesworth et al. 2006, 71–82). It should be noted that the parliament’s action in these areas has not been without controversy. Lacking the constitutional authority to address discrimination measures, the validity of these Acts has depended on the federal parliament’s external affairs power established in section 51 (xxix) of the Constitution. As the High Court found in the 1983 Tasmanian Dams case, the parliament can implement legislation to bring it in line with treaties ratified by the Commonwealth. The Commonwealth parliament established administrative machinery to oversee its anti-discrimination legislation. In 1986 it passed the Human Rights and Equal Opportunity Commission Act, which extended the powers of the existing Human Rights Commission. The Act gave the Human Rights and Equal Opportunity Commission (HREOC), now called the Australian Human Rights Commission, restricted powers to inquire into and conciliate complaints of unlawful discrimination initially under the race and sex discrimination legislation, and later extended its coverage to include Acts concerning disability and age. Allowing for administrative rather than judicial determination of these acts was thought to be ‘less formal, less expensive and more expeditious’ (Mason 1998, 27–8). In the first instance, the Commission will attempt to conciliate complaints, but if unsuccessful it will then prepare a report and recommendations for the attorney-general, which must be tabled in parliament. In the years 1986–2008, the Commission had presented 39 reports to the minister; of these, 15 were complaints related to the mandatory detention of asylum seekers (see HREOC 2008). The HREOC is also empowered to hold inquiries into human rights issues. Arguably, it is through this function, where it has worked consistently to bring significant human rights abuses to government attention, that the HREOC has been most influential. Its reports into homeless children, the Stolen Generations of Indigenous children, the detention of children of asylum seekers, the absence of a national paid maternity leave scheme and discrimination against same-sex couples have sparked national debates and influenced government policy responses – albeit not always in the direction intended by the Commission – in each of the respective areas.

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These legislative measures for addressing human rights undoubtedly have important symbolic value, in that they highlight concern about particular areas of ongoing discrimination in Australia and changing expectations about how more marginalised members of the population should be treated. However, they are inadequate in a number of respects. None of the Acts fully implement the range of rights included in the international treaties on which they are based and they rely on individual complaints-based mechanisms that put the onus on those most vulnerable to human rights abuses to seek redress. Further, the HREOC has only limited authority to enforce antidiscrimination measures and no power at all to address other human rights issues, such as torture or inhumane detention (Saunders 2002, 105; Sidoti and Wilke 2000, 163–4). When these factors are combined it is clear that in Australia procedural safeguards against unlawful discrimination are very weak (see Omar 1995). In assessing Australia’s legislative record on human rights, it is not only important to identify the areas where the federal parliament has taken positive action to outlaw forms of discrimination, but it is also equally crucial to consider any areas where the legislature has introduced measures to limit human rights or to roll back existing provisions, as well as where it has maintained a silence, thus forcing rights seekers to look elsewhere for protection. There are many examples of the diminution of rights by the Australian federal parliament. As international rights expert Hilary Charlesworth points out, far from protecting human rights, the legislature has played a significant role in restricting them. As she argues, Our legal history is littered with laws that discriminated against particular groups: the legal framework that allowed Aboriginal children to be taken from their families; the laws that made homosexuality a criminal offence; the laws that institutionalised discrimination against women; immigration laws that effectively restricted entry into Australia to particular races. (2002, 38)

But this is not merely a historical trend. As Charlesworth notes, ‘Australian parliaments today tolerate laws that . . . treat boat people who apply for refugee status more harshly than other refugee applicants, laws that sanction discrimination against women and laws that allow degrading treatment of prisoners’ (2002, 38).

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The Politics of Human Rights in Australia

A clear example of a measure to limit human rights occurred in 1997 with the decision to enact the Hindmarsh Island Bridge Act. This Act prevented the protection of any significant Aboriginal heritage sites in the bridge construction area. When the Act was challenged in the High Court by local Indigenous groups, the Court ruled that it was a valid exercise of the Commonwealth parliamentary power. Although the Court did not assess the question of whether it was constitutional to introduce laws that disadvantaged certain racial groups, this was effectively what the Hindmarsh Island Bridge Act achieved (Malbon 2002, 42). Not only has the federal parliament restricted the coverage of rights to certain groups, but it has also demonstrated a willingness to whittle away rights provisions where they do exist. A recent example concerned the measures introduced by parliament in 2007 to address Indigenous affairs in the Northern Territory. Although there was consensus between both major parties and many Indigenous leaders on the urgent need to address Indigenous problems in the Northern Territory, there were strong differences of opinion about the way it was to be achieved. In legislating for this policy, the former Coalition government used its majority in both houses of parliament to pass laws that suspended the provisions of the RDA to the intervention measures. It did so on the basis that it would provide a ‘legal certainty’ to its actions. The HREOC was concerned by these moves, pointing out that individuals affected by the intervention measures have no right to bring a complaint under the RDA. They can also not challenge the validity of any laws introduced by the Northern Territory government under the auspices of this legislation (such as in relation to alcohol restrictions or changes to permits for entry into Aboriginal land) under . . . the RDA. (HREOC 2007)

As such, HREOC argued, the suspension of the RDA seriously challenged ‘Australia’s reputation as a nation committed to equality’ (2007). HREOC and others critical of the suspension of the RDA were not necessarily arguing against the intervention, but wanted it to occur within the existing rights framework, of which the RDA was a central pillar (see chapter 5). Weakening the application of the RDA is just one of a number of moves in recent years to restrict existing human rights provisions. Although the legislation did not ultimately pass, in 2000 the Howard government introduced amendments to the Sex Discrimination Act to allow for discrimination between

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different groups of women in order to block single women and lesbians from accessing reproductive technologies (see chapter 6). The 2006 changes to electoral laws that removed prisoners’ voting rights are another case in point (see chapter 4). The raft of anti-terror legislation (discussed in detail in chapter 8) passed since 2001 also demonstrate parliament’s willingness to legislate away existing rights. It is not only parliamentary action, but also parliamentary inaction, that must be considered when assessing rights protection. In Australia, there are many instances where, despite gaping holes in protection under common law, the legislature has refused to act to protect against human rights abuses. Until the 1990s, one of the most obvious and significant silences of the federal parliament concerned Aboriginal land rights, an important symbolic and substantive issue concerning Indigenous citizenship. As Chesterman and Galligan have noted, ‘[T]the inability of legislatures to articulate a broadly defined right of Aborigines to the land from which they were dispossessed will surely be looked upon as one of the less noble facets of Australian parliamentary democracy’ (1997, 205). During the 1970s and 1980s each state and territory jurisdiction introduced some limited Aboriginal land rights legislation. Although given the constitutional authority in 1967 to create a national land rights scheme, the Commonwealth was reluctant to do so, instead limiting its response to the Northern Territory through the Aboriginal Land Rights (Northern Territory) Act 1976. These relatively modest measures failed to provide a coherent national framework of protection. There was a range of reasons for the federal parliament’s reluctance to act in this area, including the difficulty of reconciling the conflicting interests of the states and territories and the mining, farming and Indigenous communities. Public opinion was also a significant factor. As Murray Goot and Tim Rowse, two leading political scientists, argue, during the period of the Hawke ALP government, the perception that there existed an important voting bloc of ‘middle Australians’ opposed to the development of a national land rights scheme ‘frightened the government off’ legislating these rights (2007, 96). With no action from the ‘representative’ branch of government, those pursuing these rights had little option but to look elsewhere for a remedy. In this case, elsewhere meant the common law, which led to the contentious High Court Mabo (1992) and Wik (1996) judgements, which recognised native title (Chesterman and Galligan 1997, 205–12 on Wik;

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Brennan 1998). As Solomon remarks in relation to Mabo, ‘The High Court achieved for at least some Aboriginal people what the political process would never have given them – the possibility of establishing their native title over some lands’ (1999, 27). As noted above, the Mabo decision elicited strong criticism of the High Court from federal politicians, who argued that the justices had overstepped their role by creating, rather than adjudicating law (Solomon 1995, 46). Given the circumstances, this view may be unreasonable. Had the parliament been willing to respond to the demands of generations of Indigenous Australians to address land rights, there would have been no reason for them to look beyond the parliamentary realm to achieve rights protection, and no reason for the High Court to enter into a controversy about its proper role in protecting contemporary human rights standards. It is worth noting that the Commonwealth parliament has a committee system that has been established to act as a rights watchdog over government legislation (Uhr 2006, 49). Three committees are especially important in playing this role: the Senate’s Regulations and Ordinances Committee (ROC), the Scrutiny of Bills Committee (SBC) and the Joint Standing Committee on Treaties (JSCOT). ROC has existed since the 1930s and its job is to scrutinise government regulation making. It assesses regulations for their compliance with the protection of personal rights and the promotion of parliamentary propriety (Uhr 2006, 51). The SBC was created in the 1980s and its role is to consider whether legislative bills trespass unduly on civil and political rights. This committee has become the prototype for a number of Australian states and territories. JSCOT, established in 1996, is the newest committee to scrutinise international treaties, including those pertaining to human rights. While each of these committees have contributed to keeping governments accountable for their actions on human rights (see Uhr 2006; Evans and Evans 2007; Charlesworth et al. 2006), the committee system in general has a number of fundamental weaknesses. Obviously, the system does nothing to counteract the problem of governments failing to act to develop comprehensive human rights legislation. When they do have the opportunity to scrutinise legislation, the committees suffer from inadequate time and resources to undertake an adequate review of legislation and a lack of authority to force governments to adopt committee recommendations (see Winterton 2006, 309; Evans and Evans 2007). As Evans and Evans have commented:

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[H]uman rights issues are considered in a largely unsystematic fashion at early stages of the policy process in most Australian jurisdictions . . . [while] parliamentary analysis is also largely unsystematic, with sporadic and limited contributions by scrutiny committees and specialist committees like the Senate Legal and Constitutional Committee. (2007, 29)

A number of proposals for reform of the present system have been made, including the need to undertake a prelegislative human rights impact analysis, along the lines of economic and competition impact statements (Evans and Evans 2007, 31; Horrigan 2006; Winterton 2006, 309). The Australian federal parliament has a less than impressive record in introducing and maintaining legislation to uphold the rights of minority groups. Why has the system failed in this area? One of the most important reasons is the entrenchment of a system of party responsible government that has resulted in the dominance of the parliament by the executive. As Galligan notes, ‘[i]nstead of executive governments being responsible to parliament, parliaments have been responsible to the executive government’ (1995, 205). The dominance of the government of the day reduces the opportunity for parliament to act as a safeguard against executive excess – or, equally importantly, executive inaction – or as a forum for robust debate. Party domination reduces the ability of parliamentary committees, including those established to scrutinise the rights and treaty implications of bills, to do their job properly (see Saunders 2002; Charlesworth et al. 2006, chapter 3). This particular weakness is highlighted when the government dominates both houses of parliament. In hindsight, it is also apparent that the Constitutional framers had misplaced confidence in the populace being sufficiently concerned about these issues to remove governments from office over rights issues. Indeed, the reverse might even be the case in Australia: the Howard Government won the 2001 election with a platform that included plans to further restrict the rights of asylum seekers and of terror suspects. While these issues might not have won it the election, voters obviously did not place enough priority on them to reject the incumbent Coalition government. Similarly, at the state and territory level, elections are often fought on the issue of which side of politics promises to be the most tough on ‘law and order’. Within Australia’s majoritarian political culture, there appears to be little regard for minority rights, especially if they are seen to infringe on those of the mainstream. In sum, legislative protection of rights

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in Australia is tenuous and majority driven, leaving minorities with little choice but to seek rights protection and redress elsewhere.

International law The final element in Australia’s human rights protection regime is international human rights norms and law. This facet is important as it influences the operation of all the others. International human rights law helps shape judicial interpretation of constitutional and common law, and provides the human rights treaties that form the basis of federal human rights legislation. Some UN treaties also offer Australian citizens recourse to an international human rights body; however, as with the other aspects of the existing human rights regime, international law has its limitations. In the past, federal politicians have eschewed the application of international standards in Australian law on the grounds that doing so would diminish national sovereignty and parliamentary authority. At the same time, the parliament has proven reluctant to enact legislation to cover all the provisions of the human rights treaties ratified by the Commonwealth, thus leaving them open to judicial interpretation. In the following discussion we consider how and where international law has been used to strengthen human rights in Australia and consider why its application has been so politically contentious. International human rights law has developed relatively recently, arising largely out of the experiences of the Second World War and the desire of nation-states to create a system that would protect against a repetition of the atrocities of this period. This law can be divided into two categories: international customary law and treaty law. International customary law is the body of law that has developed through ‘uniform and consistent state practice across a wide range of states and where there is evidence that this practice is maintained out of a sense of legal obligation’ (Charlesworth et al. 2006, 32). Once a rule has been established as part of customary law, states cannot defer from it, whether or not they agree with it. Acts of torture, for example, are prohibited under international customary law even in those states which have not signed up to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. International law is, by its nature opaque and much less certain that treaty law, and for that reason in Australia customary law has taken second place to

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international treaty law in influencing decision-making (Charlesworth et al. 2006, 34). An international treaty can be either bilateral (between two states) or multilateral (between three or more states) and is a written agreement ‘governed and made binding upon its parties by international law’ (Charlesworth et al. 2006, 26). In ratifying a treaty, the Australian government undertakes a two-stage process. It first signs the treaty, which signifies its intention to commit to it and, theoretically, gives it time to make the necessary legislative changes to bring Australian law into compliance with the treaty. The second stage, ratification, occurs when Australia deposits a formal document accepting the treaty provisions (and including any reservations) with the relevant treaty body, which is usually situated within the United Nations system. As a sovereign nation, Australia is able to make reservations to a treaty, stipulating areas where it does not agree to be bound by its terms. It has done this, for instance, in relation to the Women’s Rights Convention where it has a reservation to the provision of paid maternity leave. Once ratified, Australia is obligated under international law to give the treaty effect. However, as we shall see, this obligation is often flouted in practice and there is little action that can be taken under international law to address such evasions. Australia has what is known as a ‘dualist’ legal system where the international and domestic law operate in tandem (Kirby 1999, 1). When Australia enters into an international treaty, it is an act of the executive. Although since 1996, the government of the day must allow the JSCOT to scrutinise proposed treaties, the parliament is not able to place any formal limits on the executive’s ability to decide to ratify a treaty (Chiam 2004, 265). However, ratification of a treaty by the executive does not mean that it automatically becomes law; it must first be enacted by a statute. In this way, law-making powers in Australia remain with the parliament and not the executive. Once a treaty has been ratified, parliament can decide whether to legislate to enact the treaty (or part thereof). The federal parliament has a mixed record in enacting international human rights treaties. As noted above, the Australian parliament has taken steps to enact select aspects of some of the UN treaties ratified by the Commonwealth government through its anti-discrimination legislation in the areas of sex, race, age and disability. It has also enacted elements of the Rome Statute of the International Criminal Court 2002. However, the legislature has also refrained from creating statutes in certain areas. For

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Table 2.1 Australia’s ratification of human rights treaties

Treaty Convention on the Prevention and Punishment of the Crime of Genocide Convention Relating to the Status of Refugees/Protocol Relating to the Status of Refugees International Convention on the Elimination of All forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights Convention on the Elimination of All Forms of Discrimination against Women Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment Convention on Rights of the Child Rome Statute of the International Criminal Court International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

Date of treaty’s entry into force

Date of Australia’s ratification

12 January 1951

8 July 1949

22 April 1954 4 October 1967

22 January 1954 13 December 1973

4 January 1969

30 October 1975

3 January 1976

10 March 1976

23 March 1976

13 August 1980

3 September 1981

27 August 1983

26 June 1987

7 September 1989

2 September 1990 1 July 2002

16 January 1991 1 July 2002

1 July 2003

Not ratified

Source: Department of Foreign Affairs and Trade, www.info.dfat.gov.au/Info/Treaties/ Treaties.nsf/WebView4?OpenForm

instance, although Australia has ratified them, parliament has declined to enact legislation on the following treaties: the Convention on the Rights of the Child, the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (see Table 2.1). Having ratified the International Covenant on Civil and Political Rights (ICCPR) in 1980 and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1976, parliament has long had the ability (relying on its external affairs powers), but not the political will, to implement a legislative bill of rights.

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Why does the parliament create legislation to bring some treaties into effect and not others? In explaining why the parliament does not introduce legislation, it has been suggested that it often thinks it unnecessary because Australian law already complies with the treaty obligations (Charlesworth et al. 2006, 29; Otto 2001, 219). By ratifying but not enacting a treaty, Australia demonstrates its support internationally for the espoused principles, while indicating that it sees the treaty provisions as reflecting the existing practice of domestic law and policy (of course commentators outside the parliament may take an entirely different view of Australia’s compliance). Pragmatism helps to explain why the parliament does enact some treaties. Lacking constitutional authority in certain policy areas, the Commonwealth has used its external affairs power to ratify treaties and subsequently enact legislation in areas that encroach upon the traditional domain of the states. Through this process, the federal parliament has been able to broaden its legislative scope in directions that would not otherwise have been possible. As legal academic Wendy Lacey has noted, the ‘broadly defined external affairs powers’ can be invoked at the government’s discretion, and ‘whenever there exists a strong political motivation for doing so’ (2001, 240). The inconsistency with which the parliament has dealt with international treaties has contributed additional layers of confusion and tension to the already complex system of Australian rights protection. This became most apparent in 1995 with the High Court’s ruling in the Teoh case. The case related to the deportation of a Malaysian national, Mr Teoh, after he was charged on drug-related offences. Mr Teoh had a wife and dependent children in Australia and his defence argued that, in considering his deportation, authorities should have considered Australia’s obligation to give weight to the best interests of the children under the Convention on the Rights of the Child (CROC). The CROC is one of a number of conventions that has been ratified by the executive but not enacted into statute law; as a result, the government argued that CROC had no effect in this case. In its ruling the High Court rejected the government’s reasoning. It held that where the legislature or the executive had not given an indication to the contrary, Australia’s ratification of a treaty (but not necessarily its enactment) would give rise to a legitimate expectation that a decision maker will act in conformity with the provisions of that treaty (Patapan 2000, 62; Charlesworth 2002, 58–9). The joint judgement by Justice Deane and Chief Justice Mason noted that a human rights treaty was not to be regarded as ‘a merely platitudinous

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or ineffectual act’ but operated as ‘a positive statement by the executive government . . . to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention’ (in Lacey 2001, 223). The Teoh decision gave international treaties a higher status in Australian law than had previously been recognised. And, as with other High Court interventions in the human rights area, it provoked a strong negative response from politicians. Gareth Evans, the ALP attorney-general at the time, argued that it had upset the balance between the arms of government away from the parliament and towards the judiciary (in Patapan 2000, 62). The Keating ALP government, followed by the incoming Howard government, made executive statements registering their objections to the decision and attempted, unsuccessfully, to pass legislation to override Teoh (Lacey 2001, 221). Again, it can be argued that the criticism levelled by politicians at the High Court was misplaced: because of its capacity to make laws based on international treaties, the parliament had had ample opportunity to legislate to enact the CROC or a more general bill of rights that would have given the Court some guidance in this matter. The implementation of human rights treaties into domestic law is one element of the international treaty enforcement regime. Another is the role played by international bodies, specifically, UN treaty monitoring committees, which oversee the actions of states in relation to their treaty obligations. Regardless of whether the parliament enacts a treaty into law, the executive is accountable to these committees for its obligations; however, as sovereignty remains the dominant norm in international relations, these committees, and the UN system as a whole, have very limited power at their disposal to call governments to account. Despite some suggestions to the contrary, the UN cannot tell a state what to do, nor can it interfere directly in domestic decision-making processes. Rather, its main tool is that of naming states that have not upheld their obligations and attempting to shame them into improving their human rights standards. If a state is able to withstand this shaming, then the system will have little effect. In the UN human rights system, each treaty has a monitoring committee with similar – though not identical – functions. Some of these committees have the ability to investigate human rights abuses by state parties; others, including the ICCPR and CEDAW, have optional protocols attached, which, if ratified by the state party, allow individuals from that state to make

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complaints against it for the infringement of their rights under the treaty. Every committee receives periodic reports (every two to five years) from ratifying states. In these reports states are expected to detail their actions in giving effect to the rights in the convention. The committees meet to consider these reports and to hear an oral submission from the state under review. Increasingly, the committees will also engage non-government organisations (NGOs) in an unofficial capacity in this process. The involvement of NGOs is aimed at overcoming the problems of the unwillingness of governments to be self-critical and any corresponding attempts to mask contentious or difficult areas (O’Neil 2004, 155–6). At the end of each hearing the committee will produce concluding comments or concluding observations in which it details support for and concerns about the state in question. These comments are vital to the international human rights treaty process as they provide one of the few avenues with which to sanction government action through naming and shaming. During the period of the Howard Coalition government, Australia’s relationship with the UN treaty committee system became strained. In the years 1998–2001, three committees – the Committee on the Elimination of Racial Discrimination, the Committee Against Torture and the Human Rights Committee (which oversees the ICCPR) – took a hard line against Australia’s performance in a number of areas, including Aboriginal rights and the mandatory detention of asylum seekers (see Charlesworth 2006; Haller 2001). At the same time, UN human rights investigators visited Australia and returned critical reports in each of these areas. This UN intervention raised the ire of many members of the government, especially the prime minister, the foreign minister, the attorney-general and the minister for immigration and multicultural affairs. In 2000 these ministers issued a joint press release that attacked the legitimacy of the committees and stated that, until the UN treaty system was completely overhauled, Australia would adopt a ‘selective and economical’ approach in its reporting, agreeing to UN monitoring only where there was a ‘compelling reason to do so’ (in Heller 2001, 937; Evatt 2001). The government based its criticisms on three main arguments: first, that the UN committee system does not work and needs complete reform, second, that the issues for which Australia was criticised were ‘minor’ and that the focus should be on ‘major’ rights abusers in non-democratic countries (Haller 2001, 2; Hovell 2003; Otto 2001, 219), and third, that the UN’s criticism equated to a breach

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of Australian sovereignty. In defending the government’s position Prime Minister John Howard affirmed the ‘determination’ of ‘this government to ensure that matters affecting Australia are resolved by Australians within Australia’ (Heller 2001, 939; see also Hovell 2003). The stance of the Howard government sits in stark contrast to the position taken by the previous Keating ALP government in relation to the UN treaty system. When, for example, Nick Toonen argued in 1994 that the Tasmanian law that criminalised homosexuality interfered with his right to privacy, the Human Rights Committee (HRC) (which oversees the ICCPR), upheld his complaint. The federal (Keating) government responded to the HRC finding by introducing legislation – the Human Rights (Sexual Conduct) Act 1994 – which overrode the Tasmanian legislation (Hovell 2003, 298; see also chapter 6). This was a case in which the UN’s naming and shaming approach was effective. The precedent set by Toonen encouraged other Australians to seek to have their rights recognised through the HRC’s individual complaints naming and shaming procedure. But because the government had changed, their efforts proved to be a dismal failure. By 2006, the HRC had ruled in 11 cases that Australia has violated human rights in areas such as the mistreatment of children, inhumane treatment of prisoners, denial of family life and undue trial delay (Charlesworth et al. 2006, 85; NSWCCL 2008). In each case, the Howard government rejected the findings on the basis that the HRC is not a court and its findings are not binding. In the view of the HRC, the reluctance to address its criticisms was a denial of Australia’s international obligations (Charlesworth et al. 2006, 85). Critics of the Howard government’s human rights stance did find a point of agreement with the government – which is that the UN committee process is in need of reform. This position is shared by a number of commentators, including Hilary Charlesworth (2002, 62) and Frank Brennan (2007, 131). The real points of disagreement were, first, that by rejecting UN commentary on Australia out of hand, the government had placed Australia outside the UN system, and second, that government claims that the mandatory detention of asylum seekers and the appalling conditions of Indigenous Australians were minor rights violations failed to recognise the seriousness of these violations. Detractors also pointed out that arguments about Australian sovereignty were employed politically and cynically. In their view they were ‘used to distract attention from some of the more fundamental issues involved in the balance between human rights and government

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policy’ (Charlesworth et al. 2006, 99). Moreover, as Charlesworth et al. argue (2006), the Australian government presented a contradictory position on the question of sovereignty; it was always invoked when the UN criticised Australia’s human rights record, but was barely mentioned in relation to issues of free trade, even though both issues present an equal challenge to this principle. The return of an ALP government to federal office in 2007 has seen somewhat of a reversal in Australia’s position on the UN. The government has described itself as ‘coming in from the cold’ (Attorney-General 2008a) and ‘re-engaging with UN processes, too long neglected by the previous government’ (Smith and McClelland 2008). In its first few months in office the Rudd Labor government made a commitment to signing on to the optional protocol to the Convention Against Torture (which would allow visits from the UN Torture Committee to Australian prisons and detention centres) as well as the optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women (providing for individual complaints to the CEDAW committee). In June 2008 the attorney-general also announced Australia’s intention to ratify the new Convention on the Rights of Persons with Disabilities (Attorney-General 2008b). The real test of the Rudd government’s support of the UN will be seen in its reaction to any future criticism of its human rights record. Aside from the impact of the treaty system, the role of international law in shaping the common law has also been a trigger for debate in Australian politics. Once again the 1992 Mabo judgement was significant here as it broke new ground in recognising the importance of international human rights standards in understanding rights in the Australian context. As Justice Brennan argued in his Mabo ruling: The common law does not necessarily conform to international law, but international law is a legitimate and important influence on the development of common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. (In O’Neil et al. 2004, 113)

Native title has not been the only issue on which High Court decisions have been informed by international law. Cases concerning the right

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to legal representation as well as refugee, child and homosexual rights have also demonstrated that ‘international law is a legitimate and important influence on how they [High Court judges] interpret legislation and extend the common law to deal with new circumstances’ (O’Neil 2004, 114). The increased use of international law to interpret Australian law has been controversial. Former High Court Justice Ian Callinan is one critic. I do believe . . . in a guarded and sceptical approach to the importation of standards and rules imposed by outsiders having the capacity to interfere with the constitution and sovereignty of this country and each of its constitutional polities, the states. (2005, 17)

Senior politicians have also criticised the High Court’s use of international standards in its reasoning on rights, largely because they see it as providing a way for the courts to act ‘in excess of their power’ (Ruddock, in Charlesworth et al. 2006, 91). The idea that in invoking international law the High Court is attempting to introduce a bill of rights ‘through the back door’ also has currency, especially with some conservative commentators (Albrechtsen, 2007). Arguably, these critiques are overstated. High Court justices have exercised caution in bringing international law to bear on their decisions (Williams 2002, 21; Doyle and Wells 1999, 52). A number of justices, including Mason, McHugh, Toohey and Deane, as well as Justice Kirby – who is the strongest proponent in recent times of the need to take account of international law – are all careful to point out that international standards can only guide their decision making where there is ‘a gap in the common law or obscurity in its meaning or ambiguity in a relevant statute’ (Kirby 1999, 4). In no instance has a judge put the case that international human rights standards can or should override the explicit intention of parliament, even where its intention is to disregard Australia’s international human rights obligations. This is a significant constraint on the willingness of judges to expand rights protections. If politicians are so concerned about the importation of international rights by the judiciary and judges overstepping their role, they have the ability to introduce a statutory bill of rights that clearly indicates and limits those human rights that exist under Australian law. That they have chosen not to

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is a puzzle to many. As Justices Mason and McHugh have commented, ‘It is curious that the Executive Government has seen fit to expose Australia to the potential censure of the Human Rights Committee without endeavouring to ensure that rights enshrined in the ICCPR are incorporated into domestic law’ (in Patapan 2000, 49). By leaving open this gap between ratification and enforcement of international treaties, politicians are also leaving open the possibility for the courts to intervene to give them effect. If these treaties are more than mere window dressing then it is unreasonable to criticise the efforts of the High Court to interpret the law with regard to international human rights standards so long as it adopts a cautious approach in doing so. While the critics of the High Court may have overstated their case, there is no doubt that the growing influence of international law on the Court is a significant turning point. To return to Patapan’s argument noted above, the influence of international law has the potential to change the basis on which human rights in Australia are understood (2000, 42). The traditional view, which clearly many legislators still uphold, saw rights as stemming from political institutions. In contrast, by turning its attention to the international human rights arena, the court is opening up the possibility of shifting the foundation of human rights in Australia towards the notion of human dignity, the concept in which most international rights are embedded. Australian politicians must take this shift seriously and consider what steps they will take towards adopting a contemporary view of rights and the consequent new arrangements for their protection.

The role of non-government organisations One other set of actors who play an important role in shaping the human rights agenda in Australia are non-government organisations (NGOs). These organisations work at the national level with, and sometimes against, political institutions to advocate for the protection of human rights. Some also work internationally, especially in UN forums, to put pressure on the Australian government to make changes to its human rights policies and to join in international campaigns to encourage the protection of human rights in other parts of the world.

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There are too many human rights NGOs in operation in Australia to mention them all individually, but it is possible to categorise them in ways that will help to gain a sense of their scope. One way to do this is by the nature of their activities. Many human rights NGOs are service-based organisations, created to provide social assistance such as housing, health and education to those whose rights are, or are in danger of, being abused, either in Australia or overseas. Many of these organisations are connected to religious institutions such as Wesley Mission or World Vision, while others, such as the Asylum Seekers’ Centre of New South Wales and the Fred Hollows Foundation, are community-based. A second type of NGO, and of most interest to those studying the political aspects of human rights, are those organisations established to undertake advocacy activities. Some of these advocacy NGOs, for example the civil liberties councils in each of the states and the Refugee Council of Australia, are Australia-based. Others exist as the national arm of an international organisation such as Amnesty International (AI) and the International Committee of the Red Cross (ICRC). Many of these organisations are also community based, while others are linked to religious organisations, such as Uniya, the Jesuit social justice organisation based in Sydney, or the Brotherhood of St Laurence in Melbourne. The focus of advocacy organisations varies quite markedly. Over the past decade many organisations have been established to work to lobby government on specific issues such as refugees and asylum seekers (for example A Just Australia), or Indigenous issues (for example Reconciliation Australia). Other organisations, AI or the ICRC, for instance, address multiple human rights issues as they emerge in Australia and overseas. While many NGOs are enduring (such as the Women’s Electoral Lobby [WEL], which has existed since 1972 to draw government attention to women’s issues), some are transient because they emerge to address a particular concern and dissolve once the organisation’s goal has been achieved (the group that lobbied for David Hicks’ release from Guantanamo Bay Prison was one such group). Alongside these organisations are individual human rights advocates who work independently of, though sometimes lending their support to, NGOs and who use their knowledge, position and skills to speak out on rights issues. Some of the most prominent among these in recent years include journalist David Marr, Indigenous academic Marcia Langton, gay rights advocate Rodney Croome, barrister Julian Burnside and, perhaps

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most notably in recent years, former Liberal Prime Minister Malcolm Fraser. The work of these advocacy organisations and individuals is varied and in part depends on the opportunities afforded by political institutions to allow them to express their concerns. In theory, in order for government to maintain its democratic legitimacy it seeks to demonstrate that it is responding to the community when undertaking its policy-making and legislative activities. As part of this process, it is expected that government will provide avenues for NGOs to express their views. Submissions to parliamentary committees or the ability to respond to detailed government proposals is one such avenue. Government may also create regular forums through which organisations can meet with ministers and senior bureaucrats and put forward their concerns and ideas for addressing human rights concerns. In Australia in recent years, the ability of NGOs to make their voices heard through these formal channels in the area of human rights has been compromised in a number of respects. As Sarah Maddison and Clive Hamilton (2007) point out in their book Silencing Dissent, under the Howard government, certain NGOs, especially those who disagreed with the government on major issues, including the treatment of asylum seekers and refugees, Indigenous policy and women’s issues found it hard to have their voices heard in policy debates. Difficulties arose as a result of the withdrawal or threat of withdrawal of government funding for some organisations in preference for others that were more closely aligned with government policy, as well as the closure of access points for NGOs to communicate their views to ministers (Hamilton and Maddison 2007, 2). A good example of the latter occurred in 2005 during the introduction of counterterrorism legislation. Although the bill had significant negative implications for civil liberties, the government claimed it was urgent and pushed it through both houses of parliament in a matter of days leaving no time for input from human rights organisations and legal experts (see Lynch 2006, 749–50). Whether the Rudd government’s rhetoric on re-opening avenues for dissenting voices will be met in practice is yet to be seen. The legislative and policy arenas are not the only ones through which human rights advocates work to influence the public agenda. In some countries, such as the USA and Canada, the courts are a popular channel for addressing rights issues. In these countries, and others with bills of

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rights, it is common for advocates to bring amicus curiae 1 statements before the court that point out the broader rights implications of the case at hand. Although this does occur in Australia from time to time, with some specialist legal organisations such as the Public Interest Advocacy Centre (PIAC) having some success in being heard before the courts in areas of disability, women’s rights and free speech (PIAC 2008), judges in Australia have tended to be reticent to allow such statements to be introduced. For this reason, rights groups have looked towards the media as an alternative avenue for naming and shaming government into action. Increasingly, domestically based NGOs have also become proficient at using the international arena to advance their cause. As noted earlier, the UN reporting process has become more open to the views of NGOs. Australian groups have taken advantage of this opportunity and have developed ‘shadow reports’ for presentation at the committees that address the rights of children, women, race and refugees. Many of their comments and criticisms have been incorporated into the committees’ reports, a demonstration of the efficacy of this strategy of engagement. In recent times the number of NGOs in Australia has grown and they are now a permanent feature of the Australian human rights landscape. These groups provide an important function in protecting human rights in terms of filling gaps in government service provision as well as in speaking out for those unable to do so for themselves. However, the ability of these groups to carry out their activities is to a large extent dependent on political institutions to support their activities through financial assistance and points of access. When government retreats from the provision of these forms of support, the risk is that human rights NGOs become marginalised in the policy process and rights themselves have less prominence on the political agenda.

Conclusion This assessment has identified many gaps in the existing system for protecting human rights in Australia. The weaknesses of the current system are the result of problems within each institutional arena as well as with the interaction between them. The Constitution offers very few rights provisions

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while ‘[t]he Australian judiciary has neither the text nor the temperament to compensate for the constitutional silence about rights’ (Charlesworth 2002, 40). The common law plays a limited role in protecting rights and is overridden by statute law, which can extend but equally limit rights. Meanwhile, the most democratic branch of government, the parliament, has been primarily concerned with addressing majority rights at the expense of those of the minority, especially in the electorally unpopular area of Indigenous rights. As Campbell has stated, ‘Australia can, therefore, be said to have the worst of both worlds, with the High Court unable to fulfil its promise and the Parliament cagey about venturing into human rights legislation’ (2001, 189). More recent efforts to enforce international human rights laws and norms in the Australian context have been highly controversial. Although Australian governments have been keen to enhance their international reputation by ratifying human rights treaties, the parliament has not always followed suit in that it has demonstrated a reluctance to enact them in legislation. Where the legislature has made laws based on these treaties, it has flexed its sovereignty muscle and not included all their provisions. The unwillingness of Australian governments to respond to international or domestic naming and shaming from NGOs demonstrates the weakness in international rights enforcement mechanisms more generally, as well as the strength of sovereignty as the overriding norm in international relations. The gaps in the Australian rights protection regime have left the judiciary in a precarious position. While it has been cautious in applying human rights standards, it has nevertheless been seen as overstepping its role as the maker, rather than the interpreter, of law. While politicians complain about the intrusion of the High Court into their realm, the responsibility really lies with the legislative branch to fill in the missing pieces of the rights framework and to provide the judiciary with some guidance as to how to interpret rights issues. Yet many of those politicians who object to recent rights decisions of the High Court are the same people who have rejected moves to formulate a bill of rights. The next chapter takes up the issue of why there has been such reluctance to create a home grown bill of rights that has the potential to resolve the problems of uneven rights enforcement, judicial overreach and the perception of international incursion into Australian sovereignty.

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Goot, Murray and Tim Rowse, 2007. Divided Nation? Indigenous Affairs and the Imagined Public. Melbourne: Melbourne University Publishing. Haller, Rochelle L., 2001. ‘Australia’s Cold-Shoulder: Setting a Dangerous Precedent for Human Rights Violators.’ New York Law School Journal of Human Rights, 17: 937–41. Hamilton, Clive and Sarah Maddison, 2007. ‘Dissent in Australia’ In Silencing Dissent: How the Australian Government is Controlling Public Opinion and Stifling Debate, eds Clive Hamilton and Sarah Maddison. Sydney: Allen & Unwin. Hill, Lisa, 2002. ‘On the Reasonableness of Compelling Citizens to Vote: The Australian Case.’ Political Studies, 50(1): 80–101. —— 2004. ‘Compulsory Voting in Australia: A Basis for a “Best Practice” Regime’, Federal Law Review, 32(3): 479–97. Hill, Lisa and Jonathon Louth, 2005. ‘Compulsory Voting in Australia: Turnout With and Without It.’ Australian Review of Public Affairs, 6(1): 25–37. Horrigan, Bryan, 2006. ‘Improving Legislative Scrutiny of Proposed Laws to Enhance basic Rights, Parliamentary Democracy, and the Quality of Law Making.’ In Protecting Rights Without a Bill of Rights, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Aldershot: Ashgate. Hovell, Devika, 2003. ‘The Sovereignty Stratagem: Australia’s response to UN human rights treaty bodies.’ Alternative Law Review, 28(6): 297–301. Human Rights and Equal Opportunity Commission (HREOC), 2007. Social Justice Report. Accessed online at www.hreoc.gov.au/social justice/sj report/ sjreport07/index.html, 26 August 2008. —— 2008. Reports to the Minister under the HREOCA. Accessed online at www.hreoc.gov.au/legal/HREOCA reports/index.html, 15 May 2008. Kildea, Paul and Katharine Gelber, 2007. ‘High Court Review 2006: Australian Federalism-Implications of the WorkChoices Decision.’ Australian Journal of Political Science, 42(4): 649–64. Kinley, David, 1998. Human Rights in Australian Law: Principles, practice and potential. Sydney: Federation Press. Kirby, Michael, 1999. ‘Domestic Implementation of Human Rights Norms.’ Australian Journal of Human Rights, 27: 1–13. Lacey, Wendy, 2001. ‘In the Wake of Teoh: Finding an Appropriate Government Response.’ Federal Law Review, 29(3): 219 –40. Lynch, Andrew, 2006. ‘Legislating with Urgency – The Enactment of the Anti-Terrorism Act [No. 1] 2005’. Melbourne University Law Review, 31: 747–81. Maddox, Graham, 1996. Australian Democracy in Theory and Practice. 3rd edn. Melbourne: Longman. Malbon, Justin, 2002. ‘Avoiding the Hindmarsh Island Bridge Disaster: Interpreting the race power.’ Flinders Journal of Law Reform, 6(1): 44–60. Mason, Anthony, The Honourable Justice, 1998. ‘The Role of the Judiciary in Developing Human Rights Law in Australia.’ In Human Rights In Australian Law, ed. David Kinley. Sydney: Federation Press. Meagher, Roderick, The Honourable Justice, 1999. ‘Civil Rights and Other Impediments to Democracy.’ Eleventh Conference of the Samuel Griffith Society. Melbourne, 9–11 July.

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New South Wales Council for Civil Liberties, 2008. Does Australia violate Human Rights?. Accessed online at www.nswccl.org.au/issues/hr violations.php, 2 June 2008. Omar, Imtiaz, 1995. ‘Darkness On The Edge Of Town: The High Court and Human Rights in the Brandy Case.’ Australian Journal of Human Rights, 8: 115–26. O’Neil, Nick, Simon Rice and Roger Douglas, 2004. Retreat from Injustice: Human Rights Law in Australia. 2nd edn. Sydney: Federation Press. Orr, Graeme, Bryan Mercurio and George Williams, 2002. ‘Australian Electoral Law: A Stocktake.’ Election Law Journal, 2(3): 383–402. Otto, Diane, 2001. ‘From reluctance to exceptionalism: The Australian Approach to Domestic Implementation of Human Rights.’ Alternative Law Review, 26(5): 219–22. Patapan, Haig, 2000. Judging Democracy: The New Politics of the High Court of Australia. Cambridge: Cambridge University Press. —— 2003. ‘High Court Review 2002: The Least Dangerous Branch.’ Australian Journal of Political Science, 38(2): 299–311. Public Interest Advocacy Centre, 2008. ‘Landmark Cases.’ Accessed online at www.piac. asn.au/litigation/landmark.html, 20 October. Saunders, Cheryl, 2002. ‘Protecting Rights in Common Law Constitutional Systems: A framework for a comparative study.’ Victoria University Wellington Law Review, 33: 83–112. Sidoti, Chris and Meredith Wilke, 2000. ‘Human Rights in Australia: The Role and Perspective of the Human Rights and Equal Opportunity Commission.’ In The Politics of Australian Society: Political Issues for the New Century, eds Paul Boreham, Paul, Geoffrey Stokes, Richard Hall. Melbourne: Longman. Smith, Stephen, The Honourable and Robert McClelland, The Honourable, 2008. ‘Reengagement with United Nations on Torture.’ Media release. Office of the AttorneyGeneral for Australia. Accessed online at www.attorneygeneral.gov.au/www/ ministers/robertmc.nsf/Page/RWPCA237434E060DDDACA25744C00231F0A, 6 June 2008. Solomon, David, 1999. The Political High Court: How the High Court Shapes Politics. Sydney: Allen & Unwin. —— 1995. ‘What’s Wrong With the High Court Playing a Significant Political Role.’ In The Australian Political System, eds David W. Lovell, Ian McAllister, William Mayley and Chandran Kukathas. Melbourne: Longman. ‘Status of Ratifications of the Principal International Human Rights Treaties,’ 2004. Office of the United Nations High Commissioner for Human Rights. Accessed online at www.unhchr.ch/html/menu3/b/a ccpr.htm, 18 June 2008. Tucker, D. F. B., 1997. ‘Natural Law or Common Law?: Human Rights in Australia.’ In Rethinking Human Rights, eds Brian Galligan and Charles Sampford. Sydney: Federation Press. Uhr, John, 2006. ‘The Performance of Australian Legislatures in Protecting Rights.’ In Protecting Rights Without a Bill of Rights, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Aldershot: Ashgate. Williams, George, 2002. Human Rights Under the Australian Constitution. Melbourne: Oxford University Press.

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Winterton, George, 2006. ‘An Australian Rights Council.’ In Protecting Rights Without a Bill of Rights, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Aldershot: Ashgate.

Cases Al-Kateb v Godwin [2004] HCA 37. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. Dietrich v R (1992) 177 CLR 292. Kruger v Commonwealth (1997) 190 CLR 1. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Levy v Victoria (1997) 189 CLR 579. Mabo v Queensland (No. 2) [1992] HCA 23. McGinty v Western Australia (1996) 186 CLR 140. Minister for Immigration v Teoh [1995] HCA 20. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. Re Woolleys [2004] HCA 49. Wik Peoples v Queensland [1996] HCA 40.

Chapter Three

A BILL OF RIGHTS?

Australia is the only Western democracy without a bill of rights. Whereas similar countries such as the USA, Canada, the Netherlands, France, Italy, the United Kingdom and New Zealand have each enacted either a constitutionally entrenched or statutory bill of rights, Australia has remained steadfastly opposed to developing a bill of rights. Some commentators fear that, without one, Australian human rights will suffer because our system will be out of step with more advanced rights jurisprudence in those countries that do have a bill of rights (see Brennan 2007). However, being out of step with practice elsewhere is not, in itself, a reason for change; it needs to be determined whether Australia needs such an instrument (see Campbell 2006, 325; Allan 2003, 176). Currently, rights are not adequately protected in Australia; while certain majority rights are quite well protected through parliamentary mechanisms, minority rights are vulnerable. The consequences of this pattern for certain Australians, including many women, homosexuals, refugees and prisoners have been detrimental, and for Aboriginal Australians, they have been nothing short of devastating. But despite having found the Australian rights framework wanting, we still need to consider whether a bill of rights is the answer to the problem. Bills of rights in and of themselves do not provide better government services or guarantee equality of outcomes but if taken seriously and carried into law and practice in the settings where they operate, they demonstrably make rights more secure. In addition, bills of rights have the potential to embed

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within the parliament and the population at large a robust rights culture. They also delineate a clear role for the judiciary in adjudicating rights questions, something that is currently lacking in Australia. Such changes would make it more difficult to ignore the rights of the most vulnerable – and often least popular – members of society. This chapter begins by defining the character and the aims of bills of rights. It then assesses the competing arguments of detractors and supporters of a bill of rights in the Australian context and outlines the failed attempts to introduce a national bill of rights. Consideration is given to the strength of the arguments for a legislative or statutory bill of rights for Australia, a model the authors support because of its ability to strike an appropriate balance between the powers of the legislative and judicial branches of government. The introduction of legislative rights instruments in the Australian Capital Territory and Victoria, as well as other rights reform proposals, are also considered in light of the history and arguments for and against a bill of rights. In Australia, the debate around the adoption of a bill of rights has, until fairly recently, been based on the assumption that it is an entrenched, constitutional bill of rights, specifically, a version of the US model that is on offer. This has skewed the debate in important ways. In this section the main arguments made by opponents of a bill of rights is outlined. It will be shown that these arguments are more nuanced than advocates for change will generally admit. The main arguments in favour of a bill of rights, and the reasons for the growing emphasis on the adoption of a statutory or legislative bill of rights, are considered. Finally, the key virtues of a legislative rights model are outlined and how such a model overcomes many of the concerns of bill of rights sceptics is demonstrated.

Defining a bill of rights Bills of rights seek to provide the protection of rights, most notably, civil and political rights, by curtailing the ability of the state to infringe these rights. The most common purpose of a bill of rights is, as Canadian political scientist Janet Hiebert notes, to ‘establis[h] constraints on what the state can do when using its coercive powers in a manner that adversely affects individual freedom’ (2005, 236). But, as already noted in chapter 1, rights

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violations can also be perpetrated by private actors, be they corporate or individual. By setting the limits of state action and regulating private action, bills of rights provide citizens with a shield with which to protect themselves against state intrusion into civil and political liberties. They also operate as a sword, providing those who suffer rights infringements with the means to secure justice. It is important to recognise that most bills of rights do not provide a comprehensive answer to all outstanding human rights needs, especially economic and social rights, which usually require more direct positive state action (although it is noted that civil and political rights not only require the state to refrain from acting, but also to undertake positive action, such as passing legislation, funding legal aid programs and so on). There are advocates of the inclusion in rights charters of these second generation rights (see Darrow and Alston 1999, 504–5; Williams 2007, 89–90), and some states have attempted to do this. Finland is one such country, as is South Africa, where the bill of rights provides provisions for access to housing, education and healthcare (Charlesworth 2002, 68; South Africa 2008). In preparations for both bills of rights in operation in Australia (in the Australian Capital Territory and Victoria) there was some discussion among proponents and politicians about the inclusion of second-generation rights. After consideration, they were rejected because of the heavy burden they placed on government to remedy social and economic disadvantage (see Charlesworth 2006; Williams 2006). This outcome is common. We find that in most democracies, architects of bills of rights generally steer away from committing governments to delivery of economic and social rights. As a result, it can be argued that most bills of rights generally entrench a liberal ideological perspective rather than a more progressive, distributive one (Darrow and Alston 1999, 503). Various terms are used to describe the many models of bills of rights (‘bills’, ‘charters’, ‘human rights Acts’, for example) but they are essentially the same thing. Human rights lawyer Philip Alston has grappled with the problem of how best to define a bill of rights. In his survey of definitional approaches, he dismisses some for being too country specific (particularly in their focus on America), and others for being too minimalist in that they fail to mention the full range of fundamental rights that are to be included or the means for protecting these rights. For Alston, any effective bill of rights must have three characteristics

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1 a concern with protecting a range of specific rights 2 provision for an effective remedy of rights infringements 3 resilience to arbitrary change. In his view [A] bill of rights is a formal commitment to the protection of those human rights which are considered, at that moment in history, to be of particular importance. It is, in principle, binding upon the government and can be overridden, if at all, only with significant difficulty. Some form of redress is provided in the event that violations occur. (1999, 10)

This definition provides a clear standard for identifying authentic bills of rights, be they constitutionally entrenched or legislatively based; such a definition is methodologically useful for comparing the nature and operation of these instruments across different institutional settings. For many Australians, the idea of a bill of rights evokes thoughts of an American-style charter, something that tends to distort arguments about the advisability of adopting a bill of rights for Australia. In fact, the most commonly known model – the US Bill of Rights – is in many respects unique; it is constitutionally entrenched, which means that the amendments to the US Constitution that comprise the Bill of Rights form part of a document that is the highest law of the land. The Bill is intentionally very difficult to change. Most of the amendments were added to the Constitution in 1791, with subsequent rights added after the American Civil War to incorporate former slaves, and in the early 20th century to allow women to vote. But aside from these changes, it can be argued that the US Bill of Rights is frozen in time. As a consequence, it now includes what many see as obsolete rights, such as the right to bear arms (Second Amendment), and is able to withstand pressure for the creation of new rights. This was made apparent in the 20th century with the unsuccessful campaign of women’s rights activists to add an equal rights amendment. Because the Bill is constitutionally entrenched the US Supreme Court is the final adjudicator of rights, leaving the US legislative branch, the Congress, with a much less powerful role in the process than it would have were a statutory model in place. However, the US Constitution provides other means by which the Congress may curb the authority of the Court through a formal system of checks and balances

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between the legislature, the judiciary and the executive that are not available in Westminster-style democracies such as Australia’s (Duncan and Goddard 2005, 97–8). Other democratic countries with constitutionally entrenched bills of rights include Finland, France, Germany, Italy and South Africa. Canada’s Charter of Rights is entrenched in the Constitution while also including a ‘notwithstanding’ clause that allows the parliament to amend some particular rights (see below). Statutory or legislative bills of rights are an alternative to constitutionally entrenched models. Sometimes referred to as charters of rights, or human rights Acts, these rights instruments are Acts of the legislature, much like any other Acts of parliament, although they are sometimes given a higher status than ordinary legislation. These bills are ‘enacted by ordinary legislative processes that articulate rights and subject governmental action to some form of judicial review’ (Webber 2006, 264). This type of rights instrument provides the parliament with the capacity to amend (or, indeed, abolish) the legislation as it sees fit. It is thus more flexible than a constitutionally entrenched bill of rights, but also, as a result, less secure. Examples of statutory rights regimes exist in the United Kingdom (Human Rights Act 1998) and New Zealand (Bill of Rights Act 1990). Legislative instruments protect against what Hiebert (2005) terms ‘judicial hegemony’ in rights interpretation, by continuing to place some responsibility and control over rights with parliament. In both the UK and New Zealand examples, the legislature plays a significant role in protecting rights. In New Zealand, when a new bill is introduced, the relevant minister must draw to the attention of parliament any provision that ‘appears to be inconsistent’ with the Bill of Rights Act, whereas in the UK ministers must make a ‘statement of compatibility’ with the Human Rights Act. In both cases, the government can decide to continue with the legislation even where it breaches human rights standards; nevertheless, these acts ensure that ‘rights standards will be taken into account during policy formation’ (Saunders 2002, 94). As for the courts, they are expected to interpret legislation in a way that complies with the rights covered under the legislative bills of rights (Saunders 2002, 93). In Canada, the Charter has constitutional status, but the parliament, at both the federal and provincial levels, retains the power to declare legislation valid ‘notwithstanding’ all but a few fundamental Charter rights for a period of five years (Saunders 2002, 95).

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The bill of rights debate in Australia Before outlining the arguments for and against an Australian bill of rights, it is important to understand that at the heart of the conflict is not a debate about how much human rights matter, since it is apparent that both sides take rights seriously. What is up for debate is how best to protect these rights, a debate that turns on a point of difference about the nature of democracy. Those opposed to a bill of rights tend to adopt a utilitarian position that emphasises the need to respect the will of the majority. This perspective has dominated Australian political culture, resulting in a system in which political institutions have been created and shaped to achieve the greatest good for the greatest number. By contrast, those who favour the adoption of a bill of rights emphasise the importance of respecting minority interests, and are wary of the extent to which majority rule can become a tyranny for those who are not part of the majority. Opposition to an Australian bill of rights Opponents of an Australian bill of rights do not speak with one voice. The view they all share though is that a bill of rights is unsuitable for Australia because it shifts decision making on important and contentious issues away from the most democratic branch of government – the legislature – towards the least democratic branch – the judiciary. As legal scholar James Allan suggests, ‘bills of rights are overwhelmingly about delivering from elected politicians to unelected judges power to decide highly contestable, debatable, social policy issues’(2002, 566). Critics agree that rights issues are essentially political and moral problems, especially those concerning equality dilemmas over who gets what, that are not easily resolved through litigation. In the view of detractors, judges are ill-trained for making decisions in these areas and the nature of the issues involved means that they are best resolved through the deliberative processes of the representative arm of government (see Craven 2004, 173; Campbell 2006, 326–7). New South Wales ALP Attorney-General John Hatzistergos summed up this opposition in 2008 when he stated: Bills of Rights, I believe, blur the distinction of transfer power from the elected representatives to the judiciary, and it [sic] involves complex issues, difficult

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political issues which the legislature is equipped to be able to determine, but the judiciary is not. (Law Report 2008)

While sharing a concern about the shift in power towards the courts at the expense of the legislature, critics of an Australian bill of rights differ on other important issues and can be divided into two schools of thought. The first takes the view that Australia has, by world standards, a good human rights record, which is evidence that the existing institutional arrangements continue to work well in protecting rights. These opponents can be thought of as the ‘If it ain’t broke, don’t fix it’ school. The other concedes that Australia’s human rights record is less than perfect but disagrees that a bill of rights – especially a constitutionally entrenched model – is an appropriate mechanism for addressing the inadequacies in Australia’s existing rights protection framework. Rather, their answer lies in strengthening the capacity of existing institutions to protect rights. These commentators take the view that ‘It is broke but don’t fix it with a bill of rights’. Perhaps not surprisingly, it has been politicians, mostly from the conservative side of politics but also some Labor MPs, who have tended towards the first school of thought (see Galligan and McAllister 1997). Former Liberal Prime Minster Robert Menzies articulated this view in 1967 when he stated without ‘hesitation, that the rights of individuals in Australia are as adequately protected as they are in any country in the world’ and that Australia’s system of democratic responsible government is ‘the ultimate guarantee of justice and individual rights’ (Menzies, in Galligan and Morton 2006, 27). Menzies’ opinion has echoed down the years. In 2002, former Attorney-General Daryl Williams gave a speech entitled ‘Against Constitutional Cringe’, in which he argued that ‘[w]hile not perfect, Australia has an excellent human rights record’ that is the ‘result of a constitutional, democratic and legal framework which has served us exceptionally well for more than a century’. He went on to identify the pitfalls of a bill of rights, including the expectation that ‘responsibility for determining complex competing policy questions would be shifted away from the Executive and the Parliament to the judiciary’ (Williams 2002). Philip Ruddock, who followed Williams as attorney-general, shared his anti-bill of rights views. On numerous occasions Ruddock defended Australia’s existing rights framework (see for instance, AAP 2005; Ruddock 2007), and argued that a bill of rights

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would ‘transfer real power from democratically elected parliaments to an unelected judiciary’ (Ruddock, in King 2007, 6). Bob Carr, former ALP premier of New South Wales can be seen to fall into the second camp of bill of rights opponents. He does not defend the view that Australians’ rights are currently well protected, but he does share with his conservative colleagues a concern about the way bills of rights ‘shunt[s] decision making from the Parliament to the courts’, leading to a situation in which ‘[m]ore policies than before end up being resolved by litigation’ (Carr 2007, 11). For Carr, the concern does not seem to be with courts’ increasing involvement in policy making per se, but that when they do get involved, they will produce conservative policy decisions. From his perspective ‘a charter of rights can easily be rendered a conservative instrument, restricting the agenda of a reformist government’ (Carr 2007, 11). Certain feminist scholars are also uneasy about the conservatism and about the white, Anglo, male homogeneity of the judiciary, suggesting that to increase the power of judges through a bill of rights will do little to advance women’s equality (see Irving 1996). Legal academics Tom Campbell (2006) and Adrienne Stone (2006) are also ranked among the second school of thought. Both make the point that not everyone who opposes a bill of rights is either complacent about Australia’s human rights record or satisfied with current constitutional arrangements. Nevertheless, Campbell does not think that increasing the power of judges – which he believes will inevitably happen should a constitutionally entrenched bill of rights be adopted – is the way to achieve better rights protection (2006, 320); quite the opposite: ‘Human rights are diminished when we seek to cure democratic deficiencies through antidemocratic devices’ (Campbell 2006, 320). According to these critics, the solution to rights infringement does not lie in a bill of rights that would be ‘participation-sapping’ (Allan 2003, 176) but in other measures that would strengthen majoritarian democratic institutions, such as expanding the functions and power of parliamentary committees. Criticism of an Australian bill of rights also extends beyond the parameters of these two schools of thought. Constitutional lawyer George Winterton identifies other common complaints against a constitutional bill of rights, including ‘the difficulty in amending’ it, which ‘could eventually lead to inflexibility in public policy, possible obsolescence of rights, judicial imperialism, and “politicization” of the judicial appointment process’

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(2006, 305–6). Some opponents also suggest that Australia’s exceptionalism in regard to a bill of rights is a good thing and argue strongly in favour of the status quo. Recently, Galligan and Morton have suggested that existing rights protections in Australia have operated such that they have already allowed for a ‘rights revolution’ and that these existing measures promote ‘political vigour and democratic legitimacy’ (2006, 19). Allan also takes up this point about Australian exceptionalism and makes a ‘plea for Australia to stand outside the worldwide trend, to forswear any sort of bill of rights. Were that route to be travelled, there would be no going back. The status quo is worth prizing now, not left until it is lacked and lost and too late’ (2003, 194). Critics of bills of rights also often claim that it will lead to a flood of litigation. This argument is most relevant in the US case where the entrenched bill of rights gives courts the final word on rights violations and encourages victims of these violations to look to courts for resolution. Yet statutory bills of rights do not seem to produce the same effect, especially when they do not provide a basis for individuals to pursue a case through the court or an entitlement to damages, which is the case, for example, with the human rights legislation introduced in Victoria (see Williams, 2007; Hulls, in Law Report 2008). Even in the UK, where the Human Rights Act (HRA) does provide a cause of action and an entitlement to damages, figures suggest that human rights issues have not polluted the courts. A 2006 review by the UK Department of Constitutional Affairs into the first five years of the operation of the HRA found that only 2 per cent of all appellate cases were classified as human rights cases (DCA 2006, 10). In the same time period, the House of Lords, the highest court in the UK, has considered the Act in approximately one-third of cases of the 354 cases that the House decided in this period. According to the report the Act ‘could be said to have substantially affected the result in about one-tenth of those cases’ (DCA 2006, 10). Most of these cases were dealing with new legal principles arising from the Act; it is expected that the volume of cases before the Lords will decrease as the jurisprudence relating to the HRA becomes more established (see Walker 2007). Support for an Australian bill of rights Advocates of an Australian bill of rights take the view that the rights framework is broken and needs to be fixed and there has been some debate within

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this community about the appropriate model to adopt in order to achieve the best rights outcomes. Over the years, there have been supporters of a constitutionally entrenched bill of rights, and more commonly in recent debates, those who argue in favour of a legislative or statutory model of rights protection. Aside from the debates about what is the best instrument, there is little disagreement between these advocates about the reasons why further rights protection is needed. Proponents share the view that the majoritarian system of government on which the Australian political system is based has failed minorities (arguably, it has also failed a significant numerical majority group, women). Charlesworth encapsulates this position when she states that Politicians have little interest in making decisions that may upset the majority by protecting possibly unpopular minority group rights. In this sense, political majorities can often tacitly connive in the oppression of minority groups. (2002, 72)

Frank Brennan agrees, arguing that The ballot box is a good means for protecting the rights and enhancing the life prospects of the majority . . . The members of entrenched and unpopular minorities often find little consolation at the ballot box. In a democracy, it is only the rule of law which can guarantee the protection of the fundamental rights and liberties of all, including the minority or the person who the majority would prefer to marginalise. (2007, 123)

As we have seen in chapter 1, efforts to entrench rights in the Australian Constitution began with the constitutional conventions in the late 19th century. Delegate Andrew Inglis Clark, a US enthusiast, argued for the inclusion of rights in the areas of trial by jury, the rights and privileges of state citizenship, equal protection under the law and religious rights (Charlesworth 2002, 20). Some of these rights survived in the final document in a much watered down version from those Inglis Clark had proposed (see chapter 2). Over the course of the 20th century, there were attempts to entrench other rights in the Constitution, but meeting the constitutional change threshold of a double majority of states and voters has been almost impossible. During the Second World War a constitutional convention was held that proposed

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that the Commonwealth be given powers over freedom of speech and expression, religious freedom, freedom from want and freedom from fear. In the event, only the first two were put to a referendum and both were defeated by a majority of voters and a majority of states (Williams 2007, 57). The 1967 referendum to remove from the Constitution discriminatory references to Aborigines was the most successful in Australian history. While the change did not establish new rights, it was a significant symbolic moment that saw the removal of racial discrimination from the Constitution. The most recent effort occurred in 1988 when a Constitutional commission established by the Hawke government recommended the inclusion of a new chapter on rights and freedoms in the Constitution, to be based on the newly codified Canadian Charter. The government was not willing to embrace this bold recommendation but instead put forward a referendum to extend existing guarantees on religious freedom, just compensation for property acquired by the state and trial by jury. The referendum suffered the worst defeat of any referendum in Australian history (Galligan 1994, 55). While some anti-bill of rights commentators have taken this as evidence of Australians’ aversion to a bill of rights (Allan 2003, 180), proponents suggest otherwise. In their view, the referendum did not accurately reflect the will of the people. Moreover, they charge that the referendum was poorly handled, weakly debated and rushed to ballot to coincide with Australia’s bicentennial year (Brennan 1998, 27–8; Williams 2007, 62). Whatever the case, the failure of the 1988 referendum again indicated the difficulty in enacting a constitutionally entrenched bill of rights in the Australian political context, and since then no serious attempt has been made to pursue this route for improved rights protection. Instead, bill of rights activists have pushed for the adoption of a legislative model of rights protection. Some advocates support this model by default, recognising that this is a more politically viable alternative. Others campaign for this model because they see it as superior to a constitutional one because it strikes a better balance between the judicial and legislative arms of government. Indeed, as supporters of a legislative model point out, many of the arguments against a bill of rights, especially the central concern about the shift of power towards unelected judges, are more applicable to a US-style bill and are much less convincing when applied to this type of rights instrument (Webber 2006).

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There have been three failed attempts at the federal level to introduce a statutory bill of rights, each when the ALP was in office. The first and most far-reaching proposal was advanced in 1973 by Lionel Murphy, attorneygeneral in the Whitlam government. The Murphy bill was ambitious as it included rights that could be enforced against government and the private sector (Williams 2007, 59). This latter provision prompted strong opposition and contributed to the bill lapsing in parliament. During the period of the Hawke government’s incumbency, Attorneys-General Gareth Evans and Lionel Bowen attempted to gain support for a bill of rights based on the kind of rights contained in the ICCPR, with Bowen’s version establishing a Human Rights Commission in place of the courts to oversee the legislation. The Evans bill did not make it to parliament, Bowen’s version did. In November 1985, the Bowen bill passed the House of Representatives, but was withdrawn in 1986 in the face of Senate and community opposition1 (Brennan 1999, 26). For the federal government to be able to create these bills, it needed to draw on the Commonwealth foreign affairs power found in section 51 of the Constitution and link them to an international treaty ratified by Australia. In each case, the bills were based on the International Covenant on Civil and Political Rights. Had these bills passed through parliament they would have had national scope due to section 109 of the Constitution that provides that, in the case of any inconsistency, Commonwealth legislation overrides state legislation. More recent efforts to promote a federal legislative bill of rights have come from outside parliament. Advocates include prominent legal academics George Williams and Hilary Charlesworth, who have been directly involved in the creation of Australia’s first such bills in Victoria and the Australian Capital Territory respectively. Other supporters of this model have found a voice through New Matilda, an independent online magazine and policy portal, that was relaunched in 2008 as the ‘Human Rights Act for Australia’ campaign (humanrightsact.com.au). Led by former ALP Senator Susan Ryan, the campaigners have devised a draft law based on the UK Human Rights Act. The issue of creating a statutory bill of rights was again given prominence in April 2008 at the Rudd government’s 2020 Summit by such delegates as George Williams and Julian Burnside. The proposal that came out of the ‘Future of Australian Governance’ stream called for the creation of a national charter of rights for Australia along the lines of what has been

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adopted in Victoria (for the Summit proposal, see Australia 2020 Summit, chapter 9). Supporters of a legislative bill of rights advance a number of arguments to support their model. Given the strength of the critiques of bills of rights, two are particularly important to draw out: first, that the legislative model enhances parliament’s role in establishing a rights framework, and second, that the judiciary would play a restricted – though important – role in settling rights disputes. On the first point, it can be argued that legislative rights instruments have the capacity to create or reinvigorate a rights culture within the parliament as it forces legislators to assess all bills at the time of drafting and enactment for their rights implications. Or, to put it more simply, it asks politicians to wear rights-tinted glasses when undertaking their legislative duties. Under such a model, rights are injected into the very heart of the work of the parliament (Webber 2006, 266; Williams 2007, 88, 93). A legislative model preserves the ‘ultimate power of Parliament to decide the nature of our laws, but provides considerable moral pressure on the legislature to act consistently with human rights standards’ (Charlesworth 2002, 73–4). As in the UK example, the parliament can choose to set aside rights but ‘before rights are infringed, all legislators must be put on notice, so that any decision to infringe can be consciously made’ (Webber 2006, 282). Hiebert sums up the advantages: The benefit of a [legislative] bill of rights . . . is not that it guarantees rights but that it imposes obligations and pressures on those in power to reflect upon the implications of their decisions for fundamental rights, to conceive of alternative and less restrictive ways to accomplish important social objectives and, where rights are adversely affected, to explain and justify the merits of legislative decisions. (2005, 243)

A statutory model gives the judiciary an important role in rights adjudications but does not give them final control; instead, they are required to interpret legislation in a manner consistent with the rights set out in the bill (Webber 2006, 267). Therefore the judiciary would be given much greater legislative guidance on how to read rights than is currently the case while parliament would retain the ability to revisit any rights issue and to respond through legislation to the judgement, including retaining

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the ability to override judicial decisions. As legal scholar Jeremy Webber suggests, ‘The legislature can learn from rights adjudication. It may be compelled to confront circumstances that it had previously overlooked or would prefer to overlook. But in the last analysis it sets the rules’ (2006, 275). While promoters of a legislative model of rights do emphasise the role of parliament, the courts are not left out of the picture. Many favour this model because they see value in both the legislature and judiciary having an input into rights disputes. Indeed, some have suggested that the roles set out for both institutions under a legislative bill of rights enhances ‘greater inter-branch respect’ (Saunders 2002, 96) and enables them to operate through ‘dialogue’, rather than a blunt ‘clash of wills’ (see Hiebert 1999). Under statutory bills of rights, each institution adds something different and unique to the understanding and protection of rights. Obviously, the parliament brings a reflection of majority opinion and is focused on the development of general rules and norms to govern society. By contrast, the judiciary, because it is unencumbered by electoral concerns, is arguably better able to look out for minority interests (Charlesworth 2002). Further, as Webber points out, the nature of judicial decision-making is very different to that of the legislature, focussing on the specific details of a case and applying general norms to particular circumstances (Webber 2006, 276). Through this process individual people and their circumstances are given their due (Webber 2006, 276). In addition to these strengths, courts armed with a bill of rights are better able to act as an additional check on executive power. This is important given the executive dominance of the legislature (especially when it has control over both houses of parliament) and the willingness of parliament to delegate authority to ministers in areas such as immigration and refugee policy, where human rights breaches are common (see chapter 7). A legislative bill of rights is also favoured for cultural reasons, especially its purported educative value. In Williams’ view, the most important contribution a charter of rights can make is not the benefit it brings to the small number of people who succeed in invoking rights in court. It is how it can be used to educate, shape attitudes and bring hope and recognition to people who are otherwise powerless. (2007, 91)

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Saunders agrees, arguing that The rights instruments and the debate associated with their operation in practice, including debate on the meaning of democracy itself, have a potential educative effect for the community as a whole, and thus, may contribute to the development of civil society. (2002, 95)

Research suggests that such education is sorely needed in Australia. A 1994 survey undertaken by the Civics Expert Group found that Australians at that time did not have a deep knowledge of rights issues. When asked how informed people felt about the rights and responsibilities of Australian citizens, 27 per cent said they felt moderately informed, 33 per cent felt a ‘little bit’ informed, and 28 per cent said they had only a vague idea (Gelber 2005). Although a more recent and more detailed survey published in Australian Social Attitudes indicates that rights ideals have some resonance with the Australian public (in Gelber 2005), there is nothing to indicate that community knowledge of the system of rights protection has improved over time.

Alternatives to a national bill of rights Suggestions for the protection of human rights in Australia have not only focused on a defence of the status quo or a call for a national bill of rights. In recent years we have seen two subnational governments, the Australian Capital Territory and Victoria, go it alone and create their own bills of rights. Parallel to these developments, others have argued for a strengthening of existing institutions, especially parliamentary ones, to provide better protection of rights. These developments are briefly surveyed before consideration is given to the likelihood of Australia adopting a national bill of rights in the near future. As noted in the preceding chapter, Brian Galligan has argued that federalism has been long overlooked as a key aspect of Australia’s human rights framework. In his view, the division of powers between federal, state and territory governments creates ‘dual political communities’ and keeps a check on the centralisation of power, which can operate against the protection of rights (1995, 1994). In recent years, though, it appears that some positive aspects of Australian federalism have been at work. With the adoption in the

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Australian Capital Territory and Victoria of bills of rights, it can be argued that federalism has encouraged both diversity and experimentation in the field of human rights. The ACT Human Rights Act 2004 (HRA) came into effect on 1 July 2004 after extensive community consultation. The HRA incorporates most of the rights contained in the ICCPR and expands on them to prohibit discrimination based on sexual orientation and disability (Debeljak 2004, 169). It is weaker than other models in that it does not provide an explicit remedy for a breach of rights (Charlesworth 2006, 292); however, it does seek to strike a balance between the three arms of government and enhance dialogue between each of them (Debeljak 2004, 172–3). It does this by placing an obligation on the Australian Capital Territory Supreme Court to determine whether legislation is consistent ‘as far as possible with human rights’ and to issue a declaration of incompatibility where legislation is interpreted as being inconsistent with human rights. At the same time, the Court cannot invalidate any law. If the Court finds a point of incompatibility, the onus is on the attorney-general to report to the Legislative Assembly the government’s response (Debeljak 2004; Charlesworth, 2006, 293). The parliament can then decide whether to amend the legislation. The Victorian Charter of Human Rights and Responsibilities Act 2006 came into full operation on 1 January 2008. It is a preventative model in that it seeks to ensure that in drafting laws, parliament is alert to rights issues (Williams 2006, 893). Again, the rights covered by the Charter are based on the ICCPR, though with important modifications made in response to feedback from community consultation. These modifications include limits on the protection of the right to life (to uphold existing laws on abortion) and on the right to self-determination (to guard against opening up the possibility of Indigenous self-government) (Williams 2006, 897). As with the Australian Capital Territory model, the Victorian Charter seeks to develop a dialogue between the arms of government, with the courts only able to make a ‘declaration of inconsistent interpretation’ rather than having the ability to strike down incompatible laws. Parliament retains the ultimate authority to override the Charter (see Williams 2006). Defending the Charter, the Victorian attorney-general has argued: Our Charter is profoundly democratic, it doesn’t give judges the power to overturn laws. If a law is identified as being inconsistent with the Charter, then

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it’s sent back to parliament for review, and parliament can decide whether or not to revise the law or parliament may well determine that it’s in the public interest to limit certain rights and leave the law unchanged. So parliament has the ultimate say, not judges. (Rob Hulls, in Law Report 2008)

These developments at the state and territory level are important because of the added protection they provide to the citizens in these jurisdictions. As Williams notes, ‘[t]he enactment of the ACT Human Rights Act and the Victorian Charter of Rights challenges the view that Australia has a strong record of protecting human rights which does not need improvement through better legal protection for such rights’ (2006, 882). From a federalist perspective, these Acts also provide the opportunity for Australians to experiment with different rights models and for citizens and governments to learn about ‘what a bill of rights entails, the gains it may offer, and any potential pitfalls it may have’ (Gelber 2005, 8). Alternative institutional mechanisms for advancing human rights have also been considered by those who are either committed to a national bill of rights but are looking for temporary stop-gap measures or those who fear a bill of rights would lead to ‘judicial creep’ and a reduction of ‘democratic’ – that is, majoritarian – control over rights, whatever the chosen instrument (see Allan 2003; Campbell 2006, 331). A common recommendation to come from both sides of the divide is to strengthen state and national parliamentary scrutiny of legislation for its human rights implications (see Horrigan 2006; Evans and Evans 2007). Some of the suggestions include reinforcing existing committees to provide them with the necessary resources – and most crucially the time – to undertake a thorough review of legislation and the authority to give effect to their decisions (Campbell 2006, 334; Evans and Evans 2007, 30). At the same time as supporting these measures, Winterton has proposed the creation of a quasijudicial Australian Rights Council. Such a council, modelled on the French Conseil Constitutionnel, would examine legislation prior to enactment to assess its compatibility against some rights standard, either a domestic bill of rights or some international measure, such as the ICCPR. Its decisions, with recommended amendments, would be reported back to parliament. These decisions would be non-binding, due to constitutional constraints;

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nevertheless . . . a negative report by an Australian Rights Council . . . would be politically difficult to ignore. Its reports would clearly have greater weight than those of a committee of parliamentarians, even if assisted by external expert advice. (Winterton 2006, 314)

These ideas, and the push to develop a national legislative bill of rights, have been given additional relevance with the election in November 2007 of the Rudd Labor government. As is evident given the views of former New South Wales Premier Carr and current New South Wales ALP AttorneyGeneral John Hatzistergos, complete consensus on rights measures does not exist across all levels of the Labor Party. Nevertheless, of the two major parties, the ALP has been the one most willing to embrace suggestions for a federal legislative bill of rights; further, it was Labor governments who presided over the introduction of bills of rights in the Australian Capital Territory and Victoria (on the issues of rights and the ALP, see Patapan 1997; Galligan 1995). Moreover, when in opposition during the years of Coalition government, the ALP indicated its support for a national bill of rights. In 2002, as Opposition attorney-general, Robert McClelland argued in support of a bill of rights, in part because ‘[a] Bill or Charter of Rights . . . would be an effective bulwark against decisions taken by Parliament in haste or for reasons of political expediency’ (McClelland 2002). Since taking up the position of attorney-general in the first Rudd ministry, McClelland has put his mind to rights issues. On 10 December 2008 he created a Human Rights Consultation Committee to undertake a nine month community consultation process to consider three key questions: Which human rights should be protected and promoted? Are these human rights currently sufficiently protected and promoted? How could Australia better protect and promote human rights? The committee’s terms of reference also make it clear that any recommendations ‘should preserve the sovereignty of the Parliament and not include a constitutionally entrenched bill of rights’ (Human Rights Consultation Committee 2008). At least rhetorically, the attorney-general has been careful not to pre-empt the findings of the consultation, stressing that the committee should consider the advantages and disadvantages of all the options for protecting rights and not only consider a bill of rights (McClelland 2008). In a further attempt to achieve some balance in the process, McClelland appointed Jesuit lawyer Father Frank Brennan, a selfdescribed ‘fence-sitter’ on the issue of a charter of rights, as the chair of

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the consultation committee (Banham 2008). The announcement prompted a flurry of pro and anti-bill of rights commentary in the media along the lines outlined earlier in this chapter (see Carr 2008b). Given the strength of opposition, there is certainly no guarantee that this latest round of ‘rights talk’ will result in changes to the status quo. When comparing the adoption and implementation of bills of rights across different jurisdictions, it is clear that their success depends heavily upon a committed policy entrepreneur, usually in the form of the chief political leader. Such a role was played by Tony Blair in the UK, Pierre Trudeau in Canada, John Stanhope in the Australian Capital Territory, and Rob Hulls and Steve Bracks in Victoria. In the Australian case, political leadership on a bill of rights is important for countering opposition, and equally important for overcoming inertia bred by complacency about the effectiveness of existing rights measures. Unless Prime Minister Rudd gets firmly behind it, and there is some support, or at least not outright opposition, from the Coalition parties, a bill of rights proposal is likely to founder.

Conclusion In light of our analysis of the weaknesses of the existing framework for rights protection in Australia, there are many reasons to support a proposal for a legislative bill of rights. Such an instrument could provide a greater coverage of civil and political rights for those minorities and for women, who are currently disadvantaged by existing arrangements. The first way it could do this is through engendering greater concern for rights in parliament. Although it would not prevent the parliament from setting aside rights legislation (such as it has done in relation to the Northern Territory intervention, for instance), it would force legislators to justify their reasons for doing so, and generally encourage parliamentarians to pay greater attention to rights issues when formulating and enacting legislation. We can also see some clear advantages that such a reform would have for the judiciary. With a legislative bill of rights there would be much less reason for the High Court to become mired in controversies over its attempts to find implied rights in the Constitution or to import international rights through its judgements. Under such a bill, the Court would have clear guidelines (set by parliament) within which to work. Judges would have the ability to

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use their skills in applying general law to specific cases of possible rights infringement – skills that politicians are not expected (or claim) to possess – and provide guidance to the parliament about the effect of legislation on the enjoyment of rights. An additional advantage of such a model is that the Court would be made more effective in checking executive action in the area of rights. This is especially important when the government has control over both houses of parliament since it is at these times that there is greatest risk of rights infringements (as was evident during the last term of the Howard–Coalition government). Such an instrument would not provide the means to address all forms of disadvantage experienced by minority and marginalised groups in Australia, especially disadvantage that arises from economic and social deprivation. Rather, in defending a statutory model of rights protection we would agree with Evans and Evans when they assert that The struggle to achieve human rights is not won with the passage of a human rights act. Ultimately the success of a human rights act depends on parliamentarians and governments taking rights seriously as a constraint on government action; on governments providing the resources that are necessary for timely and effective scrutiny; and on parliaments resisting the instinct to defer to the courts as the sole authoritative interpreters of human rights. In other words, the success of these Acts depends on their human rights values becoming part of political culture. (2007, 35)

References Allan, James, 2002. ‘Oh That I Were Made Judge in the Land.’ Federal Law Review, 30(3): 561–76. —— 2003. ‘A Defence of the Status Quo.’ In Protecting Human Rights: Instruments and institutions, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Oxford: Oxford University Press. Alston, Philip, 1999. ‘A Framework for the Comparative Analysis of Bills of Rights.’ In Promoting Human Rights Through Bills of Rights: Comparative Perspective, ed. Philip Alston. Oxford: Oxford University Press. Attorney-General, 2008a. ‘Human Rights and Equal Opportunity Commission Australia and International Human Rights: Coming in from the Cold.’ Ministerial Speech. Accessed online at www.attorneygeneral.gov.au/www/ministers/robertmc.nsf/ Page/Speeches 2008 HumanRightsandEqualOpportunityCommission, 6 June 2008.

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Australia 2020 Summit, 2002. Chapter 9, ‘The Future of Australian Governance.’ Final Report. Accessed online at www.australia2020.gov.au/final report/index.cfm, 22 June 2008. Australian Associated Press, 2005. ‘Labor Supports Call for National Human Rights Bill.’ 5 October. Accessed online at www.encyclopedia.com/doc/1P1–113845243.html, 17 June 2008. Banham, Cynthia, 2008. ‘ “Fence-sitter” heads Charter Team.’ Sydney Morning Herald. 10 December. Accessed online at www.smh.com.au/news/national/ fencesitter-heads-charter-team/2008/12/09/1228584839248.html, 10 February 2009. Brennan, Frank, 1999. Legislating Liberty: A Bill of Rights for Australia?. St Lucia: University of Queensland Press. —— 2007. Acting on Conscience: How can we responsibly mix law, religion and politics?. St Lucia: University of Queensland Press. Campbell, Tom, 2006. ‘Human Rights Strategies: An Australian Alternative.’ In Protecting Rights Without a Bill of Rights, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Aldershot: Ashgate. Carr, Bob, 2007. ‘Democracy thrives in a free press and politics, not in the judiciary.’ Sydney Morning Herald, 30 April. —— 2008a. ‘Human Rights Charter is Doomed: Carr.’ Australian. 10 December. Accessed online at www.theaustralian.news.com.au/story/0,25197,24780185601,00.html, 7 February 2009. —— 2008b. ‘A Human Rights Act for Australia.’ Accessed online at www.humanrightsact.com.au/2008/, 7 February 2009. Charlesworth, Hilary, 2002. Writing in Rights: Australia and the Protection of Human Rights. Sydney: UNSW Press. —— 2006. ‘Australia’s First Bill of Rights: The Australian Capital Territory’s Human Rights Act.’ In Protecting Rights Without a Bill of Rights, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Aldershot: Ashgate. Craven, Greg, 2004. Conversations With the Constitution: Not just a piece of paper. Sydney: UNSW Press. Darrow, Mac and Philip Alston, 1999. ‘Bills of Rights in Comparative Perspective.’ In Promoting Human Rights Through Bills of Rights: Comparative Perspectives, ed. Philip Alston. Oxford: Oxford University Press. Debeljak, Julie, 2004. ‘The Human Rights Act 2004 (ACT): A Significant, Yet Incomplete, Step Toward the Domestic Protection and Promotion of Human Rights.’ Public Law Review, 15: 169–76. Department of Constitutional Affairs, Justice Rights and Democracy, 2006. Review of the Implementation of the Human Rights Act. Accessed online at www.justice.gov.uk/docs/full review.pdf, 15 July 2008. Duncan, Russell and Joseph Goddard, 2005. Contemporary America. Houndsmills: Palgrave. Evans, Simon and Carolyn Evans, 2007. ‘Australian Parliaments and the Protection of Human Rights.’ Papers on Parliament, No. 47, July. Canberra: Department of the Senate. Galligan, Brian, 1994. ‘Australia’s Political Culture and Institutional Design.’ In Towards and Australian Bill of Rights, ed. Philip Alston. Canberra: Centre for International and Public Law, Australian National University.

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—— 1995. ‘Parliamentary Responsible Government and the Protection of Rights.’ In The Australian Political System, eds David W. Lovell, Ian McAllister, William Mayley and Chandran Kukathas. Melbourne: Longman. Galligan, Brian and Ian McAllister. 1997. ‘Citizen and Elite Attitudes Towards an Australian Bill of Rights.’ In Rethinking Human Rights, eds Brian Galligan and Charles Sampford. Sydney: Federation Press. Galligan, Brian and F. L. (Ted) Morton. 2006. ‘Australian Exceptionalism: Rights Protection Without a Bill of Rights.’ In Protecting Rights Without a Bill of Rights, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Aldershot: Ashgate. Gelber, Katharine, 2005. ‘Beyond Australia’s First Bill of Rights: Engendering public debate.’ Democratic Audit of Australia. Accessed online at http://arts.anu.edu.au/ democraticaudit/categories/rightsfrm.htm, June 2008. Hiebert, Janet L., 1999. ‘Why Must a Bill of Rights be a Contest of Political and Judicial Wills? The Canadian Alternative.’ Public Law Review, 10(1): 22–36. ——2005. ‘Interpreting a Bill of Rights: The importance of legislative rights review.’ British Journal of Political Science, 35: 235–55. Horrigan, Bryan, 2006. ‘Improving Legislative Scrutiny of Proposed Laws to Enhance Basic Rights, Parliamentary Democracy, and the Quality of Law Making’. In Protecting Rights Without a Bill of Rights, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Aldershot: Ashgate. Human Rights Consultation Committee, 2008. Terms of Reference. Accessed online at www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/ TermsofReference TermsofReference, 7 February 2009. Irving, Helen, 1996. ‘The Republic is a Feminist Issue.’ Feminist Review, 52(1): 87–101. Johansen, David and Philip Rosen, 2005.‘The Notwithstanding Clause of the Charter’, Law and Government Division, Library Department, Canadian Parliament. Accessed online at www.parl.gc.ca/information/library/prbpubs/bp194-e.htm, 15 July 2008. King, Rhianna, 2007. ‘Ruddock rejects rights charter.’ West Australian, 27 April. Law Report, 2008. ‘Charter of rights: Different views from north and south of the Murray.’ ABC Radio National, Transcript. Accessed online at www.abc.net.au/rn/lawreport/ stories/2008/2266908.htm, 27 June 2008. Manfredi, Christopher P., 2006. ‘The Unfulfilled Promise of Dialogic Constitutionalism: Judicial–Legislative Relationships under the Canadian Charter of Rights and Freedoms.’ In Protecting Rights Without a Bill of Rights, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Aldershot: Ashgate. McClelland, Robert, 2002. ‘How is a Bill of Rights Relevant Today?’ Bill of Rights Conference, 21 June. Accessed online at www.gtcentre.unsw.edu.au/publications/ papers/89.asp, 28 June 2008. —— 2008. A Message from the Attorney-General the Hon. Robert McClelland MP. Accessed online at www.humanrightsconsultation.gov.au./www/nhrcc/nhrcc. nsf/Page/Who AMessagefromtheAttorney-GeneraltheHonRobertMcClelland, 10 February 2009. Patapan, Haig, 1997. ‘Competing Visions of Liberalism: Theoretical Underpinnings of the Bill of Rights Debate in Australia.’ Melbourne University Law Review, 21: 497– 514. Ruddock, Philip, 2007. ‘Bills of rights do not protect freedoms.’ Sydney Morning Herald, 1 September.

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Saunders, Cheryl, 2002. ‘Protecting Rights in Common Law Constitutional Systems: A framework for a comparative study.’ Victoria University Wellington Law Review, 33: 83–112. South Africa Info, 2008. ‘The Constitution of South Africa.’ Accessed online at www.southafrica.info/about/democracy/constitution.htm, 19 June 2008. Stone, Adrienne, 2006. ‘Australia’s Constitutional Rights and the Problem of Interpretive Disagreement.’ In Protecting Rights Without a Bill of Rights, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Aldershot: Ashgate. Walker, Robert, 2007. ‘Problems of Human Rights Legislation: What difference can a human rights charter make? (United Kingdom, Australia).’ Australian Law Journal, 81 (12): 923–931. Webber, Jeremy, 2006. ‘A Modest (but Robust) Defence of Statutory Bills of Rights.’ In Protecting Rights Without a Bill of Rights, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Aldershot: Ashgate. Williams, Daryl, 2002. ‘Against Constitutional Cringe: The protection of human rights in Australia.’ Australian Conference on Bill of Rights, NSW Parliament House. Accessed online at www.gtcentre.unsw.edu.au/publications/papers/ docs/2002/89 DarylWilliams.pdf, 17 June 2008. Williams, George, 2006. ‘The Victorian Charter of Human Rights and Responsibilities: Origins and Scope.’ Melbourne University Law Review, 30: 880–905. —— 2007. A Charter of Rights for Australia. Sydney: UNSW Press. Winterton, George, 2006. ‘An Australian Rights Council.’ In Protecting Rights Without a Bill of Rights, eds Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. Aldershot: Ashgate.

Chapter Four

ELECTORAL RIGHTS IN AUSTRALIA

Democracy is based on – even defined by – the political participation of citizens. The possession of suffrage rights is the key indicator of citizenship and is virtually synonymous with the concept of citizenship; from it flows all the other rights and freedoms enjoyed by inhabitants of democratic orders. Universal suffrage and the principle of one vote, one value are the key mechanisms by which legitimacy is conferred upon democratic states, therefore the right to vote for democratic representation, without discrimination, is rightly seen as a fundamental civil liberty in all systems that purport to be democratic and legitimate. Political scientist Marian Sawer has described Australia as ‘the first nation created through the ballot box’, noting that ‘[m]uch of Australia’s early identity as a nation revolved around its democratic experiments and the belief that while it was a young nation, it was a relatively old democracy’. Australia emerged as a nation not by revolution, ‘but at the ballot box through an exhausting round of referenda’. Throughout our electoral history ‘idealists have been at work’ creating not only a generally fair and accessible electoral system but also ‘a profession of dedicated professionals in electoral administration, at arms length from politicians and parties’ who are now in a position to provide democratic assistance to other nations, particularly those in democratic transition (Sawer 2001, 1, 26; Maley 2001). Although Australia does not have a strong rights culture understood in the classical liberal sense, it has – perhaps unconsciously – compensated for

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this by its obsession with ‘electoral fairness’ (Galligan 1994, 59). The result is that Australia has a well-earned reputation as a leader in democratic practice: it was early to introduce universal suffrage (and therefore voting rights for women)1 and pioneered preferential voting (Reilly 2001, 78), mobile polling booths, Saturday voting (starting with South Australia in the 19th century) (Sawer 2001, passim) and the secret ballot. (Sawer 2003, 53–6). Further, it is the only English-speaking nation to use compulsory voting, thereby ensuring that Australia enjoys one of the highest and most socially even levels of turnout in the world.2 This makes it all the more curious that certain social groups remain excluded from the Australian franchise, some of whom can least afford to bear such exclusion and most of whom are citizens (for example, prisoners); in effect, the majority of exclusions impugn or breach the traditional link between citizenship and the right to vote. The right to vote is set out in the Universal Declaration on Human Rights (article 21).3 Further, Australia is a signatory to the International Covenant on Civil and Political Rights, article 25 of which states that every citizen ‘shall have the right and the opportunity’ without ‘distinctions’ and ‘unreasonable restrictions’ to (a) Take part in the conduct of public affairs, directly or through freely chosen representatives; (b) Vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) Have access, on general terms of equality, to public service in his country4

Although human rights law allows some restrictions on the right to vote, such restrictions must be reasonable (HREOC 2000). But not all restrictions on voting rights in Australia have been reasonable. Many achievements are to be found in the Australian voting system, but its majoritarian political system and heavy reliance on parliament in shaping its rights culture has led to some major gaps in the protection of rights and conditions that afford free and ready access to the ballot. This chapter explores not only formal and legal entitlements, but also indirect and effective exclusions to voting participation. In some cases it canvasses means by which electoral rights

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might be better protected or expanded. Though there is some treatment of laws operating in state and territory jurisdictions, the primary focus is on federal voting rights.

Suffrage rights in Australia As has been noted, Australia is a signatory to the ICCPR, article 25 of which guarantees the right of every citizen to vote without ‘unreasonable restrictions’, yet the Australian Constitution provides no explicit or definitive provision for this most fundamental of rights (notwithstanding the limited and ambiguous protections canvassed below). Two reasons have been advanced for this omission: the first is that, at the time the Constitution was being framed, proposals to define the franchise in the Constitution were objected to on the grounds that the smaller colonies, such as South Australia (which allowed women the right to vote) were perceived of as seeking to impose their will on the larger colonies. Second, the scarcity of guarantees of electoral rights (and individual rights in general) in the Constitution reflected a high level of acceptance of what Chief Justice Garfield Barwick once referred to as ‘the notion of the sovereignty of Parliament in the scheme of government’ (Gleeson CJ in Roach v Electoral Commissioner (2007), citing Barwick CJ in Mulholland v Australian Electoral Commission (2004)). As a result, any guarantees of the right to vote as are found in the Constitution have been rightly described as ‘obscure’ (Twomey 2000, 125). What does the Constitution actually protect? The Constitution is not entirely devoid of references to voting entitlements. Such limited voting protection as can be found in our nation’s map of power is said to take two forms: express and implied. Section 41 contains an express but limited form of protection in providing that

No adult person who has or acquires the right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

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Section 41 has been invoked in efforts to protect the voting rights of many excluded minorities (such as Asian and African immigrants, Aborigines and prisoners) but as law academic Anne Twomey has observed, this invocation ‘has largely been unsuccessful’ due to the High Court’s tendency to give section 41 a narrow interpretation (Twomey 2000, 125). In R v Pearson ex parte Sipka (1983), for example, section 41 was interpreted by the High Court as having only transitory effect ‘spanning the time federation was formed and the time the Commonwealth first used its power under section 30 of the Constitution to legislate on voting rights in Commonwealth elections’(Harris 2002, 37; see also Twomey 2000 and Brooks 1993). Curiously, the Courts, while narrowly interpreting section 41, have chosen to broadly interpret other sections of the Constitution, namely, sections 7 and 24. In these sections the Courts have occasionally found an implied Constitutional protection of a universal franchise since both require that the Commonwealth houses of parliament be ‘directly chosen by the people’ (Twomey 2000, 126). In McGinty v Western Australia (1996), ‘there are dicta to the effect that universal franchise is the sine qua non of representative democracy, and that it is implicit in the Constitution’ (Harris 2002, 37). In Attorney-General (Cth); ex rel McKinlay v Commonwealth (1975), the phrase ‘chosen by the people’ was deemed by Barwick CJ to guarantee ‘first, that the election of members would be direct and not indirect as, for example, through an electoral college and, secondly, that it shall be a popular election’ (1975, cited in Carney 2003, 17). At the same time, there have also been occasions when the High Court has been asked to find an implicit right to vote but has refused to do so (Hughes and Costar 2006, 80). Due to the uncertainty surrounding voting rights in the Constitution there have been two referenda attempts to clarify the situation and entrench the right to vote. In 1974 the Constitutional Alteration (Democratic Elections) Bill was passed by the House of Representatives and subsequently put to the Australian people. The amendments it contained were intended to entrench, not only the right to vote in both state and federal elections, but also the principle of one vote, one value. Yet the referendum failed, achieving only 47.2 per cent of the vote Australia-wide and failing in all states and territories except New South Wales.5 In 1988 the Constitution Alteration (Fair Elections) referendum was put to the people. It too contained a minimum guarantee of a right to vote and proposed to entrench the

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one vote, one value principle. It also failed in all states and across Australia.6 As a result, with few exceptions, voting and registration rights as they stand in Australia today are at the discretion of the Parliament. Therefore, without a Constitutionally entrenched protection of the franchise, the right to vote is technically quite precarious. It is worth noting that although the Constitution was framed with scant regard for a positive declaration of voting rights protection, the Commonwealth Franchise Act 1902 did prescribe a number of exclusions from the franchise.

Exclusions Australia’s birth as a nation came about through the ballot box and, relative to the standards of the time, was marked by a wider than usual franchise; nevertheless, there were some discriminatory aspects to the federation franchise. The Commonwealth Franchise Act 1902 specified that ‘aboriginal natives’ of ‘Asia Africa or the Islands of the Pacific, except New Zealand’ were not entitled to enrol to vote in Commonwealth elections, unless entitled to do so under section 41 of the Constitution.7 The franchise also excluded prison inmates and those with mental incapacity. Three political disqualifications were stipulated, affecting those either ‘attainted of treason’, ‘born in enemy territory’8 or who were ‘executive members of unlawful associations’ (defined as organisations that advocated or encouraged ‘the overthrow of the Constitution by revolution or sabotage . . . the overthrow of a particular government or organised government or the destruction of Commonwealth property’). The second of these exclusions was transitory but the first and last still persist today (Norberry 2003, 93–7). There was also talk at federation of excluding from the federal franchise inmates of public charitable institutions on the grounds that such citizens were already prohibited from voting in Victoria and New South Wales. The main impediment to this proposal was the realisation that, because South Australia permitted those receiving financial aid to vote, section 41 would prevent the disqualification from working uniformly throughout Australia (Norberry 2003, 90).9 Over time, some of these disqualifications were either relaxed or abandoned, most notably exclusions based on ethnicity. But some were retained and even strengthened.

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Aboriginal voters and the franchise It is commonly assumed that Aborigines and Torres Strait Islanders acquired the right to vote in the 1967 Constitutional Alteration referendum, but this is a misconception. Rather, the referendum empowered (but did not require) the Commonwealth to enact ‘special laws’ for members of ‘the Aboriginal race’ and stipulated that Aboriginal people should now be counted in official population statistics (Attwood et al. 1997).10 The history of the Aboriginal franchise has a different timeline. The Australian Constitution nowhere denies the citizenship or the right to vote of Aborigines; rather it was denied by a parliamentary Act (the Commonwealth Franchise Act 1902) in line with practice in Queensland and Western Australia. In 1902, South Australia, Victoria, New South Wales and Tasmania did not formally prohibit Indigenous peoples from voting in state elections since all adult male British subjects were entitled to the vote in those jurisdictions at that time. But few Aboriginal people actually participated in elections, partly because many were unaware of their rights and partly because of other exclusionary requirements, such as property qualifications and the condition that those in receipt of charitable aid were not entitled to vote (Brooks 1993, 212–13).11 Section 41 of the Constitution should have protected the federal voting rights of eligible Aborigines residing in these states but failed to do so because the solicitor-general decreed that this Constitutional safeguard was to be interpreted as applying only to individuals who had ‘acquired’ the franchise before the passage in 1902 of the Commonwealth Electoral Act (Attwood et al. 1997, 14). In other words, this narrow reading of section 41 restricted the right to vote in Commonwealth elections to those who were already on state electoral rolls in 1902 (Sanders 2001, 159; Stretton and Finnemore 1993.)12 Over time, those who were eligible either died or were removed from the state electoral rolls for other reasons, to the point where the numbers of Indigenous Australians with Commonwealth voting rights declined to almost nil (Sanders 2001, 159). During the Second World War there was some discussion about whether the franchise might be extended to Indigenous Australians who could pass a test set by the electoral registrar. Aborigines in the defence forces were enfranchised during the Second World War but this entitlement lasted

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only until six months after the war had ended (Chesterman and Galligan, 1997, 157). In 1949 the Chifley Labor government introduced the Commonwealth Electoral Bill 1949, which enacted voting rights to former and serving Indigenous members of the armed forces and affirmed the right (thought by some to have existed under section 41) of Aboriginal Australians entitled to vote at state elections (Norberry 2003, 85). More far-reaching reforms did not eventuate until the 1960s. In 1961 the ALP sought to enfranchise all hitherto excluded ‘aboriginal natives of . . . Asia, Africa, or the Islands of the Pacific’, but the bill was defeated pending the advice of a House of Representatives select committee on the advisability of such a reform. Later that year the Select Committee on Aboriginal Voting Rights published its unanimous finding that all Aboriginal and Islander peoples should gain the Commonwealth right to vote. The Commonwealth Electoral Act No. 31 was passed in 1962 with little debate; the Menzies’ Liberal–Country Party government described the exclusion as ‘objectionable and outmoded’ (Norberry 2003, 90). More controversial, perhaps, was the proviso that enrolment should be voluntary for Aborigines (once enrolled voting would thereafter become compulsory). The reasoning here was partly based on claims about the difficulties involved in enrolling nomadic people (the Opposition responded by pointing out that the ‘difficulties in aborigines voting are exactly the same as the difficulties attending all outback voting’ (quoted in Brooks 1993, 221). It was also suggested that Aboriginal people ‘have not perceived the relevance of parliamentary elections to their lives’.13 The select committee had recommended that, because New South Wales and Victorian Aborigines were not nomadic, enrolment should be compulsory in those states. But this proposal was rejected by both houses of parliament (Brooks 1993, 227). For many observers, voluntary enrolment symbolised that Aborigines had not yet achieved formal equality with non-Aboriginal Australians (see, for example, Sanders 2001, 160; Orr et al. 2003a, 390). It is likely that voluntary registration for Indigenous people was a significant obstacle to their participation in state, territory and federal elections since it is known to have inhibited turnout at NAC, NACC and ATSIC elections (Sanders 2001, 169). In any case, it wasn’t until 1983, when voting and registration was made compulsory for all Australian citizens, that formal equality was finally achieved (Norberry 2003, 86). With this amendment any reference to ‘Aboriginal natives’ was removed from Commonwealth electoral legislation

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and Aborigines thereby became the legal equals of other Australian voters (Sanders 2001, 160). It is worthy of note that formal equality in electoral terms has not translated into equal rates of electoral participation for Aboriginal citizens. Despite the considerable efforts of electoral offices, Indigenous Australians continue to vote in lower than average numbers. In South Australia, for example, the State Electoral Office estimates that as many as 50 per cent of the eligible Aboriginal population in some remote areas fail to either enrol or vote in first order (that is, state and federal) elections (Hill and Alport 2006). But even if Aboriginal people voted in the same proportion as non-Aboriginal citizens (about 95 per cent of voting age population) it would still be extremely difficult for their interests to be represented due to the fact that they comprise less than 3 per cent of the population.14 Outside of the Northern Territory Indigenous candidates and Indigenous parliamentarians are rare, due to the fact that ‘the Indigenous population was decimated and swamped by immigration’ and ‘Indigenous people find it hard to win pre-selection in a political culture based on the model of a parliamentarian who is a 35–60 year-old white male’ (Orr 2003, 37). One way of protecting the interests of this most vulnerable minority group is through the development of a separate electoral roll for Indigenous people and the institution of reserved seats in parliament. Any suggestion that this latter reform violates the equality principle can be met with the argument aptly put by election law academic Graeme Orr that ‘[s]o extreme has been the dispossession and silencing of Indigenous voices in Australia that a special case, from political equality, can be made for reserved seats’ (Orr 2003, 37).15 As political scientist John Chesterman has argued ‘[a] political system has legitimacy problems when the . . . most marginalised and disadvantaged minority group is unable to have a single representative in the federal Parliament’ (Chesterman 2006, 284). Further, Aborigines lost what representation they did have with the demise of the Aboriginal and Torres Strait Islander Commission in March 2005 (Pratt and Bennett 2005). The idea of reserved seats was considered in 2003 by the Queensland Legislative Assembly’s Legal, Constitutional and Administrative Review Committee but it ultimately rejected the idea on the grounds that during public consultation there was a high degree of opposition to the idea. It did, however, indicate that it was prepared to reconsider the idea if the political

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participation of Aboriginal people had not improved within the ensuing decade (Chesterman 2006, 272–3). Orr endorses reserved seats but admits there would be problems associated with it. One is the miniscule size of the Indigenous population, which means that few seats could be reserved. Second, because the Indigenous population is not monolithic ‘[i]t has no single geographical or political voice’. (Although Orr estimates that there have existed ‘at least seven’ Indigenous parties since the 1960s, none are registered today). Orr also expresses concern at the possibility that reserved seats could be captured ‘by the major parties, particularly the ALP’.16 Nevertheless, the idea is an attractive one, particularly to Aboriginal people (Alport and Hill, 2008). And, contrary to claims made in the past about the unconstitutionality of such a measure, Chesterman has argued that federal seats for Indigenous Australians could be reserved without having to change the Constitution (Chesterman 2006).

Prisoners Under the Commonwealth Franchise Act 1902 the right to vote was denied to anyone ‘attainted of treason, or who has been convicted and is under sentence or subject to be sentenced for any offence punishable . . . by imprisonment for one year or longer’. It wasn’t until 1983 that this disqualification provision was softened somewhat under the Commonwealth Electoral Legislation Amendment Act No. 144, whereby people under sentence for offences punishable by between one and five years imprisonment were no longer disqualified. The legislation also stipulated that those under sentence for an offence under the law of ‘any part of the King’s dominions’ outside Australia should no longer be disqualified (Brooks 1993, 228). But in 2004, under the Howard government, restrictions were tightened so that prisoners serving a sentence of three years or more were disqualified (Electoral and Referendum Amendment (Prisoner and Other Measures) Act). In 2006 restrictions were further tightened so that all prisoners ‘serving a sentence of imprisonment for an offence against the law of the Commonwealth or of a State or Territory’ were disentitled to vote in Senate and House of Representatives elections (Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act). This meant that the entitlement to vote of prisoners was even more restrictive than it was at the time of

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federation. The Act disenfranchised approximately 20 000 people and represented ‘a double disenfranchisement for the 5656 Indigenous people’ who lost their ATSIC vote in 2005 (Justice Action Australia 2007). This was not the first time that the Howard government had sought to disenfranchise all prisoners. It had also attempted a blanket prohibition in 2004 but settled on a three-year threshold provision as a compromise. In 1997 the Joint Standing Committee on Electoral Matters tabled a report in parliament recommending that all prisoners be deprived of their federal voting rights (JSCEM 1997). Accordingly, the Electoral and Referendum Amendment Bill No. 2 (1997) was later introduced into the Australian federal parliament by Senator Chris Ellison, the minister responsible for federal electoral arrangements. The bill failed but, as we have seen, the 2006 bill did not. In August 2007 there was an unexpected turn of events. In what some legal commentators described as a shock decision, the High Court struck down the federal government’s 2006 blanket ban on prisoner voting. The successful challenge to the legislation was mounted by a prisoner, Vickie Lee Roach, an Aboriginal woman imprisoned at the Dame Phyllis Frost Prison in Melbourne (Pantesco, 2007). Roach’s lawyers argued that the criteria for disentitlement were arbitrary and therefore inconsistent with representative democracy. They also argued that the pre-2006 legislation was invalid (Newscom 2007). In a (4–2) majority decision, the High Court agreed to overturn the ban but reaffirmed the 2004 laws that restricted voting of those prisoners serving a sentence of three or more years (ABC News 2007). Thousands of prisoners thereby became legally eligible to vote in the 2007 federal election. The decision was surprising because, as Williams noted at the time, ‘[t]his particular court has not been quick to recognise implied rights’. Further, it was a landmark ruling on account of the fact that there had never been in Australian history any explicit affirmation of the right to vote in the High Court (Maley 2007). The Court provided a brief justification for its decision in a press release it issued a month later. It stated that ‘the 2006 amendments were inconsistent with the system of representative democracy established by the Constitution’ and that ‘voting in elections lies at the heart of that system of representative government’; therefore, disenfranchising ‘a group of adult citizens without a substantial reason would not be consistent with it’. The Court’s reason for

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Table 4.1 Length of sentence that disqualifies prisoners from voting in each Australian jurisdiction Jurisdiction

Length of sentence

Commonwealth New South Wales Victoria Queensland Western Australia South Australia Tasmania Australian Capital Territory Northern Territory

3 years or more 1 years or more 5 years or more Any prison sentence 1 years or more No restriction 3 years or more No restriction 3 years or more

upholding the 2004 amendment (that is, excluding those with a sentence of three years or more) was that the ‘net of disqualification’ in the 2006 changes ‘was cast too wide and went beyond the rationale for justifying a suspension of a fundamental incident of citizenship’, whereas ‘the three year criterion in the pre-2006 legislation did sufficiently distinguish between serious lawlessness and less serious but still reprehensible conduct’ (High Court of Australia 2007; see also Orr and Williams 2009). Despite this welcome recision of the 2006 legislation, there is still the question of whether any prisoner at all should be prevented from voting. At present, the following disqualifications apply Australia-wide: for federal elections, the threshold for exclusion is a sentence of imprisonment of three years or more; in South Australia, the Australian Capital Territory and the Northern Territory there is no disqualification, whereas in Queensland any period of imprisonment attracts disqualification. For Tasmania a three year sentence is the threshold, in Victoria a five year sentence, while in New South Wales and Western Australia it is one year.17 Voting disqualification can endure even after sentences have been completed and voting rights restored. Once prisoners are struck off the roll there are a number of obstacles to their re-enrolment, thereby effectively rendering the transitory legal disqualification permanent for many prisoners.18 Justice Michael Kirby has noted the inconsistency whereby the Australian Constitution ‘expressly provides’ that a person sentenced to imprisonment of up to one year may be elected to parliament and yet the act of voting is denied to those with a sentence of three years or more (Kirby 2007, 57). The

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formal disqualification of many prisoners is difficult to defend within the prevailing frameworks of liberal democratic ideals, international law and current thinking on criminology and penology. The retention or recovery of the fundamental democratic right to vote has enormous symbolic value (particularly in relation to the process of rehabilitation) because it signifies that, despite a person’s incarceration, she or he retains the full status of a person (that is, a bearer of rights) and an Australian citizen (in liberaldemocratic orders it is primarily, and almost exclusively, legal citizenship that signifies a person’s membership of a political community (Turner and Hamilton 1994, i)). Especially vulnerable to the loss of civil rights are Aboriginal prisoners whose rate of incarceration is extremely high compared to that of the non-Aboriginal population (comprising about 22 per cent of the total prison population (HREOC 2007, quoting ABS figures)). It has been argued that the deprivation of the prisoner vote is questionable because under international law and covenants prisoners are indeed citizens and should therefore retain their voting rights: Reasonable restrictions are allowed, but such restrictions arguably should only concern enrolment or registration mechanics, or be tailored to restrictions relevant to the ability to understand and take part in the balloting process. (Orr 1998, 61–2)

Australian practice conflicts with trends in international law. The European Court of Human Rights ruled in 2004, for the second time, that the section of the UK Representation of the People Act 1983 prohibiting all prisoners from voting breaches Article 3 of the European Convention on Human Rights (ECHR). In 2002 the Supreme Court of Canada heard the case of Sauve v Canada (Chief Electoral Officer) and considered whether the disenfranchisement of prisoners serving sentences of two years or more infringed the Canadian Charter of Rights and Freedoms. The majority of judges struck down the law on the grounds that prisoner disenfranchisement undermined respect for the law, ‘served no legitimate criminal justice purpose and had a disproportionate effect on Aboriginal Canadians’. According to the Court, the law sent ‘an unacceptable message that democratic values are less important than punitive measures ostensibly designed to promote order’. Such a law, the Court held, also undermines the legitimacy of the governments that impose it (2002, cited in Norberry 2003, 99).

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Whether those currently disqualified in Australia will ever be enfranchised is debatable considering that Australia, unlike Canada with its Charter of Rights and Freedoms, offers no Constitutional guarantee of the franchise from which to defend prisoner voting. The right of prisoners to vote therefore falls largely to the discretion of parliaments who are well aware that the voting public is unsympathetic towards proposals to restore such rights. It has been noted that the arguments generally invoked in debates about prisoner enfranchisement ‘fall so conveniently along party lines’ that the entitlement of convicted prisoners to vote will be at the discretion of the party with the majority vote in the lower house (Fitzgerald 2005, 1).19 Still, there is no guarantee that the new Labor government will grant federal voting rights to prisoners serving sentences of three years or more and even if it did, the decision could be easily reversed by the next government. The High Court could conceivably relax restrictions using sections 7 and 24 of the Constitution – which require that Federal Parliament be ‘directly chosen by the people’ – as they were in Roach v Commonwealth 2007 (see above); in other words, the implied right referred to in Roach could be invoked and extended to cover those serving sentences of three or more years. As Orr et al. note, these sections ‘could be interpreted by a rights-oriented High Court to deny Parliament the power to disenfranchise competent adult citizens’ (Orr et al. 2003a, 390). Further, lawyers could refer to the fact that Australia is a signatory to the International Covenant on Civil and Political Rights, Article 25 of which (in combination with Article 2) provides that ‘every citizen shall have the right to vote at elections under universal suffrage without a distinction of any kind on the basis of race, sex or other status’. In the meantime, as Orr et al. have observed, ‘it remains ironic that some libertarian-minded Australians prefer to go to jail, for a symbolic period, rather than be compelled to vote, whereas a significant number of prisoners want to vote, but are unable to’ (Orr et al. 2003a, 390).

The diaspora and permanent residents A significant number of those who fail to vote in federal elections are made up of two constituencies: the diaspora and permanent residents. The Australian diaspora is significantly disadvantaged by current electoral arrangements. Although Australian electoral offices try to service the needs

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of the itinerant, the homeless, prisoners and even Australians living in the Antarctic, the disapora’s extensive exclusion persists. Speaking on behalf of the Southern Cross Group20 Anne MacGregor estimates that, of the approximately 700 000 adult Australian citizens currently living overseas, ‘only about 15 000 Eligible Overseas Electors [are] on the electoral roll’. Expatriate disenfranchisement is related to limitations on enrolment under the Commonwealth Electoral Act 1918. Although it is not compulsory to vote once out of Australia, failure to vote will likely result in having one’s name struck off the electoral roll. Once this has happened (and provided the person concerned has been out of the country for three years) Australian expatriates have no legal right to re-enrol from overseas and can only do so on their return to Australia (and after having resided at an address for one month or more) (McGregor 2006). It has been suggested that another excluded group, permanent residents, should be granted voting rights on the grounds that they pay taxes at the same rates as legal citizens, ‘are equally subject to Australian law, and are equally part of Australian communities as are citizens’ (Orr 2003, 6–7). As with prisoners, the case of permanent residents is one of the few in which the franchise established in 1902 has been limited rather than expanded over time. In 1981 the Statute Law (Miscellaneous Amendments) Act No. 176 (section 32) disentitled British subjects who were not Australian citizens but resident in Australia, even those of many years standing. Exempt were those who enrolled as voters before 26 January 1984. Consequently, since 1984 non-citizens resident in Australia have only been entitled to enrol and vote if they take out Australian citizenship. Those British subjects who are not Australian citizens but who had enrolled before 26 January 1984 retain the right to vote (Brooks 1993, 229). Five per cent of the Australian population consists of permanent residents, of whom only a small number of British citizens who emigrated before 1984 are entitled to vote (Louth and Hill 2004).

Other exclusions It is important to consider the manner in which present electoral arrangements, whether intentionally or not, have led to the electoral exclusion of any other groups of citizens. In other words, there are other forms of voting

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exclusion operating in Australia today that are not, strictly speaking, legal disentitlements. According to human rights law the Australian government is obligated to take effective measures to ensure that all persons entitled to vote are able to exercise that right. Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed. If residence requirements apply to registration, they must be reasonable, and should not be imposed in such a way as to exclude the homeless from the right to vote . . . Voter education and registration campaigns are necessary to ensure the effective exercise of article 25 rights by an informed community. (General Comment 25, paragraph 11, cited in HREOC 2007)

The Australian state has generally taken this obligation very seriously, but there have been some notable, though unintentional, deviations and exclusions, particularly among groups who already experience other forms of social disadvantage. The homeless In terms of access to the vote, Australian law and practice have been reasonably liberal with regard to homeless people. For federal elections, voters only have to reside in a federal division for a month in order to enrol. The standard electoral form requires a residential address but homeless and peripatetic citizens can enrol as ‘Itinerant Electors’ (Commonwealth Electoral Act 1918, section 96; Orr et al. 2003a, 390). Nevertheless, the underregistration (and therefore low voting participation) of homeless people persists as a matter of concern in the Australian setting. Despite the provision of itinerant enrolment arrangements, a significant proportion of the homeless are not enrolled to vote. The Australian Bureau of Statistics estimates that only 5860 homeless people are correctly enrolled as itinerant electors (JSCEM 2005, 14). Research conducted by the Public Interest Law Clearing House (PILCH) Homeless Persons Legal Clinic in March 2005 has revealed some worrying findings. The study estimates that although there were approximately 64 000 homeless people eligible to vote at the 2004 federal election,21 ‘at least’ 43 000 of them (67 per cent) were not enrolled to vote. Yet the study also found that ‘at least 54% of homeless people’ would like to be enrolled

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(Lynch and Tsorbaris 2005, 5). Another 2004 study conducted jointly by the AEC and the Swinburne Institute for Social Research found that 64 per cent of homeless people did wish to vote but ‘did not know how to engage with the system and therefore found it easier to stay off the electoral roll’ (Dario 2005, 9). Non-existent and incorrect enrolments are major problems for the homeless; the PILCH study found that 29 per cent of homeless people were enrolled (incorrectly) as ordinary electors, whereas only 4 per cent were enrolled (correctly) as itinerant electors. This situation may be related to the fact that the majority (72 per cent) of homeless people are unaware of the fact that they are entitled to vote even though they do not have a fixed residential address. Further, only 10 per cent of homeless people are aware that, due to their status as itinerant electors, they would not be subject to fines for failure to vote. This is noteworthy because 29 per cent of homeless people report that fear of being fined for failing to vote in the past is a major disincentive to enrolling.22 There are a number of other difficulties that inhibit the enrolment of homeless people. Because they do not have a stable address, the homeless often have incorrect details recorded against their name and are more likely to have their name removed from the roll. Lack of transport to polling stations and ignorance that third parties are allowed to assist them in voting are other commonly cited reasons for failure to vote (Thompson 2004). Further, homeless people ‘are often outside the mainstream media loop’ and may therefore be unaware that an election has been called (Lynch and Tsorbaris 2005, 20; Guerra and Lester 2004). Homeless people generally have ‘reduced literacy’, which not only ‘impacts on their knowledge of current events’ but also affects ‘their ability to complete the required AEC forms within a limited time frame’ (Lynch and Tsorbaris 2005, 20). They are also less likely to be able to prove their identity, a problem that became worse with the more stringent enrolment requirements introduced under the 2006 legislation (see below). As a consequence, the shorter enrolment deadlines now in place will make it more difficult for homeless people to ensure that they are correctly enrolled (Thompson 2004). People with disabilities Research conducted by Scope Victoria in 2004 indicates that people with disabilities voted in lower than average numbers in the 2004 federal election

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(91 per cent compared with an average of 95 per cent), with half of those who failed to vote stating that ‘they were not listed on the Electoral Roll’. According to one-third of the respondents, the following difficulties were experienced, most of which were considered ‘disincentive[s] for participation’: limited access to the polling booth, including a lack of ramps, a lack of disabled parking, pain in walking, standing in line and standing for too long, crowds, lack of shade and ‘claustrophobic or room atmospherics problems (lighting)’ (Scope 2004, 2). On behalf of its stakeholders, the NSW Disability Discrimination Legal Centre has identified a number of other impediments to voting participation: some polling places and polling booths are not physically accessible to voters with a physical disability (for example, they are not wheelchair accessible) and they lack proper amenities such as accessible toilets (NSW Disability Discrimination Legal Centre 2005, 7–9). Those who are unable to complete the ballot paper independently require the assistance of an electoral official ‘or another personally chosen representative’, thereby preventing them from casting a secret and independent vote. Despite the reported problems, electoral authorities are responsive to the difficulties faced by people with disabilities. Aware of their obligations under the Disability Discrimination Act (DDA), which came into effect on 1 March 1993 (and which makes it unlawful to discriminate on the basis of disability), the AEC is currently working towards facilitating the voting participation of those with disabilities. It provides an extensive range of services to this end: for example, between 1998 and the 2001 federal election the number of polling places with wheelchair access increased by approximately 30 per cent (AEC 2007). For blind and visually impaired voters E-voting and Braille ballots have been trialled in Victorian and federal elections and there have also been successful trials of E-voting in the Australian Capital Territory and the Northern Territory (Hill and Alport 2007). At this point we will consider a number of broad aspects of Australia’s voting system that impact – positively and negatively – upon the capacity of Australians to enjoy full electoral rights.

Compulsory voting One highly distinctive feature of the Australian political landscape is compulsory voting. It merits attention here, partly because some voting

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libertarians have argued that it infringes certain political rights but also because, due to its capacity to enhance free and unrestricted access to the ballot, it produces unusually high and socially even voting participation, thereby serving the value of political equality. In other words, it has been argued that, on the one hand, compulsory voting violates negative liberties, and on the other, that it enhances positive freedoms. Australia is one of the few advanced democracies to use compulsory voting and it was the first English-speaking country to introduce it (Sawer 2001, 24). In 1914 Queensland was the first state to introduce compulsory voting; over the next 28 years other states and territories followed suit.23 Compulsory enrolment for federal elections was introduced in 1911 but voting itself did not become mandatory until 1924. And it wasn’t until 1983, as we have seen, that it became compulsory for Aborigines and Torres Strait Islanders to register and vote. Compulsory voting has had a generally positive effect in terms of expanding the franchise. Orr has noted that it ‘elevated the status of the franchise from a privilege to a duty’. Further, the compulsion encouraged ‘electoral commissions to treat every vote as sacred and to expend considerable efforts in ensuring adequate access to the ballot’ (Orr et al. 2003a, 390). Accordingly, apart from significantly raising turnout and thus enhancing the values of political inclusiveness and electoral equality, the advent of compulsory registration and voting has had other democratic ramifications, including innovations to ensure that everyone can register a vote, regardless of barriers such as pregnancy, residence in remote areas or conflicting commitments. Aside from the purpose of regularising the electoral roll, compulsory voting was also introduced to address the problem of low voter turnout. It proved to be an extremely decisive and successful remedy. At the last federal election, held in 1922, immediately prior to the introduction of compulsory voting, the turnout of registered voters was 59 per cent (RV) but turnout at the first federal election after 1924 (in 1925) surged dramatically to an average of 91 per cent (RV); for the decades since it has hovered in the 95 per cent (RV) range. Against the general pattern of low and socially unequal turnout in most established democracies worldwide, Australia has maintained relatively high and socially even voting turnout, thereby enhancing the principles of political equality, legitimacy and minimisation of elite power.

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Given these positive democratic effects it is worth bearing in mind that the compulsion imposes a relatively minor restriction on the right to personal freedom compared to other problems of collective action resolved in democracies by mandatory means (such as paying taxes, jury duty and compulsory school attendance) (Lijphart 1997, 1). The Australian system embodies an implicit assumption that the harm of restricting the freedom to abstain is outweighed by the benefits that accrue. The realisations of other competing liberal-democratic desiderata are seen to be more urgent than any alleged right to be free to abstain. In other words, the restriction of a single negative liberty is conceived to permit the realisation of a range of positive freedoms that are seen to flow from increased participation and a more representative – and therefore more legitimate – legislature.

The electoral roll and voting access In a nation that invented itself into existence through the ballot box and which prides itself on its unusually high election turnout, the establishment and maintenance of a reliable electoral roll has been of paramount importance (with recent experience, such as the 2000 election, in less wellmanaged systems such as that of the USA underlining this). Historically, our attempts to create electoral rolls with completeness and accuracy have been extremely successful (Sawer 2003, 52–3), but more recently, legislation relating to the electoral roll has served to narrow rather than expand the franchise. Changes made by the Howard government to voter registration procedures under the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 have exacerbated the exclusion of groups of already vulnerable (that is, at risk of abstention) voters, particularly young people, prisoners and the homeless (Hughes and Costar 2006, passim; Koutsoukis 2007). The 2006 amendments to the Electoral Act mean that the electoral rolls close immediately after an election is called.24 Previously, and since 1984, there existed a seven-day grace period between the issue of the writs and the close of the roll for first time enrolees or those wishing to update existing enrolment details. In the one-week period preceding the 2004 federal election 284 110 citizens updated their enrolments. Of these, 78 816 were newly enfranchised (and mostly young) voters (Hughes and Costar 2005). There were two rationales given by the JSCEM Report on

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the Inquiry into the Conduct of the 2004 Federal Election for the abolition of the statutory period of grace. The first seems to be punitive in nature: by failing to keep their enrolment up to date the citizens concerned were not only guilty of offences under the Electoral Act but were also wasters of public money, thus deserving of disenfranchisement (JSCEM 2005, 35). Yet disenfranchisement seems a rather perverse and counterproductive penalty for failure to ensure voting eligibility. Second, it was suggested that the previously employed seven-day grace period made the roll vulnerable to electoral fraud; it was seen as an ‘opportunity for those who seek to manipulate the roll to do so at a time where little opportunity exists for the AEC to undertake the thorough checking required’ to ensure ‘roll integrity’. The JSCEM expressed concern that the level of fraud was ‘sufficient to change the result of an election’ (JSCEM 2005, 36). Such claims about the roll’s vulnerability to fraud are curious given that no evidence of systemic fraud or organised schemes of dummy enrolments have been uncovered. There have been some highly publicised cases of enrolment fraud but these are few in number and were all picked up by AEC officers and duly reported to the federal police. Independent inquiries and audits so far carried out on the integrity of the federal electoral roll have found that the roll is reliable, accurate and of ‘high integrity’ (Hughes and Costar 2006, 38–43). Through its habitation reviews and electronic data matching regime the federal electoral roll has been well maintained, with the Australian National Audit Office review (2002) rating it as ‘over 96% accurate, 95% complete and 99% valid’ (Orr 2003, 16). Further, as the AEC stated in its submission to the 2005 JSCEM inquiry, procedures for ensuring the accuracy of the roll are applied with equal rigour in both election and non-election periods (AEC 2005, 7). Responding to arguments that ‘no proof that enrolment fraud’ was ‘sufficiently widespread to warrant any action’ the JSCEM asserted that their promulgators ‘have missed the point’ and that the ‘fundamental issue’ is ‘to prevent any such fraud before it is able to occur’ (JSCEM 2005, 35). The AEC is of the view that closing the roll early will in no way improve roll accuracy; quite the opposite, because less time will be available for existing electors to correct their enrolments and for new enrolments to be received (AEC 2000, 64). The AEC further contends that ‘[t]his expected outcome is in direct conflict with the stated policy intention of the Government to improve the accuracy of the rolls’, noting that ‘it will undoubtedly

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have a negative impact on the franchise, an outcome which the AEC cannot support’. Some of the other negative effects of the early closing of rolls anticipated by the AEC include ‘a rise in the level of declaration voting . . . . . . with consequential delays in the provision of election results’, confusion caused by putting ‘the federal electoral system out of line with some State and Territory close of rolls’ and the negative effect on the voting participation of potential new (especially young) enrolees (AEC 2000, 64). A further amendment under the Electoral Integrity Act 2006 that stipulates more stringent identification requirements for registering to vote, has been particularly controversial. Documentary evidence of eligibility is now required for new enrolees or for those making changes to their enrolment details. Enrolees must now produce identity documentation (a birth certificate, passport or driver’s licence with photograph) or else have their application countersigned by two electors able to attest to their identity. Those wishing to cast a provisional vote are now required to provide proof of identity when casting their vote (or do so by the following Friday).25 This new requirement seems to have severely depressed the voting participation of those who applied for a provisional vote at the 2007 federal election. Whereas around 50 per cent of those who applied for a provisional vote in 2004 had their votes accepted, in 2007 only 14 per cent (or 24 212 out of 168 767) of provisional votes received were counted (Brent 2007, 3). Because getting people enrolled is harder than getting them to vote in Australia, such measures will doubtless lead to even lower voting turnout among the young (it is already lower than average). Further, the measure is discriminatory because it requires young people to ‘meet a hurdle’ from which older voters are shielded (Orr 2003, 16). Although stricter identification requirements and the early closing of the polls will affect a number of already politically marginalised social groups, namely, Indigenous Australians and the homeless, the potential exclusion of young voters bears special notice. The AEC has estimated that at the time of the 2004 electoral roll close only 82 per cent of Australians between 17 and 25 years of age were enrolled compared with a national average of 95 per cent. This lower-than-average registration and turnout rate has worsened due to the 2006 legislation, which introduced barriers to registration (such as the early closure of the rolls and more stringent identity requirements) that have had a disproportionate effect on younger voters. Though some claimed that the number of young people enrolled had jumped since the

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2004 election, according to Simon Jackman and Peter Brent ‘the 18–24 subset’ actually ‘shrunk’, albeit minimally. The situation would have been a lot worse save for the fact that the former Howard government postponed the issuing of the writs and so the rolls were left open for three days after calling the election (Jackman and Brent 2007).26 Declining voter turnout among the young is a concern because it augurs ill for the future of Australian democracy. Whereas the low voting participation of the young was once dismissed (correctly) as a lifecycle phenomenon, evidence is emerging that the civic disengagement of the young could signal a pattern of disengagement that is likely to persist (Fotos and Franklin 2002). Getting young people into the voting habit early seems to be crucial for the future of vital (that is, participatory) democracies. In some marginal seats their exclusion may decide elections since ‘[a] reasonable estimate now is that blocking last minute enrolments by 18–22 year olds is worth about 150 votes to the Coalition on average in every Commonwealth electoral district’ (Hughes 2002). It has been suggested by peak bodies representing homeless people that the new proof of identity requirements will also ‘significantly impair the ability to enrol to vote of financially and socially disadvantaged people, particularly people experiencing homelessness’, many of whom do not hold acceptable forms of identification. Further, many financially and socially disadvantaged people cannot access, or are unwilling to access, persons . . . in the ‘prescribed class’, including members of the police force, Justices of the Peace, doctors and lawyers. (PILCH 2005, 19)

In any compulsory voting regime, registration should be universally easy so as not to unduly burden voters and to ensure a good rate of participation. In Australia, it has normally been quite simple for people to register to vote; however, these recent changes to the law make the compulsory voting system less effective and more difficult to defend. The 2006 legislation is curious since it disenfranchises hundreds of thousands of potential voters for the sake of what appears to be a phantom problem. Since the right to enrol, like the right to vote, is not Constitutionally protected, Australian citizens will have difficulty appealing to judicial protection in redressing any exclusion that results from the 2006 legislation.

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One vote, one value Although property qualifications remain a restriction on voting in some local government elections (Orr et al. 2003a, 389),27 the principle of one vote, one value is considered to be at the heart of fair elections in Australia. And yet the freedom to participate equally receives no Constitutional protection and continues to be violated in a number of respects (Orr et al. 2003b, 3). While the Commonwealth Electoral Act 1902 proscribes plural voting under the heading, ‘One adult, one vote’, it says nothing specific about the principle of one vote, one value. Once the franchise had become more or less universal in Australia, electoral reformers shifted their attention to the problems of vote weighting (malapportionment, gerrymandering and redistributions).28 The principle of one vote, one value is, of course, impugned by the Constitutional requirement set out in section 7 that each of the original states at federation has an equal numbers of senators. This gives rise to extraordinary anomalies so that, for example, the Senate vote of a Tasmanian voter is worth almost 13 times more than that of a New South Wales voter.29 The situation is somewhat better – though still not perfect – in the House of Representatives, where, although section 24 of the Constitution requires that members shall be ‘directly chosen by the people’ and even that ‘the numbers of members chosen in the several States shall be in proportion to the respective numbers of their people’, it also stipulates that each state should have at least five members of the House. This means that, regardless of whether a state’s entitlement on the basis of population were lower than five, it would still be allowed to have that minimum level of representation (Harris 2002, 209). It should also be noted that the fact that population, rather than electoral enrolments, determines each state and territory’s representation means that a state or territory with a lower proportion of children and non-citizens (such as South Australia) will be underrepresented. There are several legislative constraints designed to reduce the levels of malapportionment within states and territories. The most significant malapportionment-reducing legislative requirements are contained in sections 66 and 73 of the Commonwealth Electoral Act 1918. These sections require electoral commissioners to draw boundaries that endeavour to ensure that no district within a state or territory shall be more than

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3.5 per cent under or over the average enrolment for that state or territory. Any allowance for special circumstances is restricted to +/– 10 per cent. Section 59 of the same Act requires that a redistribution be held in a state or territory at least every seven years, or if more than one-third of divisions in a state or territory deviate from the average by over 10 per cent. These provisions have the effect of reducing malapportionment. The boldest experiment in dealing with this problem was instituted in South Australia in 1991 when a fairness clause was inserted into the state Constitution. This provision effectively requires the South Australian Boundary Commission to predict not just demographic changes, but also future voting intentions. The law aims to ‘ensure, as far as practicable, that . . . if candidates of a particular group attract more than 50 per cent of the popular vote’ they will win more than 50 per cent of the seats (Orr et al. 2003a, 391). Electoral studies specialist Glynn Evans has analysed the impact of the fairness clause on the 1993, 1997 and 2002 South Australian elections and found that the fairness clause produced a result that was the opposite of that intended by its advocates (Evans 2005, 2–3). The problem of rural weighting has been especially problematic in the two geographically largest states, Queensland and Western Australia. Queensland conducted a comprehensive inquiry into its electoral system in 1990, the outcome of which resulted in some improvements. Western Australia followed suit in 2001 by adopting a close variant of the Queensland system (Orr et al. 2003a, 391). It has also been argued that a further violation of the one vote, one value principle lies in the fact that a political party can form a government with less than 50 per cent of the two-party preferred vote. For law academic Bede Harris (2002, 209) the preferential voting electoral system prescribed in the Commonwealth Electoral Act 1918 does not produce ‘a House that reflects the distribution of first preference votes between parties’ because the system is based on single member electorates. Parties have been able to form federal government without a majority on numerous occasions, usually at the expense of the ALP (Orr 2003, 36). The High Court has had two opportunities (in 1975 and 1996) to affirm the centrality of the principle of one vote, one value to liberal democracy. In both cases the majority of the Court failed to acknowledge that the concept of representative government implied or required an electoral system that embodied such a principle. It is noteworthy that one of these cases

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was decided after the High Court ‘found that rights were implied by representative government’ (Harris 2002, 38).30 In Attorney-General (Cth); ex rel McKinlay v Commonwealth (1975), the High Court heard a challenge to the section of the Commonwealth Electoral Act 1918 that permits a 10 per cent variation in the number of electors in each electorate for the House of Representatives. Surprisingly, the majority of judges (with Murphy J dissenting) found that the deviation was not inconsistent with the Constitutional requirement that members be ‘directly chosen by the people’. According to the Court the ‘requirement in section 24 of the Constitution that the members of the House be directly chosen by the people’ did not guarantee ‘equality of electors or people in each electorate’ (Carney 2003, 176). Whereas the High Court held that ‘something approaching numerical equality’ of voters in each electorate was important, it also held that this was not ‘necessarily found in the Constitution as a guarantee of representative democracy’ (Downing 1996). Similarly, in McGinty v Western Australia (1996) the Court reversed the trend of finding implied rights in the Constitution and found that the implied principle of representative democracy did not imply ‘absolute equality in voting strength’ or that one vote must mean one value (Harris 2002, 210, n. 2). Given the outcome of these two cases the current system that enables electoral inequality is unlikely to be affected by any legal challenge. A further factor discouraging hopes of change in the future is that a 1988 referendum intended to entrench electoral equality failed decisively. The Constitution Alteration (Fair Elections) 1988 referendum sought to enshrine in the Constitution a guarantee that all Commonwealth, state and territory elections would be conducted democratically. The amendment proposed a maximum of 10 per cent on deviations from the mean numbers of voters per electorate but it failed to achieve a majority of votes (only 32 per cent voted ‘yes’ nationally) and was rejected in all states (Blackshield and Williams 2002, 1309). With no ‘solid constitutional guarantee’ from which to mount arguments for strict vote weighting, the electoral system now relies on a political and legal consensus that, at the very maximum, no seat should be above or below a tolerance of 10 per cent from the average enrolment (Orr et al. 2003a, 391). This consensus is mandated by the Commonwealth Electoral Act 1918 amendment of 1974, which permits electorates to have a 10 per cent deviation from the average in population. It has been suggested that ‘the simplest route to one vote one value

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would be to abolish seats and treat each jurisdiction as one electorate’ (Orr 2003, 35). One final factor impinging upon the principle of one vote, one value is the way in which private economic interests are able to affect electoral outcomes, mainly through campaign funding. As Orr et al. note, ‘Substantive political equality, in an age of disparate, especially corporatised, wealth, will . . . remain a hollow dream without effective regulation to restrain the excesses of money politics’ (2003b, 3). In order to address this problem, the Rudd Labor government introduced in 2008 legislation that requires anyone donating over $1000 to a political party to declare their identity.

Securing electoral rights The electoral rights of Australians are not as secure as they could be. As law academic Adrian Brooks cautions, the ‘franchise as it exists today is the gift of Parliament and what Parliament gives, Parliament may take away’ (1993, 230).What is more, our electoral system is subject to less judicial intervention and protection than is experienced in places such as the USA. As a result, this area of the law has been ‘largely the domain of political scientists, parliamentarians and . . . electoral officials’ (Orr et al. 2003a, 402). Hence, it is incumbent on parliaments to be particularly careful when proposing any measure that impedes access to voting participation or deprives any person of their voting rights. As we have seen, such care has not always been taken. For Twomey, the fact that the High Court has been inconsistent in its readings of Constitutional provisions relating to the franchise (narrowly interpreting section 41, generously interpreting section 24) is indicative of how fluctuating, inadequate and precarious is the current Constitutional protection of the franchise (2000, 153). As Constitutional law academic Gerard Carney has noted, there has been a conspicuous ‘lack of successful Constitutional challenges to the electoral regime’ (2003, 171). Many have placed their faith in parliament and in a belief that Australian society is inherently democratic but others suggest that such faith is misplaced given the patchy history of the Australian franchise (see, for example, Brooks 1993). Accordingly, it has been argued that the best solution for guaranteed unfettered and equal voting rights is their entrenchment in a bill of rights

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(Harris 2002, 37) that would securely ‘place electoral debates in a rights context, contextualise proposals for reform and protect existing voting rights from exclusion’ (Norberry 2003, 99). Were the right to vote protected by a rights charter, such groups as the homeless, the young, the diaspora, Aboriginal peoples and people with disability would undoubtedly vote in higher numbers than they do at present because the state would be more strictly bound to ensure that all currently experienced obstacles to voting – legal and effective – are removed. Given the recent decision in Roach v Commonwealth (2007), it might be premature to give up on the idea of further expansion of the franchise via the courts. If the High Court were prepared to ‘construct a right to vote’ that transcended section 41’s power to merely ‘narrow the franchise’, as George Williams suggests, such a positive right might ‘for example, impose a duty upon the Commonwealth to provide the facilities needed by Indigenous peoples in remote areas to cast an effective vote’ (Williams 1996, 862–3). Meanwhile, the various Constitutions of the Australian states and territories also offer opportunities and sources of further implied constitutional freedoms (Williams 1996, 863–6) especially if the courts are prepared to accept Justice Kirby’s interpretation of parliamentary sovereignty when commenting in 2006 on the blanket disenfranchisement of prisoners: The Federal Government argued that prisoners under sentence had temporarily forfeited their right to take part in federal elections. It said that it was up to parliament to decide such matters because of the ‘sovereignty’ of parliament. However, by the wisdom of the constitution, no parliament is completely sovereign. It is only the people who are sovereign. (2007, 57)

Conclusion In advanced liberal orders such as Australia’s it is primarily, and almost exclusively, legal citizenship that signifies a person’s membership of a sociopolitical community. Being able to vote is effectively the right to have rights; in a nation that has put so much effort into ensuring electoral fairness and that may even have used it as a substitute for a more robust system of rights protection, any restriction on voting access should be approached with great caution.

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As has been shown, Australian electoral arrangements embody some distinctive features that serve to maximise civic membership in terms of voting participation. In a compulsory voting regime where almost everybody votes it is important to ensure that there are as few hurdles to registration and voting as possible and that those most in need of the protection that voting can afford are entitled, enabled and actively encouraged to enrol and vote. But there persist a number of features that represent either legal or effective impediments to voting freely and equally. Most conspicuously, what is lacking is a Constitutional guarantee of voting rights beyond what can be found in section 41 and implied in sections 7 and 24. Australia is a signatory to the International Covenant on Civil and Political Rights, which, among other things, stipulates that ‘every adult citizen shall have the right to vote without distinction and regardless of their circumstances’. Yet suffrage rights (as well as the principle of one vote, one value) are, as we have seen, predominantly at the discretion of parliaments.

References Alport, Kate and Lisa Hill, 2008. ‘Voting Attitudes and Behaviour Among Aboriginal Peoples: Reports from 29 Anangu Women.’ Proceedings of the Australasian Political Studies Association Conference. University of Queensland, 6–9 July 2008. Attwood, Bain and Andrew Markus, in collaboration with Dale Edwards and Kath Schilling, 1997. The 1967 Referendum Or When Aborigines Didn’t Get the Vote. Canberra: Aboriginal Studies Press. Australian Broadcasting Commission, 2004. News. ‘High Court Overturns Prisoner Vote Ban.’ Accessed online at www.abc.net.au/news/stories/2007/08/30/2019422.htm, 12 September 2007. Australian Electoral Commission, 2000. Joint Standing Committee on Electoral Matters’ Inquiry into the Integrity of the Electoral Roll, Submission 26, 17 October. —— 2004. ‘Compulsory Voting’. Electoral Backgrounder No. 17. Accessed online at www.aec.gov.au/ content/What/voting/compulsory voting.htm, 4 November 2007. —— 2005. Australian Electoral Commission Annual Report 2004–5, URL. Accessed online at www.aec.gov.au/ content/What/publications/annual report/2005/index.htm, 13 September 2006. —— 2006. ‘Changes to the Commonwealth Electoral Act 1918.’ Electoral Newsfile No. 128, October. —— 2007. Disability Action Plan. Accessed online at www.aec.gov.au/About AEC/ Publications/Disability.htm, 4 February 2007.

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Blackshield, Tony and George Williams, 2002. Australian Constitutional Law and Theory, 3rd edn. Sydney: Federation Press. Blomberg, Jeffery, 1995. ‘Protecting the Right Not to Vote from Voter Purge Statutes.’ Fordham Law Review, 64: 1015–50. Brent, Peter, 2007. ‘2007 Election-Provisional Voting.’ Democratic Audit of Australia Website. Accessed online at http://democratic.audit.anu.edu.au/categories/ electoralfrm.htm, 3 March 2008. Brooks, Adrian, 1993. ‘A Paragon of Democratic Virtues? The Development of the Commonwealth Franchise.’ University of Tasmania Law Review, 2: 208–48. Carney, Gerard, 2003. ‘The High Court and the Constitutionalism of Electoral Law.’ In Realising Democracy: Electoral Law in Australia, eds G. Orr, B. Mercurio and G. Williams. Sydney: Federation Press. Chesterman, John, 2006. ‘Chosen by the People? How Federal Parliamentary Seats Might be Reserved for Indigenous Australians Without Changing the Constitution.’ Federal Law Review, 34(2): 261–85. Chesterman, John and Brian Galligan, 1997. Citizens Without Rights: Aborigines and Australian citizenship. Melbourne: Cambridge University Press. Dario, Gina, 2005. Electorally Engaging the Homeless, Research Report Number 6, Canberra: Australian Electoral Commission. Downing, Susan, 1996. ‘One Vote One Value – An Implied Right Too Far? The High Court Decision in McGinty & Ors v State of Western Australia (1996).’ Department of the Parliamentary Library, Law and Public Administration Group. Research Note 38, 29 April 1996. Accessed online at www.aph.gov.au/library/pubs/rn/1995– 96/96rn38.pdf, 2 April 2008. Evans, Glynn, 2005. ‘Fairness and Unfairness in South Australian Elections.’ Thesis submitted for the degree of Master of Arts. Adelaide: Politics Department, University of Adelaide. Fitzgerald, Sandey, 2005. ‘Ending Prisoner Disenfranchisement.’ Democratic Audit of Australia Website. Accessed online at http://democratic.audit.anu.edu.au/ categories/auditpapersfrm.htm, 20 March 2008. Fotos, Michael and Mark Franklin, 2002. ‘Na¨ıve Political Science and the Paradox of Voting.’ Paper prepared for the annual meeting of the Midwest Political Science Association. Chicago: Palmer House Hilton, 25–28 April. Galligan, Brian, 1994. ‘Australia’s Political Culture and Institutional Design.’ In Towards and Australian Bill of Rights, ed. Alston, Philip. Canberra: Centre for International and Public Law Guerra, A. and N. Lester, 2004. Improving Access to Voting Rights Amongst the Homeless in Brisbane. St Lucia: University of Queensland Press. Harris, Bede, 2002. A New Constitution for Australia. Sydney: Cavendish Publishing. High Court of Australia, 2007. ‘Vicki Lee Roach v Electoral Commissioner and Commonwealth of Australia.’ Press release, 26 September. Accessed online at www.hcourt. gov.au/media/Roach%20v%20Electoral%20Commissioner%20(reasons).pdf, 15 October 2007. Hill, Lisa and Kate Alport, 2006. ‘Political Exclusion and Electronic Conduits to Civic [Re]Engagement in Australia’. Proceedings of the Australasian Political Studies Association Conference 2006. Newcastle: University of Newcastle.

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—— 2007. ‘[Re]connecting Australia’s Politically Excluded: Electronic Pathways to Electoral Inclusion.’ International Journal of Electronic Government Research, 3(4): 1–19. Hughes, Colin, 2002. Submission No. 49 to JSCEM. The Integrity of the Electoral Roll: Review of ANAO Report no. 42, 2001–2: Canberra. —— 2006. Limiting Democracy: The Erosion of Electoral Rights in Australia. Sydney: UNSW Press. Hughes, Colin and Brian Costar, 2005. ‘Proposed Changes Could Deny Hundreds of Thousands of Australians a Vote.’ Age, 3 November. Human Rights and Equal Opportunity Commission, 2000. The Right to Vote is Not Enjoyed Equally by all Australians. Accessed online at www.hreoc.gov.au/HUMAN RIGHTS/vote/index.html#fn1October 2000, 10 October 2007. Human Rights Commissioner, 2006. Media release, 23 August. Accessed online at www.humanrights.gov.au/about/media/media releases/2006/67 06.htm, 28 January 2008. Jackman, Simon, 2005. ‘Informal Voting in the 2004 Australian Election: A Brief Look at the Aggregate Data.’ Typescript. Political Science Computational Laboratory, Stanford University. Accessed online at http://jackman.stanford.edu/oz/index.php, 20 November 2005. Jackman, Simon and Peter Brent, 2007. ‘Rolls Close, Young People Still Under Represented.’ Crikey, 29 October. Accessed online at www.mumble.com.au/misc/ 20071029 crikey electoralroll.htm, 11 November 2007. Joint Standing Committee on Electoral Matters, 1997. Report of the Inquiry into the Conduct of the 1996 Federal Election and Matters Related Thereto. Canberra: Australian Government Printing Service. —— 2005. Report of the Inquiry Into the Conduct of the 2004 Federal Election and Matters Related Thereto. Canberra: Australian Government Printing Service. Justice Action Australia, 2007. ‘Prisoner Voting Rights’. Accessed online at www.justiceaction.org.au/index.php?option=com content&task=view&id=206 &Itemid=110, 13 October 2007. Kirby, Michael, 2007. ‘Prisoners’ Vote is the Australian Way.’ Australian Financial Review, 5 October: 57. Koutsoukis, Jason, 2007. ‘New Enrolment Laws Could Rob Many of Vote.’ Sunday Age, 15 April: 6. Lees, Kirsten, 1995. Votes for Women: The Australian story. Sydney: Allen & Unwin. Lijphart, A., 1997. ‘Unequal Participation: Democracy’s unresolved dilemma.’ American Political Science Review, 19(1): 1–14. Louth, Jonathon and Lisa Hill, 2004. ‘Compulsory Voting Laws and Turnout: Efficacy and Appropriateness.’ Proceedings of the Australasian Political Studies Association Conference 2004, Adelaide: University of Adelaide. Lynch, Philip, and Deb Tsorbaris, 2005. ‘Homelessness and Voting’. Submission to the Joint Standing Committee on Electoral Matters Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto. March. Maley, Michael, 2001. ‘Exporting Expertise in Electoral Administration.’ In Elections Full, Free and Fair, ed. M. Sawer. Sydney: Federation Press. Maley, Paul, 2007. ‘High Court Lets Prisoners Vote.’ Australian, 30 August. McAllister, Ian, Malcolm Mackerras and Caroline Boldiston, 1997. Australian Political Facts. Melbourne: Macmillan.

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McGregor, Anne, 2006. Personal email communication, 6 June. New South Wales Disability Discrimination Legal Centre, 2005. Submission to the Joint Standing Committee on Electoral Matters Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto, 31 March. Submission No. 68. News.com.au., 2007. ‘Court Overturns Prisoner Vote Ban’, 30 August. Accessed online at www.news.com.au/story/0,23599,22332956–29277,00.html, 20 September 2007. Norberry, Jennifer, 2003. ‘The Evolution of the Commonwealth Franchise. Tales of Inclusion and Exclusion.’ In Realising Democracy. Electoral Law in Australia, eds G. Orr, B. Mercurio and G. Williams. Sydney: Federation Press. Oldfield, Audrey, 1992. Woman Suffrage in Australia: A Gift or a Struggle?. Cambridge: Cambridge University Press. Orr, Graeme, 1998. ‘Ballotless and Behind Bars: The Denial of the Franchise to Prisoners.’ Federal Law Review, 26(1): 56–82. —— 2003. ‘Australian Electoral Systems-How Well Do They Serve Political Equality.’ Paper presented to Democratic Audit of Australia, Political Science Program RSSS, 2 August. Orr, Graeme, Bryan Mercurio and George Williams, 2003a. ‘Australian Electoral Law: A Stocktake.’ Election Law Journal, 2(3): 383–402. —— 2003b. ‘The Australian Electoral Tradition.’ In Realising Democracy. Electoral Law in Australia, eds G. Orr, B. Mercurio and G. Williams. Sydney: Federation Press. Orr, Graeme and Williams, George, 2009. ‘The People’s Choice: the Prisoner Franchise and the Constitutional Protection of Voting Rights in Australia.’ Election Law Journal, 8(1): forthcoming. Pantesco, Joshua, 2007. ‘Australia High Court reinstates voting rights for some prisoners.’ Jurist, 30 August. Accessed online at http://jurist.law.pitt.edu/paperchase/ 2007/08/australia-high-court-reinstates-voting.php, 14 September 2007. People with Disability, 2005. Submission to the Joint Standing Committee on Electoral Matters Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto, 24 March. Submission no. 50. Pratt, Angela and Scott Bennett, 2005. ‘The End of ATSIC and the Future Administration of Indigenous Affairs.’ Current Issues Brief No. 4, 2004–05, Parliamentary Library. Accessed online at www.aph.gov.au/library/pubs/cib/2004–05/05cib04.htm, 10 October 2007. Public Interest Law Clearing House, 2005. Homeless Persons’ Legal Clinic and the Council to Homeless Persons. ‘Homelessness and Voting’. Submission to the Joint Standing Committee on Electoral Matters Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto, March. Reilly, Ben, 2001. ‘Preferential Voting and its Political Consequences.’ In Elections Full, Free and Fair, ed. M. Sawer. Sydney: Federation Press. Sanders, Will, 2001. ‘Delivering Democracy to Indigenous Australians.’ In Elections Full, Free and Fair, ed. M. Sawer. Sydney: Federation Press. Sawer, Marian, 2001. ‘Pacemakers for the World.’ In Elections Full, Free and Fair, ed. M. Sawer. Sydney: Federation Press. —— 2003. ‘Enrolling the People: Electoral Innovation in the New Australian Commonwealth.’ In Realising Democracy: Electoral Law in Australia, eds G. Orr, B. Mercurio and G. Williams. Sydney: Federation Press.

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Scope, 2004. Cited in Scrutiny of Acts and Regulations Committee Victorian Electronic Democracy, Final Report, May 2005. Accessed online at www.parliament.vic.gov.au/ sarc/E-Democracy/Final Report/PartIII.htm, 5 June 2006. Stretton, Pat and Christine Finnemore, 1993. ‘Black Fellow Citizens: Aborigines and the Commonwealth Franchise.’ Australian Historical Studies, 25: 521–35. Thompson, J., 2004. Voting & Homelessness in the Australian Context: Qualitative Research Exploring Homeless People’s Voting Attitudes and Behaviour. Melbourne: Swinburne University of Technology Press. Turner, Bryan and Peter Hamilton, 1994. Citizenship: Critical Concepts. London: Routledge. Twomey, Anne, 2000. ‘The Federal Constitutional Right to Vote in Australia.’ Federal Law Review, 28: 125–53. Williams, George, 1996. ‘Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform.’ Melbourne University Law Review, 20: 848–70.

Cases McGinty v Western Australia (1996) 186 CLR 140. McKinlay v Commonwealth (1975) 135 CLR 21. Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 188 [6]). R v Pearson ex parte Sipka (1983) 152 CLR 254 Roach v Electoral Commissioner (2007) HCA 43, 2. Sauve v Canada (Chief Electoral Officer) (2002) 3 SCR 519–34.

Chapter Five

THE RIGHTS OF INDIGENOUS AUSTRALIANS

There is little doubt that Indigenous Australians continue to be the most marginalised group in Australia. Social indicators tells us that Indigenous people have life expectancies that are decades shorter than they are for non-Indigenous Australians. Any other social indicator, be it health standard, education standard, level of employment or standard of housing, sees Indigenous Australians enjoying fewer opportunities, and suffering greater burdens, than the rest of the Australian population. A recent Australian Bureau of Statistics and Australian Institute of Health and Welfare report (Pink and Allbon 2008, xxi–xxiii, 16) found that Indigenous men have an average lifespan of 59 years (against the national male average of 77 years) while for Indigenous women the average lifespan is 65 (against the national figure of 82). The health status of Indigenous people is demonstrably worse than for non-Indigenous people with Indigenous people being ‘hospitalised for potentially preventable conditions at five times the rate of non-Indigenous Australians’. While over 75 per cent of non-Indigenous students are still at school by Year 12, the figure for Indigenous students is 43 per cent. Indigenous people are more likely than non-Indigenous people to require rent and homelessness assistance, and the home buying rate for Indigenous households (34 per cent) is half that of non-Indigenous households (69 per cent). Indigenous people also have far higher incarceration rates than non-Indigenous people, with Indigenous young people being ‘under juvenile justice supervision at a rate of

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44 per 1000, compared with 3 per 1000 for other Australian youth’ (Pink and Albon 2008). These facts are not seriously disputed. But dispute does exist about what this state of disadvantage has to do with rights. On one side of the debate are those who argue simply that people have a right to, say, adequate housing, and where housing is inadequate, this constitutes the failure of one human right to be recognised. Advocates of this view point out that the term ‘rights’ incorporates not just civil and political rights – such as the right to vote and the right freely to express one’s views – but also social rights (see chapter 1). Evidence of such a view is contained in key human rights instruments, where social and economic rights are the subject of their own United Nations covenant (the International Covenant on Economic, Social and Cultural Rights). On this understanding, then, the substantially lower educational achievement of Indigenous Australians, to take another example, is clearly a rights issue as it indicates a failure on the part of the Australian state to protect adequately one fundamental human right, the right to an education. The other side to this contemporary debate sees a range of powerful figures argue that the lower educational achievement of Indigenous Australians may well be, and is, a problem, but it is not one best viewed as a rights problem. This view considers rights in a formal rather than a substantive sense and sees rights breaches only where a person is actively being denied something, not simply where inequality exists. On this view, if Indigenous Australians were being denied an education because of their race – if, say, they were turned away from attending a school because of their Aboriginality – then there would be a legitimate claim of a right being denied. But as this tends rarely to be the case (at least in the 21st century), we need not to talk about rights but rather to address the social issues that result in lower educational achievement, such as negative community perceptions of schools, parenting skills and so on. Concentration on rights has had its day, according to this argument, and to maintain rights talk in these circumstances merely distracts attention from the central issues. The rise and increasing prominence of this latter line of argument characterises what we call the fourth era in the rights history of Indigenous Australians. In this chapter four eras are considered, each of which has differently positioned Indigenous Australians in terms of rights.

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The first era was a time of no rights, when Indigenous Australians to varying degrees were seen as being unworthy of holding the same rights that non-Indigenous Australians generally possessed from birth. The civil rights phase saw Indigenous Australians come to achieve notional equality with non-Indigenous Australians, largely through the removal of racial discrimination from key state, territory and federal laws. The brief Indigenous rights phase witnessed the recognition that Indigenous Australians possessed Indigenous-specific rights prior to the arrival in Australia of Europeans, which, in some instances, they continue to hold to this day. The final, and current, anti-rights phase sees a powerful collection of voices in Australia arguing that the very significant levels of disadvantage that continue to be suffered by Indigenous Australians cannot and should not be characterised as a denial of rights, but rather should be seen now as a series of policy problems and challenges whose resolution will depend as much on lifestyle changes and acceptance of individual responsibility as they will on the better provision of government services.

Era 1: No rights (1788–1950s) The extent to which Indigenous Australians were denied rights from the arrival of Europeans to Australia until the decades following federation, is a story that now is quite widely known. Each colony – and after federation, each state – had its own Aboriginal affairs regime and each had its own way of restricting the rights of Indigenous people. Some colonies, in particular Queensland and Western Australia, specifically denied Indigenous people the vote, while others did not (see chapter 4). But all regimes, to a greater or lesser degree, enabled the movement and property ownership abilities of Indigenous people to be restricted, while each ensured that entitlements to social welfare would be denied to Indigenous people and that pre-existing entitlements to land would rarely be recognised. When the Australian Constitution was adopted, these local regimes were so extensive that power over Aboriginal affairs remained with the states, rather than passing to the federal sphere. In addition to the Constitutional provision that ensured that this was the case, the only other Constitutional reference to Aboriginal people excluded them from the official calculation of the Australian population. Meanwhile, one of the first statutes passed

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by the new Commonwealth parliament disenfranchised Indigenous people, while enfranchising non-indigenous women (Chesterman and Galligan 1997, chapter 4; Goot 2006). None of these measures served particularly pressing policy problems or even cynical election strategies. The enfranchisement of Indigenous people would barely have altered an election outcome, so relatively small and spread out were their numbers, nor did Indigenous people pose a security threat that needed to be addressed through restrictions on movement. Rather, these denials of rights served ideological purposes: they indicated that Indigenous people were unworthy of the benefits and entitlements that most other Australians, by definition, deserved. Technically, Indigenous Australians had never been denied ‘citizenship’ in their own land. From early in the 19th century, their birth in Australia saw them accorded the status of British subjects and when Australian citizenship was established by legislation in 1948, Indigenous Australians suffered no racial discrimination in their entitlement to the new status. However, the status first of British subject, and then of Australian citizen, carried no substantive rights, which meant Indigenous Australians could properly be seen as ‘citizens without rights’ (Chesterman and Galligan 1997), at least up until the latter part of the 20th century.

Era 2: Civil rights (1950s–70s) When, following the birth in 1945 of the United Nations and the adoption of the Universal Declaration of Human Rights in 1948, human rights discourse became mainstream, the rights position of Indigenous Australians underwent significant, albeit gradual, change. In examining the attainment of equal rights by Indigenous Australians, Chesterman (2005) has discussed the way that activists drew heavily on human rights discourse in their bid to remove racial discrimination from state, territory and federal statutes in Australia. These activists examined, for instance, current federal, state and territory laws, and pointed out the myriad ways in which the laws in question appeared to contravene the non-discrimination provisions of key documents such as the Universal Declaration (Chesterman 2005, 40, 157, 159). This began to have an impact when much of the world, especially in the 1960s, began to grow ever wearier of state-endorsed racial discrimination.

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It took the federal parliament until 1962 to finally rid Australia’s electoral law of the discriminatory provisions that had, until then, prevented many Indigenous Australians in northern and western parts of the country from voting. Federal legislation in 1949 had ensured the federal vote for those Indigenous people who could vote at state level or who had military experience. But this had left Indigenous people in Queensland, Western Australia and the Northern Territory disenfranchised not only in their own state or territory, but nationally as well (unless they had been in the army, in which case they had federal voting rights). In 1961 a parliamentary committee, which was set up following continued activism and international pressure, recommended the amendment of the national electoral law, and this occurred the following year. Western Australia and the Northern Territory also enfranchised Indigenous people in 1962; Queensland delayed the move until 1965 (see Chesterman 2005, chapters 2 and 3). As a result of the Constitutional arrangements Australia had adopted at federation, the search for equal rights for Indigenous Australians had to focus as much on discrimination within the states and territories as it did on national laws. Eventually, those seeking the amendment of discriminatory laws won the day through a combination of activism and the international pressure that, by this time, was allowing little scope for countries to perpetrate outright racial discrimination. Gradually, the states and territories altered their discriminatory laws, although Queensland’s restrictive property ownership laws eventually had to be overridden in 1975 by the Whitlam government’s sponsorship of federal legislation (Chesterman 2005, 173). That overriding Commonwealth legislation was made possible by the change in Constitutional arrangements that came about in 1967. The referendum – the most successful in Australian history – saw the two Constitutional references to Aboriginal people deleted from the Constitution, thereby enabling the federal parliament to make laws for Indigenous people through the amendment of section 51 (xxvi); it also required Indigenous people to be included in official Australian population figures, which followed section 127’s deletion. The referendum, though of relatively limited legal significance, came to be seen as a symbolic moment when Australia opted to remove racial discrimination from its founding document. This occurred at a time when the Commonwealth had steadily been removing

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racial discrimination from its own statutes (see Attwood and Markus 1997; Chesterman 2005, 87–96). Australia’s Indigenous people could be said to have gained formal equality with non-indigenous Australians by the mid 1970s, when the federal Racial Discrimination Act was enacted (Chesterman 2005). The Act is Australia’s version of the United Nations’ International Convention on the Elimination of All Forms of Racial Discrimination (1966). That convention is the principal international statement about racial discrimination and it obliges countries to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation. (Article 2)

The achievement of formal equality did not, and does not, amount to the equal enjoyment of human rights, a fact that immediately quells any impulse to celebrate the removal of racial discrimination from Australia’s laws. While it now is illegal under the Racial Discrimination Act to prevent an Aboriginal person attending a hospital or school on the basis of their race, it is not illegal to provide fewer hospitals or schools in places where Aboriginal people live in significant numbers. Or, to put that another way, anti-discrimination laws place no obligation on governments to provide equal levels of service to each section of society. The laws simply state that governments and others cannot block a person’s access to an existing service on the grounds of that person’s race (see Chesterman 2005, chapter 4). For Indigenous people in remote areas, this inherent limitation in the formal equality paradigm has quite specific outcomes. The disadvantaged state of many remote Indigenous communities is often immediately apparent, yet the inability of people in such communities to access the kinds of government services that urban populations enjoy does not automatically constitute a breach of anti-discrimination laws. This remains a contentious issue to this day. One way to articulate it is to ask: What level of disparity in access to services can be permitted before one person’s rights might be said to be being breached? Or, to put it more simply: Is unequal health and wellbeing – where it does not result from

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overtly discriminatory actions – a rights issue? We will return to discuss this in the fourth section.

Era 3: Indigenous rights (1970s–90s) We have labelled the period from the 1970s to the 1990s as the Indigenous rights phase, as it was during this period that Australian governments were forced to concede that Indigenous Australians possessed rights over their land and their method of societal organisation that needed to be recognised. This is not to suggest that Indigenous people suddenly started agitating for these rights at this time. The argument has now convincingly been made (Attwood 2003; Goodall 1996) that Indigenous Australians never compartmentalised their rights claims in the way that the gradual recognition of them – first of civil or equal rights and then of Indigenous rights – might suggest that they did. In many ways the developments in this period owed much to the activism that long preceded it, stretching from the protests at Coranderrk in the late 19th century, in which the Kulin people fought ‘to hold onto their land and govern themselves’, to the strikes by Aboriginal pastoral workers in north Australia in the mid 1960s, including the Wave Hill protest by the Gurindji people, which began on the issue of equal wages but became a battle for the recognition of land rights (Attwood 2003, 6, 260–82). Indeed, the pouring of earth from the hand of Prime Minister Gough Whitlam to the hand of Gurindji elder Vincent Lingiari to symbolise the return of the land to the Gurindji in 1975 remains one of the more poignant images in the history of race relations in Australia. Nor could an account of the Indigenous rights developments in this period be complete without mention of the Aboriginal tent embassy at Parliament House in 1972, where land rights again was a central theme (Goodall 1996). As well as being a time when Indigenous rights came to be recognised as they had never previously been, this period also contained a string of symbolic governmental actions that will be briefly mentioned here. In 1988 Prime Minister Bob Hawke indicated that a treaty between Indigenous and non-Indigenous Australians might receive governmental support. Three years later the Hawke government established the Council for Aboriginal

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Reconciliation, which was headed by Indigenous leader Patrick Dodson, and was charged with promoting ‘a process of reconciliation’ that could give rise to a formal declaration (Chesterman and Galligan 1997, 218–19). Then Prime Minister Paul Keating (1992) gave his now famous Redfern speech, in which he stated the following: More I think than most Australians recognise, the plight of Aboriginal Australians affects us all. In Redfern it might be tempting to think that the reality Aboriginal Australians face is somehow contained here, and that the rest of us are insulated from it. But of course, while all the dilemmas may exist here, they are far from contained. We know the same dilemmas and more are faced all over Australia . . . We simply cannot sweep injustice aside. Even if our own conscience allowed us to, I am sure, that in due course, the world and the people of our region would not. There should be no mistake about this – our success in resolving these issues will have a significant bearing on our standing in the world . . . Isn’t it reasonable to say that if we can build a prosperous and remarkably harmonious multicultural society in Australia, surely we can find just solutions to the problems which beset the first Australians – the people to whom the most injustice has been done? And, as I say, the starting point might be to recognise that the problem starts with us non-Aboriginal Australians. It begins, I think, with the act of recognition. Recognition that it was we who did the dispossessing. We took the traditional lands and smashed the traditional way of life. We brought the disasters. The alcohol. We committed the murders. We took the children from their mothers. We practised discrimination and exclusion. It was our ignorance and our prejudice. And our failure to imagine these things being done to us. With some noble exceptions, we failed to make the most basic human response and enter into their hearts and minds. We failed to ask – how would I feel if this were done to me?

This period also witnessed two significant inquiries into Indigenous disadvantage. One was the Royal Commission into Aboriginal Deaths in Custody, which examined the far higher rates of incarceration deaths of Indigenous than non-Indigenous people. The commission (Johnston 1991, 69–146)

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made 339 recommendations, ranging from the specific, such as that all prison cells be fitted with intercoms, to the general, such as that health services for Aboriginal people be provided in more culturally sensitive ways. The other inquiry, which became known as the ‘Stolen Generations’ inquiry, was initiated in 1995 and reported ‘that between one in three and one in ten Indigenous children were forcibly removed from their families and communities in the period from approximately 1910 until 1970’. The removal of children happened in a variety of ways, involving various degrees of coercion and duress. The most vehement criticism of this report involved its labelling of child removal as ‘genocidal’(National Inquiry 1997, ix, 37, 275). The definition of genocide contained in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1951) states (Article 2 (e)) that ‘genocide’ includes the removal of children, where that is done ‘with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. Critics of the report disputed that the child removal practices or indeed the overarching policy of assimilation, which sought the incorporation of Indigenous Australians into mainstream society, could be defined as genocidal (see, for example, Brunton 1998a and 1998b, 10–16). At the back of this debate is the belief in the minds of some that the term ‘genocide’ is now irrevocably connected to the Holocaust, and that any modern-day use of the term requires the level of malevolent intent that was manifested when six million mainly Jewish people were murdered during the Second World War. Our labelling of this period as the Indigenous rights phase stems from the fact that distinct Indigenous rights came to be recognised as never before. In particular, the native title rights of Indigenous people and Indigenous people’s right to self-determination were the focus of a number of significant developments that are detailed here. Native title Federal, state and territory governments moved in the 1970s to allow Indigenous people increasing access to, and in some cases ownership of, their traditional lands. The most significant of these initiatives came in the wake of the Woodward inquiry, which the Whitlam government had established to examine the feasibility of granting land rights in the Northern Territory. The ultimate statute to which that report gave rise – the Aboriginal Land Rights (Northern Territory) Act 1976 – was actually passed with the Fraser

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government’s support after the dismissal of the Whitlam government: the Act saw large tracts of land immediately returned to Aboriginal people and also enabled Aboriginal people in the Northern Territory to claim Crown land upon proving a historic attachment to it (Chesterman and Galligan 1997, 200–01). Statutory recognition of land rights, however, was different to recognition of the pre-existing native title of Indigenous peoples, and native title claims had until 1992 been unsuccessful in Australia. The most prominent of these pre-Mabo claims occurred in the Milirrpum v Nabalco case, when the Northern Territory Supreme Court ruled in 1971 that native title was not part of the law in Australia. In the Mabo decision of June 1992 the High Court finally recognised that native title constituted a pre-existing property right that could continue to be recognised in certain circumstances. Principally, that meant that the Indigenous claimants needed to show that their ancestors had lived on the same lands, and that they maintained a traditional attachment to that land that had not been overridden or extinguished by inconsistent governmental activities. For the Indigenous claimants in the case, it meant that they could continue to use the lands in question, on the Murray Islands in Torres Strait, in the ways that their ancestors had done. In reaching its decision, the High Court drew on international law developments. Brennan J (Mabo 1992, par. 42) was forthright in his opinion of the relationship between the common law and international human rights law: The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.

In making its determination in Mabo the High Court did not, as is popularly thought, overturn a legal doctrine that considered Australia a terra nullius, or land belonging to no one (this is because terra nullius did not constitute the legal basis for Indigenous dispossession; see Connor 2005). But the

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decision did for the first time recognise that Indigenous Australians held rights to the land at the time of European settlement, and therein lies the decision’s symbolic significance. Following that decision the Keating Labor government took the lead in sponsoring native title legislation, whereby claims for native title could be made through a tribunal rather than having to be litigated. After extensive negotiation by the Keating government with a range of Indigenous leaders (Rowse 1994), the Native Title Act 1993 was passed and the National Native Title Tribunal was established. The Act did not seek to codify native title, but merely regulated the manner in which it could be claimed. At the same time, the Act addressed one problem that arose in the wake of the Mabo decision. Any extinguishment of native title after 1975 – when the Racial Discrimination Act was enacted – possibly constituted a breach of the Racial Discrimination Act, even though that could not have been known at the time. One of the purposes of the Native Title Act was to validate such activities. This was a concession Indigenous leaders were prepared to make in 1993, in the expectation that the legislation would enable Indigenous claimants more easily to have their title recognised than would otherwise be the case. As will be shown later, future amendments to the native title legislation were not the product of such compromise. Another question arose concerning the Native Title Act’s consistency with the non-discrimination principle that is embodied in the Racial Discrimination Act. In gearing itself only to the protection of rights belonging to a racial minority, the Act itself could technically be seen to be racially discriminatory. One way to avoid such a conclusion was to argue that the Native Title Act was an instance of differential treatment, a concept recognised in international jurisprudence, which permits different groups to be treated differently where it is not invidious to do so. Another way to avoid such a conclusion was to argue that the Act was a special measure that instanced positive racial discrimination in a bid to ameliorate the position of an oppressed racial minority. The Native Title Act, in its preamble, presented itself as a special measure and as a form of differential treatment, though scholars (for example Nettheim 1998, 200–01) have argued that the characterisation of native title as a special measure is inadequate, since most special measures, such as quotas for entry into jobs, are supposed to be in place only for a limited time as

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transitional measures. As native title recognition requires a community’s observance of a traditional relationship with the land, few would say that native title could ever fairly be described as a transitional right. The Mabo decision constituted a symbolic challenge to prevailing stories of Australian settlement. A further challenge came in 1996, when the High Court ruled in the Wik case that native title was not necessarily extinguished by the existence of a pastoral lease. Here, for the first time, the High Court found that the granting of a pastoral lease, which enabled stock to be run on vast tracts of land, was not inconsistent with the enjoyment of native title rights to the extent that the granting of one should necessarily extinguish all native title on the same land. As will be discussed in the anti-rights section shortly, the Howard government, in one of its first actions in the anti-rights phase, reacted very strongly to this decision. Self-determination The right to self-determination is a right that is regularly expressed in key international law treaties. In the International Covenant on Civil and Political Rights (Article 1), for instance, everyone is said to have ‘the right of self-determination’, meaning they are free to ‘determine their political status’ and ‘their economic, social and cultural development’. The precise meaning of self-determination for a domestic minority group such as Indigenous Australians has never been clear. To what level of independence should it give rise? While different Indigenous people and Indigenous groups have sought different levels of independence from the Australian state, the standard claim of Indigenous groups has been for them to determine the public policies that are germane to their community, and for Indigenous people to deliver those services (see, for instance, Australia Institute 2000; Rowse 2002, 181). As academic Tim Rowse has pointed out (2002, 181), one key way in which the principle of self-determination came to receive government support was through the enactment of the Aboriginal Councils and Associations Act 1976, which has enabled enormous numbers of local groups to take on legal identities (which often sees them resemble local governments) while also adopting more traditional forms of collective decision-making processes. More symbolic self-determination activities resulted in the Uluru Kata Tjuta National Park, the site of what were formerly known as Ayers

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Rock and The Olgas, being returned in 1985 to their traditional owners (Central Land Council 2007). One element of self-determination that has received very limited government support is the recognition of traditional Indigenous, or customary, law. While a significant 1986 Australian Law Reform Commission (ALRC) report called for greater recognition of customary law, this has generally only happened in isolated cases where, typically, an Indigenous customary law punishment (such as a spearing in the leg) has been taken into account in sentencing an Indigenous offender for committing a crime against another Indigenous person (ALRC 1986, Chesterman 2005, 226–7). Perhaps the clearest show of government support for the principle of self-determination came with the establishment of the Aboriginal and Torres Strait Islander Commission (ATSIC) in 1990. ATSIC was a national Indigenous-controlled organisation whose hierarchy was elected by Indigenous people, and the organisation saw Indigenous leaders playing a key role in determining the best ways to address the disadvantage confronting Indigenous communities. Most of ATSIC’s funding was spent on the broad area of economic development, which included funding the popular Community Development Employment Projects, under which unemployment benefits were surrendered by Indigenous workers who were then employed to work on local community initiatives. ATSIC also ran large infrastructure and housing programs and played a key role in cultural heritage development work (Senate Select Committee 2005, 13). As we shall detail later, the ATSIC experiment was ultimately deemed to be a failed one by both of the major Australian political parties. Into that failure one may also read the decline of Australia’s support for the principle of self-determination, at least so far as that principle required the establishment of a peak national Indigenous organisation.

Era 4: Anti-rights (from 1996) In some ways the beginning of the anti-rights era concerning the position of Indigenous Australians had its origins in a letter written to a newspaper in Ipswich in Queensland. The writer was Pauline Hanson, the Liberal Party candidate for the 1996 federal election in a safe Labor seat, who argued that Australia condoned a form of racism by giving Aboriginal people ‘money,

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facilities and opportunities that only these people can obtain’ (Manne 1998, 3). Hanson was quickly disendorsed of the Liberal candidacy, whereupon she won the seat as an Independent. On entering parliament Hanson made her maiden speech, and as the following edited quotation shows (Parliamentary Debates Representatives 10 September 1996, 3860–1), she covered a variety of policy areas that would come to characterise the anti-rights era: I am fed up to the back teeth with the inequalities that are being promoted by the government and paid for by the taxpayer under the assumption that Aboriginals are the most disadvantaged people in Australia . . . This nation is being divided into black and white, and the present system encourages this. I am fed up with being told, ‘This is our land.’ Well, where the hell do I go? . . . The majority of Aboriginals do not want handouts because they realise that welfare is killing them . . . Reconciliation is everyone recognising and treating each other as equals, and everyone must be responsible for their own actions. This is why I am calling for ATSIC to be abolished.

Hanson’s One Nation party never threatened to attract majority support, although at its highpoint, in the 1998 Queensland state election, One Nation polled 23 per cent of the first-preference vote (Australian Government and Politics Database 2007). But One Nation did provide a challenge to both major parties. Some commentators blamed Hanson’s rise on the gap between the ‘cultural elite’ and ‘ordinary’ Australians that had flourished under Keating. Tony Abbott, for instance, who would become Health Minister in the Howard government, argued in 1998 (18) that ‘Much of the Hanson groundswell is a delayed reaction against the “self-appointed cultural dieticians” (as the prime minister describes them) of the Keating years’. Others, such as journalist Michelle Grattan (1998), criticised then Prime Minister Howard for failing to denounce Hanson and her views quickly enough (see Hill 1998). Regardless of the cause of her rise, several of Hanson’s seemingly extreme views came to be supported and adopted as government policy over the ensuing decade. The adoption of these policies played no small part in

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ensuring her own political demise, since support for these policies no longer necessitated electoral support for One Nation. But the adoption of the policies also ensured Hanson a political legacy. Hanson’s hostility to the recognition of native title and, indeed, to the recognition of any Indigenous-specific rights was shared to a large degree by key players in the Howard government. Nowhere was this better demonstrated than in debates concerning reconciliation at the turn of the 21st century. In one of its final actions, the Council for Aboriginal Reconciliation drew up an Australian Declaration Towards Reconciliation, in which the following statement appeared: ‘We desire a future where all Australians enjoy their rights’. The Howard government rejected this document, but suggested amendments to it that it said it would support. One of those amendments changed the quoted phrase to read: ‘We desire a future where all Australians enjoy equal rights’ (Chesterman 2005, 219; our emphases). Thus even the suggestion of group-specific rights, or separate rights for separate groups of people, was quickly attacked in a very symbolic way. This opposition to Indigenous rights manifested itself in seven clear policy interventions of the Howard government (and only two of these interventions have to date been explicitly rejected by the Rudd government since its election in 2007): r its response to the Wik decision and subsequent sponsorship of amend-

ments to the native title legislation

r its hostile response to the ‘Stolen Generations’ inquiry r its opposition to the treaty process r its abolition of ATSIC without providing for a genuine (elected) replace-

ment body

r its introduction of a new shared responsibility welfare paradigm r its decision in 2007 to apply a range of restrictive measures to Indigenous

communities in the course of its Northern Territory ‘intervention’

r its opposition to the adoption of the United Nation’s Declaration on the

Rights of Indigenous Peoples. All of these policy positions could be said to have been underwritten by the Howard government’s stated desire for practical reconciliation, which was articulated in the following way by Prime Minister Howard in 1997

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(Parliamentary Debates Representatives 27 May 1997, 4111): ‘we believe that the essence of reconciliation lies not in symbolic gestures . . . but in a practical determination to address the areas of disadvantage that Indigenous people suffer’. This meant addressing ‘areas of disadvantage in issues such as health, housing, employment and education’. Elsewhere the prime minister argued that Reconciliation will not work if it puts a higher value on symbolic gestures and overblown promises rather than the practical needs of Aboriginal and Torres Strait Islander people in areas like health, housing, education and employment. (Howard 1997)

Such a view tapped into larger undercurrents pervading the cultural sphere in Australia, in which the so-called history wars (Macintyre and Clark 2003) were witnessing a battle between pro-Indigenous historians, such as Henry Reynolds, and their critics, principally Keith Windschuttle (2002; see also Connor 2005), wherein historians have been accused of overstating and even fabricating the historical record. This has led, according to the criticism, to the erroneous and emotional depiction of race relations as primarily a story about the historic and ongoing injustices that have been suffered by Indigenous Australians. At the same time other writers, such as Helen Hughes (2007), have criticised those academics and policy makers who have apparently seen the greater recognition of Aboriginal difference as the key to the amelioration of Indigenous disadvantage. Thus the anti-rights era has been characterised by a shift away from symbols and talk about rights and historical injustices, towards a concentration on the practicalities of providing individuals with access to jobs, good health, education and housing, regardless of their race. Moreover, the anti-rights era has been characterised by the notion that a preoccupation with rights will detract from these more pressing practical needs. The message has been that one can’t promote both rights and practical improvement. It is important to note here, before a more detailed discussion about these policy responses, that opposition to rights talk has not just been championed by conservative voices. An unlikely ally for this position has been found in Noel Pearson, arguably the leading Indigenous intellectual ever produced by Australia. In 2000, in a publication entitled Our Right to Take

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Responsibility, Pearson articulated his thesis that one of the main challenges confronting Indigenous Australians was the receipt of ‘passive welfare’. He wrote: After we became citizens with equal rights and equal pay, we lost our place in the real economy. What is the exception among white fellas – almost complete dependence on cash handouts from the government – is the rule for us. There is no responsibility and reciprocity built into our present artificial economy, which is based on passive welfare (money for nothing). (2000, 5)

Elsewhere Pearson has discussed in the following way the removal of liquor bans and the equal wages decisions that led to Aboriginal unemployment in the pastoral industry (Chesterman 2005, 258–9): ‘many elements of the abolition of formal discrimination and the liberal-progressive advancement program have inadvertently been major causes of Aboriginal disadvantage’. In articulating this view, Pearson criticised the romanticism that he saw accompanying rights discussions. Pearson’s critique hit solidly at the left-liberal view that saw rights advances as uniformly positive developments. This left-liberal view, most closely identified since the 1960s with the Australian Labor Party, had prided itself on its opposition to the paternalistic view that Indigenous people were not ready to have equal access to alcohol and that Australia was not ready for Indigenous people in pastoral jobs to receive the same rates of pay as non-Indigenous workers. Pearson, in years past, had been highly critical of the Howard government, and had played a key role in negotiating with the Keating government over the original native title legislation that was enacted in 1993. But his arguments about the need for increased Indigenous responsibility were praised by the Howard government, one example of which being when Health Minister Tony Abbott, in discussing Indigenous health funding, said: ‘We have tried not just to spend the money; we have tried to remember Noel Pearson’s admonition that Aboriginal people have the right to take responsibility for their own communities and their own advancement’ (Parliamentary Debates Representatives 6 December 2005, 10). Abbott is also on record as saying that ‘Noel Pearson is providing great leadership, not just to the Indigenous people of Australia but to the wider Australian community’(Parliamentary Debates Representatives 13 September 2005, 10).

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Pearson’s views struck a chord with those of the Howard government, whose social welfare policy generally promoted the idea that the receipt of government benefits was not simply a right but a conditional privilege that relied on the individual and the government meeting a mutual obligation to one another. Pearson’s argument also struck a chord with Pauline Hanson’s comments quoted earlier that most ‘Aboriginals do not want handouts because they realise that welfare is killing them’. Moreover, in distancing himself from left-liberal romanticism concerning the removal of racial discrimination from social welfare policies and laws, Pearson could be drawn upon as an ally in the search for less symbolic, more practical, attempts to reconcile the disparities separating Indigenous and non-Indigenous Australians. But before one can draw Pearson in as a proponent of the anti-rights paradigm, it is important to recognise that Pearson’s focus has been on welfare policies and that he has not rejected the search for larger symbols. Nor has he rejected a respect for human rights and the principle of non-discrimination. At the same time as outlining his arguments concerning passive welfare, Pearson also wrote (2000, 99): Our struggle for our rights is far from over. Nothing I propose in this paper casts any doubt on the correctness of our struggle for rights – including our unique position as the original people of this country. We must continue to be fully vigorous in our advocacy of our rights – and our fight against discrimination. But the Aboriginal struggle has to wake up to the fact that our belated citizenship . . . gave us two things. Firstly it gave us land rights and increasing recognition of our human rights – and this has been a good thing. Secondly, it gave us passive welfare as an economy – and this has been disastrous.

The next section details the ways in which anti-rights talk has manifested itself in a range of policy interventions and developments. The response to Wik and the winding back of native title One of the key ways in which the Howard government sought to implement its anti-rights agenda was to ensure that the development of native title, which had steadily evolved through the Mabo and Wik cases and the operations of the National Native Title Tribunal, would be halted. This occurred initially through an attack on the institution that had delivered the key

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judgements – the High Court – and then through the passage of legislation that limited the rights of native title holders. Following the December 1996 Wik decision, which enlarged the possibility of native title claims being successfully made on mainland Australia, the government was quick to criticise the High Court for taking its rule-making powers too far. The most strident criticism came from Deputy Prime Minister Tim Fischer, who announced that the government was seeking ‘bucketfuls of extinguishment’ of native title (Brennan 1998, 57). He went further, breaking with convention by announcing that an upcoming vacancy on the High Court should be filled by a conservative. He commented that ‘I’m attracted to the thought that [the High Court replacement] would be a capital C Conservative lawyer/judge’ (Savva 1997). As the Wik decision was decided by a four–three majority, any appointment to the High Court carried the possibility of considerable significance for native title law. Thereafter, a string of conservative appointments was made to the High Court, among them, Justice Callinan, appointed in early 1998, who subscribed to the view that only the most traditional Indigenous groups could have their native title claims recognised. In one native title case, Yanner v Eaton (1999), Callinan criticised the magistrate, who had determined that the applicant had pursued a traditional practice in hunting crocodiles. This finding was made, according to Callinan (par. 132), ‘despite the fact that the appellant used a modern boat with an outboard motor and a steel tomahawk to administer the coup de grˆace to the crocodiles’. The criticism of the High Court was not the only response to the Wik finding. Legislation was drawn up by the government to amend the Native Title Act and provide the ‘bucketfuls of extinguishment’ sought by the deputy prime minister. In his own words, Prime Minister Howard (Parliamentary Debates Representatives 27 May 1997, 4113) was of the view ‘that the pendulum had swung too far and that it was necessary in the wake of the Wik decision to make a number of changes’. Those proposed changes, which were known as the government’s ‘ten point plan’, were put into legislative form, though they ultimately needed to be altered slightly in order to ensure their passage through the Senate, where the government did not hold a majority. Such were the numbers that the government needed to convince long-term Tasmanian Independent Brian Harradine to support the changes to the Native Title Act. Harradine feared the potential damage that could be done to the nation were the legislation to fail, since the issue of native

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title would then in all likelihood become an election issue in 1998. As he put it, he blinked in his attempt to stare down the prime minister, and the legislation passed (see Brennan 1998, chapter 8). In finding that native title could coexist with a pastoral lease, the High Court also stated that the rights enunciated in pastoral leases would take precedence over native title rights. Pastoral lessees, however, had long thought that they had the freedom to do other farming activities, even though these may not have been specifically mentioned on the lease. It was these activities that were placed in jeopardy by the Wik decision. One of the effects of the Native Title Amendment Act 1998 was the expansion of the definition of ‘primary production’ activities, which sought to restore the pre-Wik freedoms to pastoralists. Another change raised the threshold needed before a native title claim could be registered, a stage that then enabled Indigenous groups to negotiate proposed developments to the land in question (Brennan 1998). One of the grounds on which the government was criticised for its amending legislation, as will be seen shortly, was on the basis that the legislation amounted to an act of racial discrimination against Indigenous people. It is true that the original native title legislation in 1993 itself discriminated against Indigenous people, since it allowed for the validation of grants of land made after 1975 on native title lands. Such grants may unknowingly have been made in breach of the Racial Discrimination Act, and thus their validation involved suspending the Racial Discrimination Act in relation to them. But the difference between the 1993 and 1998 legislation was that the 1993 legislation was the result of a negotiated agreement with Indigenous Australians, who accepted the need for some validation of uncertain grants of land. The 1998 legislation was the result of entirely different political manoeuvres (see Chesterman 2005, 236–7). This was certainly the view of the United Nations Committee on the Elimination of Racial Discrimination, whose role is to oversee the workings of the International Convention on the Elimination of All Forms of Racial Discrimination. According to the committee (1999; see also Chesterman 2005, 101–2, 238): [T]he Committee recognized that within the broad range of discriminatory practices that had long been directed against Australia’s Aboriginal and Torres Strait Islander peoples, the effects of Australia’s racially discriminatory land practices had endured as an acute impairment of the rights of Australia’s

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Indigenous communities. It also recognized that the land rights of Indigenous peoples were unique and encompassed a traditional and cultural identification of the Indigenous peoples with their land that had been generally recognized. The Committee expressed concern over the compatibility of the Native Title Act, as currently amended, with Australia’s international obligations under the Convention. While the original Native Title Act recognized and sought to protect Indigenous title, provisions that extinguished or impaired the exercise of Indigenous title rights and interests pervaded the amended Act.

These concerns went unheeded. At the same time that the Howard government was resetting the political debate about native title, the evolving native title jurisprudence was revealing that native title was harder to establish than many had imagined it would be. The symbolic victory in the Mabo case was not translating into widespread recognition of native title claims. This evolving jurisprudence saw native title extend to the sea to include fishing rights (Commonwealth v Yarmirr 2001), and in 2002 the High Court found (Western Australia v Ward) that native title could coexist with a mining lease. But this jurisprudence was also showing that the existence of native title was difficult to prove and required, in addition to a continuing link to the land, a significant degree of traditionalism within the claiming community. In other words, native title was proving very hard to establish where the Indigenous claimants led lives of significant interaction with non-Indigenous people, and where their lifestyles and cultural practices deviated to any significant degree from those of their forebears. The test case to establish whether native title might continue to vest in a community that had a significant history of interaction with nonIndigenous Australians came in the Yorta Yorta decision. That claim, which sought the recognition of native title in parts of New South Wales and Victoria, failed, with the trial judge finding (Yorta Yorta v Victoria 1998, pars 126, 129) that There is overwhelming evidence that Aboriginals and non-Aboriginals alike enter, travel through, live, fish and hunt within the claim area without seeking permission other than such as may be required by State or Commonwealth

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law. The tide of history has undoubtedly washed away any traditional rights that the Indigenous people may have previously exercised in relation to controlling access to their land within the claim area . . . The facts in this case lead inevitably to the conclusion that before the end of the 19th century the ancestors through whom the claimants claim title had ceased to occupy their traditional lands in accordance with their traditional laws and customs. The tide of history has indeed washed away any real acknowledgment of their traditional laws and any real observance of their traditional customs.

This decision was appealed unsuccessfully to the High Court in 2002. By June 2008, 16 years after the Mabo decision, only 75 findings confirming the existence of native title had been made, and the vast majority of them involved the consent of all parties or were unopposed claims. It has been relatively rare for native title to be found to exist where others with proprietary interests in the same land have objected (National Native Title Tribunal 2008). Apology to the Stolen Generations The response of the Howard government to the HREOC Stolen Generations report (National Inquiry 1997) was to refuse to compensate, or even to apologise to, the Indigenous children who were removed from their parents. While motions of regret were passed in state and territory parliaments (Dow 2008), and Tasmania even went on to establish a compensation scheme for removed Indigenous children (Gibson 2008), the Howard government refused to do likewise. Addressing a reconciliation convention in 1997 Prime Minister Howard argued (Howard 1997; see also Dow 2008): Personally, I feel deep sorrow for those of my fellow Australians who suffered injustices under the practices of past generations towards Indigenous people . . . [but] . . . Australians of this generation should not be required to accept guilt and blame for past actions and policies over which they had no control.

In addition to Prime Minister Howard’s steadfast refusal to apologise for the actions of his forebears, momentum for a significant political response to

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the Stolen Generations report was undercut by two developments. The first of these was the failure of significant test cases (especially the Cubillo and Kruger decisions; see also Attwood 2001, 207), in which Indigenous people who had been removed from their parents failed in their suits against the Commonwealth (the claimants alleged a breach of the Commonwealth’s duty of care). Success there would have forced the Commonwealth to discuss reparations. The second was the sustained criticism of the research behind the Stolen Generations report (see Brunton 1998b, 3 and passim; Attwood 2001, 208–9) that effectively gave the government the ability to deflect any criticism it might otherwise have received for failing to accept the report’s central findings. Aboriginal and Torres Strait Islander Affairs Minister John Herron, in one low point of debate, presented a submission that alleged that ‘there never was a generation of stolen children’ (quoted in Dow 2008; see also Attwood 2001, 207). While some of the HREOC recommendations were implemented by the Howard government, the more symbolic possibilities were ignored. In particular, the Howard government refused to apologise to, or countenance the paying of reparations to, removed children, both of which measures the report had recommended (Dow 2008). In 2007, towards the end of the Howard government’s term in office, the South Australian Supreme Court did award one man over half a million dollars (plus interest) on the basis that he had been wrongly removed from his family (Trevorrow v South Australia; Debelle and Chandler 2007). But this did not lead to a flood of litigation, largely because it remains difficult to prove that a particular removal was racially motivated and not the result of child neglect. Nor did it lead to a review of Commonwealth policy. Indeed, the failure of the Howard government to adequately address ‘the harm inflicted by the forced removal of Indigenous children’ (Committee on the Elimination of Racial Discrimination 2005, 6) remained a constant criticism of the Howard government until its removal from office. At a broad level, the Howard government’s response to the Stolen Generations report ensured that the reconciliation movement, which began with the strong support of the Keating government, would cease to have any meaningful governmental support. But it is worth noting that the government retreat from symbolism was not entirely matched by a public retreat. When 250 000 people walked across the Sydney Harbour Bridge during the May 2000 Reconciliation Week (City of Sydney 2007), when the public

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signed sorry books or attended sea of hands gatherings, they were attempting to breathe life into the reconciliation movement. One of the first actions of the Rudd government upon its election in 2007 was to extend to the Stolen Generations the apology the Howard government had so steadfastly refused to make. Rudd’s words (Parliamentary Debates Representatives 13 February 2008, 167) were poetic and profound: We apologise for the laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians. We apologise especially for the removal of Aboriginal and Torres Strait Islander children from their families, their communities and their country. For the pain, suffering and hurt of these Stolen Generations, their descendants and for their families left behind, we say sorry. To the mothers and the fathers, the brothers and the sisters, for the breaking up of families and communities, we say sorry. And for the indignity and degradation thus inflicted on a proud people and a proud culture, we say sorry.

But the Rudd government’s refusal to countenance the payment of reparations or compensation to members of the Stolen Generations (Grattan and Wright 2008) showed that while the new government would be more mindful of the importance of symbolism than its predecessor, it would not be demonstrably more rights conscious. Treaty Not surprisingly, another characteristic of the anti-rights phase has been the refusal of recent Australian governments to countenance the negotiation of a treaty between Indigenous and non-indigenous Australians. John Howard himself had long been opposed to the signing of a treaty. In 1988 (6), he wrote that the Coalition aimed to ‘bring Aboriginal people into the mainstream of Australian society and give them equal opportunity to share fully in a common future with all other Australians.’ The coalition then was ‘utterly opposed to the idea of an Aboriginal treaty, partly because it will do nothing to assist in these aims’. In government the Coalition refused to support any development of this idea, and there has been no suggestion that the Rudd government will

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revive it, despite being encouraged to do so at the 2020 summit in April 2008 (Gartrell 2008a). The organisation that pushed hardest in the 21st century for negotiation of a treaty was ATSIC, but the support of the ALP and the Coalition parties for a treaty matched their support for ATSIC, which itself was a casualty of the anti-rights era. Abolition of ATSIC The Aboriginal and Torres Strait Islander Commission had, since 1990, existed as Australia’s unique contribution to the debate on how a minority Indigenous population might exercise some degree of self-determination without seeking to exist as an independent nation outside the parameters of an existing nation state. By electing councillors, who were then represented on the national body by elected commissioners, ATSIC in theory existed as a representative national voice for Indigenous Australia. By deciding on the allocation of resources to Indigenous communities, ATSIC in theory could be the embodiment of self-determination, enabling elected Indigenous people to decide how money would be spent to support Indigenous communities. But ATSIC was beset by problems that frustrated its ability to live up to this ideal. On the electoral side, ATSIC’s voter turnout was notoriously low, even though arguments were made that this was to be expected when voting was voluntary (see Sanders 2004). Recent years also saw the rise in debate, most notably in Tasmania, about the eligibility criteria for voting in ATSIC elections (see Sanders 2003). A more structural difficulty that ATSIC confronted was the challenge of being both the peak Indigenous advocate while at the same time being responsible for the delivery of key services. In its advocacy role, ATSIC was often at the forefront of debate on the poor health and social welfare status of Indigenous people, yet, in its role as service provider, ATSIC was at the same time itself often criticised for failing adequately to address Indigenous disadvantage throughout the country. It is fair to say that this internal contradiction ended up being as responsible for ATSIC’s demise as any of the more immediate factors. ATSIC was stripped of its health responsibilities in 1995 (Tickner 2001, 299–300; Rowse 2002, 221) and ultimately lost control of other key service provision responsibilities before being abolished when both the Liberal and Labor parties agreed to its dismantlement in 2004. The ALP announced the decision first,

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in the lead-up to the 2004 federal election, in a move that was echoed shortly after by the government (Grattan 2004). A number of immediate, as opposed to structural factors, did, however, contribute to speed up ATSIC’s demise. Under the leadership of its last chairman, Geoff Clark, ATSIC had been doggedly pursuing a rights agenda, with considerable ATSIC resources devoted to symbolic policy issues such as the quest for a treaty between Indigenous and non-Indigenous Australians. A series of financial crises and allegations of conflicts of interest also beset the organisation, often generating a disproportionate level of media interest. Furthermore, Clark himself became a liability for ATSIC when he was charged with rape over an incident that had occurred several decades earlier. While he was ultimately acquitted of the criminal charge, he was successfully sued over the incident in a civil claim and was, in 2007, ordered to pay damages (Kissane et al. 2007). The Howard government’s official stance (Australian Government 2006a, 2) on the reasons for ATSIC’s demise was as follows: An Independent Review of ATSIC . . . found that ATSIC had lost touch with the concerns of Indigenous people and no longer had the confidence of the Indigenous community. ATSIC was an elected body. However . . . its election arrangements created internal tensions, and apparent conflicts of interests eroded public confidence in its funding decisions. Only one in five Indigenous Australians eligible to vote in ATSIC elections did so.

Despite its problems, ATSIC represented Australia’s unique attempt to enable self-determination to coalesce with mainstream government, and its abolition – with no provision made for an elected replacement organisation – raised concerns about the future of Indigenous self-determination in Australia. The Committee on the Elimination of Racial Discrimination (2005, 2–3) expressed concern that the establishment of a board of appointed experts to advise the Government on Indigenous peoples’ issues, as well as the transfer of most programmes previously provided by the ATSIC and the Aboriginal and Torres Strait Islander Service to government departments, will reduce the participation of Indigenous peoples in decision-making . . .

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The committee sought the reconsideration of the decision to withdraw ‘existing guarantees for the effective representative participation of Indigenous peoples . . . in decision- and policy-making relating to their rights and interests’, and urged Australia to ‘take decisions directly relating to the rights and interests of Indigenous peoples with their informed consent’. The Australian government’s argument (2006a, 5) about informed consent could not have been clearer: ‘The Australian Government does not consider that Australia has an international obligation to obtain the “informed consent” of a particular group in order to exercise executive or legislative power’. This is a clear rejection of the argument that Indigenous Australians have claims to Indigenous-specific governance arrangements. In place of ATSIC, the Howard government established the appointed National Indigenous Council (Australian Government 2006a, 3) to give policy advice. It remains unclear whether the Rudd government will move from this advice model to re-establish an elected Indigenous representative organisation, though the ALP’s 2004 agreement about the need to abolish ATSIC does not suggest this is a policy priority. The new shared responsibility welfare paradigm In addition to abolishing ATSIC, the Howard government also set about establishing the mechanisms by which it could negotiate specific agreements with individual communities over resource allocation. This allowed the government to set particular threshold requirements, which could differ among communities, before agreeing to the expenditure of government funds. After the abolition of ATSIC, the mechanisms by which this happened involved the establishment of 30 Indigenous Coordination Centres, which sought ‘to coordinate service delivery to Indigenous Australians’, and the establishment of Regional Partnership Agreements (RPAs) and Shared Responsibility Agreements (SRAs) (Australian Government 2006a, 2–4). RPAs and SRAs are part of a shared responsibility compact in which government services and funds are provided only if the community in question meets certain specified and agreed-upon objectives. To be sure, the mutual responsibility principle that underwrote these developments became a familiar feature of welfare policy more generally under the Howard government. RPAs tend to be broad, overarching understandings (see, for example, Australian Government 2005a, 2006b) that enable the articulation of the

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broad priorities and objectives of the various parties and that, typically, involve local communities, up to three levels of government and even local industries (Australian Government 2007). The more specific SRAs are described (Australian Government 2007) in the following way: ‘In return for discretionary benefits from government, communities make some specific commitments in order to achieve their identified goals’. The SRA that created the most controversy was the March 2005 agreement with the Mulan community in Western Australia. According to the terms of the agreement (Australian Government 2005b), the Australian government agreed to provide $216 588 to cover the installation of petrol bowsers within the community on the proviso, among other things, that members of the Mulan community would ‘start and keep up a program to make sure kids shower every day and wash their face twice a day’. More recently, a welfare agreement was signed in May 2007 by the Australian government and Noel Pearson’s Hope Vale community, according to which funds are provided if residents meet specific criteria. Described by Indigenous Affairs Minister Mal Brough (2007) as ‘part of the Hope Vale community’s own desire to end the era of passive welfare in their town’, the agreement sparked debate between current and former associates of Pearson in Hope Vale. Rachelle McIvor (Skelton 2007a) criticised the agreement, which she noted ‘provides for daily house inspections, they will look to see if the washing up has been done, if the kids are at school and if the babies’ noses have been wiped’. Tania Major, meanwhile, who made headline news years earlier when she told Prime Minister Howard that she had been the only student in her year to complete secondary school, and was alone among girls in her year by not being a mother in her teens, praised the agreement on the basis that ‘people are being asked to own the outcome of their behaviour and decisions’ (Skelton 2007b). The Northern Territory intervention A dramatic development within the Howard government’s new welfare program came about in August 2007 when the government introduced legislation that enabled the Commonwealth to exercise a new level of control over some Northern Territory Aboriginal communities by placing conditions on welfare payments and restricting access to pornography and alcohol. The suite of new laws was defended as an appropriate response to allegations that

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child abuse was rife in remote Aboriginal communities. These allegations were most prominently articulated in the Little Children Are Sacred report (Northern Territory Board of Inquiry into the Protection of Aboriginal Children 2007). Indigenous Affairs Minister Mal Brough argued in parliament (Parliamentary Debates Representatives 7 August 2007, 10) that With clear evidence that the Northern Territory government was not able to protect these children adequately, the Howard government decided that it was now time to intervene and declare an emergency situation and use the territories power available under the Constitution to make laws for the Northern Territory. We are providing extra police. We will stem the flow of alcohol, drugs and pornography, assess the health situation of children, engage local people in improving living conditions, and offer more employment opportunities and activities for young people. We aim to limit the amount of cash available for alcohol, drugs and gambling during the emergency period and make a strong link between welfare payments and school attendance.

While the allegations of child abuse, and the response of the Howard government, made front-page news, little public commentary accompanied the fact that the new laws suspended the operation of one of Australia’s key pieces of human rights legislation, the Racial Discrimination Act. The Northern Territory National Emergency Response Act 2007 (section 132) and the Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (section 4), for instance, explicitly suspend the operation of the key part of the Racial Discrimination Act (see Aboriginal and Torres Strait Islander Social Justice Commissioner 2007, 215–19). While in opposition the ALP supported these measures, though it did unsuccessfully attempt to finesse their consistency with the Racial Discrimination Act by simply rendering them ‘special measures’ (Parliamentary Debates Representatives 7 August 2007, 71–2, 119). But the characterisation of the intervention as a ‘special measure’ was always going to be dubious. (In the end the sections mentioned above, as well as suspending the Racial Discrimination Act, also portrayed each new law as ‘special measures’ under the Racial Discrimination Act.) Special measures are positive discrimination measures, such as the use of affirmative action quotas, that are used to

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redress past race-based inequalities. The application of the positive discrimination exception to the general prohibition on racial discrimination was inappropriate here, since no one could fairly suggest that the intervention gave some kind of benefit or assistance to Indigenous people that nonIndigenous people were not entitled to receive (see Aboriginal and Torres Strait Islander Social Justice Commissioner 2007, 259–65). The intervention clearly sought to attack entrenched child abuse problems that were being shielded to some extent from public scrutiny by existing power arrangements within some Indigenous communities. But the Racial Discrimination Act did not need to be suspended in order for these remote communities to experience the same level of policing and child protection checks as are the norm in urban non-Indigenous society. To criticise the suspension of the Racial Discrimination Act is not to criticise the attempt to provide equal child protection for Indigenous children. Indeed, that is the point. Equal child protection practices are entirely consistent with the principles behind the Act, though the Act’s suspension would suggest they are not. In government, the ALP has continued with the Northern Territory intervention and negotiated with Western Australia about adopting similar strategies. The ongoing inconsistency of the supporting legislation with the Racial Discrimination Act continues to generate little public debate. That the right not to be discriminated against on the basis of race – one of the most basic of all human rights – could be suspended with so little public outrage revealed two things about the politics of Indigenous Australians’ human rights: first, a level of public concern about the parlous state of child welfare in remote Aboriginal communities, and second, a belief that core human rights are not a birthright for Indigenous Australians. They are rights that in certain circumstances must be earned and which can be lost.

Opposition to the Declaration on the Rights of Indigenous Peoples The final action that epitomises the anti-rights phase has been Australia’s refusal to support the adoption of the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration was initially drafted in 1994 following more than a decade of discussion within the United Nations concerning the need to better protect the rights of Indigenous peoples. The almost glacial pace of development of the Declaration has largely been

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attributed to concerns about the impact of recognising the right of Indigenous peoples to self-determination. Expressed in an Indigenous-specific treaty, a right to self-determination would have possibly serious consequences for existing land and natural resources practices in countries where Indigenous peoples are currently marginalised (see United Nations Permanent Forum on Indigenous Issues 2007). In May 2006 Australia’s principal objections to the Declaration were listed in a speech delivered on behalf of Australia, the United States and New Zealand, to the UN Permanent Forum on Indigenous Issues. The principal concerns raised there were that the Declaration could give rise to demands for secession, and could seem ‘to confer upon a minority, a power of veto over the law of a democratic legislature’ (Australia, New Zealand and the USA 2006). Concerns were also raised that the Declaration appeared ‘to require the recognition of Indigenous rights to lands now lawfully owned by other citizens’. The United Nations Human Rights Council adopted the Declaration in June 2006, and recommended that the UN General Assembly do likewise. One of the two countries that opposed this in the Council was Canada, with whom Australia, the USA and New Zealand reportedly agreed (Calma 2006). In September 2007 the General Assembly finally adopted the Declaration by a vote of 143 to four (11 countries abstained). Australia was one of the four countries – along with New Zealand, Canada and the USA – to vote against the resolution (United Nations General Assembly 2007). Brough defended Australia’s move on three grounds. He argued (Parliamentary Debates Representatives 17 September 2007, 37) that the declaration would provide a particular group with the right to veto decisions of a democratically elected parliament. This is not something that the Howard government would countenance. Secondly, it would provide rights over land that could override legitimate interests in land held by others and open up the question of compensation. Thirdly, it would place customary law in a superior position to national law.

While each of these propositions is debateable, Brough argued that acceptance of the Declaration would be divisive and that ‘[i]t is in the interest of all Australians that we all get treated equally under the law and under the Constitution – that we are one under the national flag’. This was perhaps

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the Howard government’s most unequivocal statement that there would be no further rights developments for Indigenous peoples. It is worth noting that the Rudd government is vowing to sign the Declaration for ‘symbolic’ reasons, though it does not plan to give it any significant legal effect (Gartrell 2008b).

Conclusion Returning to the initial discussion about the poor educational achievement of Indigenous children, the question might again be posed: Is this state of affairs a denial of rights or should it be seen as a failure of something else? Our argument is that it is both. The lack of an adequate education is clearly a breach of a social right. But it is true that this scenario is different to rights breaches of the past, inasmuch as governments are not now actively preventing people of particular races from being educated. Indeed, lifestyle issues, community attitudes and parenting problems are significant inhibitors now. To that extent, talk about rights breaches is not enough, since the focus of such talk is often restricted to the provision of formal (rather than substantive) rights, where emphasis is concentrated on remedying governmental bars to access. In addition, human rights talk, when not accompanied by appropriate policy, can be diverting: a person’s passive view of themselves as a continual victim of rights abuses will not help them get their child to school. But that does not mean we should abandon rights talk, even when the right we are talking about is a social right, such as the right to an education. Recognising something as a rights breach should inform the minutiae of policy action that improves educational achievement, whether that be the development of specific policies designed to improve school attendance or policies designed to improve parenting skills. Many Indigenous Australians continue to feel a sense of injustice, which has been compounded in the anti-rights phase. For 10 years members of the Stolen Generations felt they had not properly been acknowledged, but even after the Rudd government’s apology, the refusal of the national government to offer compensation to those affected has meant that for some the pain will continue. Frustrated native title claimants, when told that their forced removal from their lands severed the attachment they now need to establish

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in order to make a successful native title claim, see Mabo as a pyrrhic victory. And the dysfunction evident in many Indigenous communities is now blamed primarily on those communities, which now must negotiate directly with government for improved service provision. When riots accompanied the death of a Palm Islander in police custody in 2004, mainland Australians may well have been struggling to understand the depth of emotion generated by the incident. But the Palm Island community in north Queensland had its origins as a de facto prison, to which Indigenous people were sent from all over Australia. Most Palm Islanders, owing to the forced relocation of their forebears, are unable to prove native title claims. And residents are increasingly being blamed for the social dysfunction that pervades the community. When one of their members dies under suspicious circumstances, the response of rioting, which occurred in 2004, is not so surprising. It is possible to imagine the life chances of Indigenous people improving through the implementation of practical measures without talk of rights. But silence on rights will always carry with it the danger of a return to paternalism and the treatment of an identifiable group of people as a ‘problem’ worthy of charity, not as a group of human beings to whom society has responsibilities and duties.

References Abbott, Tony, 1998. ‘The Feral Right.’ In Two Nations: The Causes and Effects of the Rise of the One Nation Party in Australia, ed. N. Davidoff. Melbourne: Bookman. Aboriginal and Torres Strait Islander Social Justice Commissioner, 2007. Social Justice Report 2007. Sydney: Human Rights and Equal Opportunity Commission. Accessed online at www.hreoc.gov.au/social justice/sj report/sjreport07/pdf/sjr 2007.pdf, 1 May 2008. Attwood, Bain, 2001. ‘ “Learning About the Truth”: The Stolen Generations narrative.’ In Telling Stories: Indigenous History and Memory in Australia and New Zealand, eds Bain Attwood and Fiona Magowan. Sydney: Allen & Unwin. —— 2003. Rights for Aborigines. Sydney: Allen & Unwin. Attwood, Bain and Andrew Markus (with Dale Edwards and Kath Schilling), 1997. The 1967 Referendum, Or When Aborigines Didn’t Get the Vote. Canberra: Aboriginal Studies Press. Australia, New Zealand and the United States of America, 2006. ‘Statement . . . on the Declaration on the Rights of Indigenous Peoples.’ Permanent Forum on Indigenous Issues, 17 May. Accessed online at www.treatycouncil.org/PDFs/PFII2006AustNZUS-JointStatement.pdf, 23 March 2007.

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Australia Institute, 2000. ‘Resourcing Indigenous Development and Self-Determination: A Scoping Paper.’ Canberra: ATSIC. Australian Government, 2003. ‘Reports Submitted by States Parties under Article 9 of the [International] Convention [on the Elimination of All Forms of Racial Discrimination]. Fourteenth Periodic [Report of] . . . Australia.’ 28 November. —— 2005a. ‘Regional Partnership Agreement Between the Ngaanyatjarra Council (Aboriginal Corporation), the Australian Government, the State Government of Western Australia and the Shire of Ngaanyatjarraku’, 12 August. Accessed online at www.Indigenous.gov.au/rpa/wa/ngaanyatjarra.pdf, 26 February 2007. —— 2005b. Mulan ‘Economic Strength’ Shared Responsibility Agreement, 11 March. Accessed online at www.Indigenous.gov.au/sra.html, 6 February 2007. —— 2006a. ‘Response of the Australian Government to the Request for Additional Information from the Sixty-Sixth Session of the Committee on the Elimination of Racial Discrimination’, April. Accessed online at www.dfat.gov.au/hr/reports/ aus response to the cerd cte 13April2006.pdf, 8 February 2007. —— 2006b. ‘Regional Partnership Agreement on Indigenous Employment in the East Kimberley’, 7 November. Accessed online at http://www.Indigenous.gov.au/rpa/wa/ eastkimberley.pdf, 26 February 2007. —— 2007. ‘SRAs and RPAs Website.’ Accessed online at www.Indigenous.gov.au/sra. html, 6 February 2007. Australian Government and Politics Database. 2007. Summary of 1998 Queensland election. Accessed online at http://elections.uwa.edu.au, 1 May 2008. Australian Law Reform Commission, 1986. The Recognition of Aboriginal Customary Laws (vols 1 and 2). Canberra: Australian Government Publishing Service. Brennan, Frank, 1998. The Wik Debate: Its Impact on Aborigines, Pastoralists and Miners. Sydney: UNSW Press. Brough, Mal, 2007. ‘Brighter Future for Hope Vale.’ Press Release, 11 May. Accessed online at www.facsia.gov.au/Internet/Minister3.nsf/content/hopevale 11may07. htm, 24 May 2007. Brunton, Ron, 1998a. ‘Betraying the Victims of the “Stolen Generations” ’, CourierMail, 26 February. Accessed online at www.ipa.org.au/files/news 786.html, 5 June 2008. —— 1998b. ‘Betraying the Victims: The “Stolen Generations” Report.’ IPA Backgrounder, 10 (February). Accessed online at www.ipa.org.au/files/IPABackgrounder 10–1.pdf, 2 June 2008. Calma, Tom, 2006. ‘Declaration on the Rights of Indigenous Peoples.’ Parliamentary Briefing, 12 October. Accessed online at www.hreoc.gov.au/speeches/social justice/ drip parliamentary briefing.html, 15 February 2007. Central Land Council, 2007. ‘National Parks.’ Accessed online at www.clc.org.au/ OurLand/nationalparks.asp, 22 March 2007. Chesterman, John, 2005. Civil Rights: How Indigenous Australians Won Formal Equality. Brisbane: University of Queensland Press. Chesterman, John and Brian Galligan, 1997. Citizens Without Rights: Aborigines and Australian Citizenship. Melbourne: Cambridge University Press.

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City of Sydney, 2007. ‘Significant Aboriginal Events in Sydney’. Accessed online at www.cityofsydney.nsw.gov.au/barani/themes/theme6.htm, 22 March 2007. Committee on [the] Elimination of Racial Discrimination, 1999. ‘Press Release RD 893.’ 19 March. —— 2005. ‘Consideration of Reports Submitted by States Parties Under Article 9 . . . Concluding Observations . . . Australia.’ CERD/C/AUS/CO/14, 14 April. Connor, Michael, 2005. The Invention of Terra Nullius: Historical and Legal Fictions on the Foundation of Australia. Sydney: Macleay Press. Debelle, Penelope and Jo Chandler, 2007. ‘Stolen Generation Payout.’ Age, 2 August: 1. Dow, Coral, 2008. ‘ “Sorry”: The Unfinished Business of the Bringing Them Home Report’. Australian Parliamentary Library Background Note. Accessed online at www.aph.gov.au/library/Pubs/BN/2007–08/BringingThemHomeReport.htm, 3 June 2008. Gartrell, Adam, 2008a. ‘Treaty Tops Indigenous Wishlist.’ Courier-Mail, 19 April. —— 2008b. ‘Opposition Indigenous Law Claims “Wrong”.’ Australian, 10 March. Gibson, Joel, 2008. ‘Tasmania’s Stolen to Receive $58 000’. Age, 23 January: 2. Goodall, Heather, 1996. Invasion to Embassy: Land in Aboriginal Politics in New South Wales, 1770 – 1972. Sydney: Allen & Unwin. Goot, Murray, 2006. ‘The Aboriginal Franchise and Its Consequences.’ Australian Journal of Politics and History, 52: 517–61. Grattan, Michelle, 1998. ‘Pauline Hanson’s Hijack of John Howard.’ In Two Nations: The Causes and Effects of the Rise of the One Nation Party in Australia, ed. N. Davidoff. Melbourne: Bookman. —— 2004. ‘PM Jumps, ATSIC Falls.’ Sunday Age, 18 April: 15. Grattan, Michelle and Tony Wright, 2008. ‘Rudd Rules out Compensation.’ Age, 2 February. Hill, Lisa, 1998. ‘Pauline Hanson, Free Speech and Reconciliation’, Journal of Australian Studies, 57: 10–22. Howard, John, 1988. ‘Treaty is a Recipe for Separatism.’ In A Treaty With the Aborigines?, ed. Ken Baker. Melbourne: Institute of Public Affairs. —— 1997. Opening Ceremony Speech to Reconciliation Convention. Accessed online at www.austlii.edu.au/au/special/rsjproject/rsjlibrary/car/arc/speeches/opening/ howard.htm, 22 February 2007. Hughes, Helen, 2007. Lands of Shame: Aboriginal and Torres Strait Islander ‘Homelands’ in Transition. Sydney: Centre for Independent Studies. Johnston, Elliott, 1991. Royal Commission into Aboriginal Deaths in Custody. National Report (volume 5). Canberra: AGPS. Keating, Paul, 1992. ‘Redfern Speech’, 10 December. Accessed online at http://apology. west.net.au/redfern.html, 8 June 2008. Kissane, Karen et al., 2007. ‘Vindication at Last: Jury Says Clark was a Rapist’, Sydney Morning Herald, 1 February. Accessed online at www.smh.com.au/news/national/ vindication-at-last-jury-says-clark-was-a-rapist/2007/01/31/1169919402606.html#, 22 March 2007. Macintyre, Stuart and Anna Clark, 2003. The History Wars. Melbourne: Melbourne University Press. Manne, Robert, 1998. ‘Foreword.’ In Two Nations: The Causes and Effects of the Rise of the One Nation Party in Australia, ed. N. Davidoff. Melbourne: Bookman.

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National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families, 1997. Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families. Sydney: Human Rights and Equal Opportunity Commission. National Native Title Tribunal, 2008. ‘Search Determinations.’ Accessed online at www. nntt.gov.au/Applications-And-Determinations/Search-Determinations/Pages/ Search.aspx, 3 June 2008. Nettheim, Garth, 1998. ‘The International Law Context.’ In Citizenship and Indigenous Australians: Changing Conceptions and Possibilities, eds Nicolas Peterson and Will Sanders. Melbourne: Cambridge University Press. Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, 2007. Ampe Akelyernemane Meke Mekarle ‘Little Children are Sacred’. Accessed online at www.nt.gov.au/dcm/inquirysaac/pdf/bipacsa final report.pdf, 4 June 2008. Pearson, Noel, 2000. Our Right to Take Responsibility. Cairns: Pearson and Associates. Pink, Brian and Penny Allbon, 2008. The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples. Canberra: Australian Bureau of Statistics and Australian Institute of Health and Welfare. Accessed online at www.aihw.gov.au/ publications/ihw/hwaatsip08/hwaatsip08.pdf, 2 June 2008. Rowse, Tim, 2002. Indigenous Futures: Choice and Development for Aboriginal and Islander Australia. Sydney: UNSW Press. —— 1994. ‘How We Got a Native Title Act.’ In Make a Better Offer: The Politics of Mabo, eds Murray Goot and Tim Rowse. Sydney: Pluto Press. Sanders, Will, 2003. ‘The Tasmanian Electoral Roll Trial in the 2002 ATSIC Elections.’ Australian National University Centre for Aboriginal Economic Policy Research Discussion Paper no. 245. Accessed online at http://online.anu.edu.au/caepr/ Publications/DP/2003 DP245.pdf, 26 May 2008. —— 2004. ‘Participation and Representation in the 2002 ATSIC Elections.’ Australian Journal of Political Science, 39: 175–95. Savva, Niki, 1997. ‘Fischer Seeks a More Conservative Court.’ Age, 5 March: 1. Senate Select Committee on the Administration of Indigenous Affairs, 2005. After ATSIC – Life in the Mainstream? Accessed online at http://www.aph.gov.au/Senate/ committee/Indigenousaffairs ctte/report/final/report.pdf, 1 May 2008. Skelton, Russell, 2007a. ‘Indigenous Benefits Scheme Branded Demeaning.’ Age, 22 May: 6. —— 2007b. ‘Giving Indigenous Reform the Hard Sell.’ Age, 23 May, 10. Tickner, Robert, 2001. Taking a Stand: Land Rights to Reconciliation. Sydney: Allen & Unwin. United Nations General Assembly, 2007. ‘General Assembly Adopts Declaration on Rights of Indigenous Peoples’, 13 September. Accessed online at www.un.org/ News/Press/docs/2007/ga10612.doc.htm, 5 June 2008. United Nations Permanent Forum on Indigenous Issues, 2007. ‘Latest Updates on the Declaration . . . ’ Accessed online at www.un.org/esa/socdev/unpfii/en/ declaration.html, 15 February 2007. Windschuttle, Keith, 2002. The Fabrication of Aboriginal History. Volume One. Van Diemen’s Land 1803–1847. Sydney: Macleay Press.

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Cases Commonwealth v Yarmirr [2001] HCA 56. Cubillo and Gunner v Commonwealth [2001] FCA 1213. Mabo v Queensland (No. 2) [1992] HCA 23. Milirrpum v Nabalco 1971. Federal Law Reports, vol. 17. Kruger v Commonwealth [1997] HCA 27. Trevorrow v South Australia (No. 5) [2007] SASC 285. Western Australia v Ward [2002] HCA 28. Wik v Queensland [1996] HCA 40. Yanner v Eaton [1999] HCA 53. Yorta Yorta Aboriginal Community v Victoria and Others [1998] FCA 1606. Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58.

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Chapter Six

GENDER AND SEXUALITY RIGHTS

The presumption that men and women enjoy equal rights in Australia does not stand up to close scrutiny. Historically – and up to the present day – Australian women have suffered disadvantage and discrimination due to gender-based stereotypes, and as a result, they continue to be underrepresented in public office and within the senior ranks of the business community. Australian women persistently experience a higher incidence of domestic violence and sexual assault than do men, and are discriminated against in the workplace in terms of pay and conditions, including access to maternity leave. Particular groups of women, including those in Indigenous communities and lesbians, have not only been overrepresented in some of these areas of discrimination, but also experience unique forms of disadvantage due to the intersection of their gender, race and/or sexuality. Although Australia is a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the key international women’s rights convention, and has codified some of its articles in the Sex Discrimination Act, the seriousness with which Australia takes its obligations under the Convention has been questioned. Developments throughout the 1990s effectively dismantled crucial women’s policy machinery. Moreover, the unwillingness of the former Howard government to strengthen Australian women’s rights provisions by not signing on to the CEDAW Optional Protocol (see below) coupled with the limited resources given to addressing specific gender-based disadvantage represent a further

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erosion of the already fragile framework that exists to protect women’s rights. Similarly, gays and lesbians have historically suffered disadvantage based on their sexual preferences. They have been treated differently to other citizens in terms of their employment, inheritance, marriage and custodial rights, differences that were detailed in the Human Rights and Equal Opportunity Commission’s (HREOC) 2007 National Inquiry into Discrimination against People in Same-Sex Relationships. Shortly after assuming office, the Rudd Labor government stated its intention to implement many of the recommendations of the HREOC inquiry, a welcome development to many in the homosexual community; still, some forms of discrimination remain unaddressed for Australian gays and lesbians, including discrimination in the areas of inheritance, marriage and the adoption of children. This chapter begins by discussing the importance of taking up a genderbased conception of human rights. It argues that such an approach is appropriate for understanding the rights of women as well as lesbians and gays, and provides the basis for our decision to cover these divergent groups within one chapter. The chapter then outlines key international human rights instruments in relation to women’s rights and the gender-based economic, political and social disadvantage experienced by Australian women. Attempts to address this disadvantage through national and international instruments, including the Sex Discrimination Act (SDA) and women’s policy agencies, as well as through the CEDAW, will be considered. The second section of the chapter addresses areas of discrimination suffered by homosexuals in Australia, and considers recent efforts to challenge these through national and international human rights avenues. Before turning to the gendered nature of rights, a point of clarification is needed about why lesbian women are discussed here separately from the general category of women. Lesbians are part of the diverse population that comprises Australian women. As with Aboriginal women and women from other race and class backgrounds, lesbians share interests in common with all other women, such as access to equal social, political and economic rights. At the same time, lesbian women share common interests with their male counterparts in the homosexual community. For lesbians, gender and sexuality interact in ways that affect their ability to enjoy human rights. In many respects, this interaction has negative outcomes for these women. From a historical point of view, lesbian women have suffered the political,

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economic and social disadvantages experienced by all women. At the same time, they have suffered additional discrimination due to their sexuality, including a lack of recognition of their relationships with partners and children, which has led, in turn, to further material hardship and marginalisation. Therefore, it is important to ensure that non-heterosexual women are taken into account in any discussion of Australian women at the same time as identifying lesbian women alongside gay men as a separate category for analysis.

A gender-based approach to human rights As has been discussed earlier in this book, the mature conception of human rights has its roots in liberal thought. These roots have brought complications for women rights seekers. Traditional liberalism upholds the notion of the public–private distinction, where the activities of government are thought best to be limited to the public sphere, and this distinction has informed conceptions of the proper sphere of rights. Human rights, at least in their civil and political guise, are generally perceived as rights related to public activities, such as, for example, the rights to vote, to free assembly, to free speech and expression and so forth. Furthermore, they are regarded as rights that citizens hold against government; rights are negative in the sense that citizens use them as a shield to protect against the abuse of government power. To the extent that women have been considered at all in mainstream human rights theory, it has been on the basis that women should be treated the same as men, without any recognition of their unique life experiences. As many feminist scholars point out, the tendency to view human rights as public, as undifferentiated on the basis of gender and as something to be held against the state is problematic as far as women are concerned (Charlesworth and Chinkin 2000; Engle 2005; Rao 2001). Traditionally, the private realm of the family has been the focus of women’s lives, and for many women still, it is in this private realm where their rights are most at risk, especially through forms of domestic violence. Charlesworth (1995, 106) encapsulates this problem: [I]nternational human rights law, like many national legal systems, operates primarily in the public sphere, that is within the world of government, politics,

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economics, and the workplace, areas traditionally associated with men. Its contrast is the private sphere of home, hearth, and family, the traditional province of women, which is generally regarded as outside the scope of national laws and international human rights laws. And yet the most pervasive harm against women tends to occur within the inner sanctum of the private realm, within the family.

The private nature of women’s vulnerability in terms of rights has implications for their relationship to the state. What women often need in terms of rights protection is not distance from the state but state assistance, through, for example, police protection and policies to address domestic violence and discrimination. This suggests a positive relationship with the state, a view that is much more aligned with the second generation approach to rights (see chapter 1). Understanding women’s rights as private has two dimensions. The first relates to the fact that it is in the family sphere that women often need human rights protection. The second suggests that many of the human rights abuses that women suffer are a violation of their most private space – their bodies. The difficulties women face in controlling their reproductive lives and expressing their sexuality, as well as their experience of specific gender-based violence, are some of the most serious rights violations women experience. This is not to say that women are immune to public rights violations. Like men, they also experience political exclusion and repression, economic deprivation and other abuses; however, when women encounter these public human rights abuses, there is often a gender dimension to them: women’s experience of these violations is related to uneven power relations between and ongoing stereotypes about men and women. For instance, women experience slavery as forced prostitution, terrorism as rape and imprisonment as confinement to the home (see Bunch 1995, 15). Restrictions on women’s rights to vote, work or to be educated are used as a means to control women by limiting their access to the public realm. Before elaborating on these human rights violations, it makes sense to clarify what is meant by the term ‘gender’. Very often the term is incorrectly used as a synonym for ‘women’. Gender is related to the sex category women but it is equally related to men. Gender, unlike sex, is not a biological term but refers to a set of socially constructed meanings about the characteristics – in

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particular, the masculine and feminine traits – that adhere to men and women. The view that men are more decisive, rational and capable beings while women are more emotional, irrational and inept are examples of the construction of gender-based stereotypes. According to Beckwith (forthcoming): [Gendered] meanings emerge from stereotypes about male and female behaviour; from characteristics and behaviours conventionally associated with women and men; from normative assumptions about appropriate behaviours of men and women; from assumptions about biological difference; and from social structures of power and difference. Gender represents both the outcomes and processes of human actors and institutions in developing meanings about a range of femininities and masculinities which are not ‘natural’ but are identifiable social and political constructions.

Gender-based disadvantage relates to the uneven outcomes between women and men that result from socially constructed expectations and assumptions about men’s and women’s rightful place in politics, economics and society. At the basis of this disadvantage is a power relationship in which one group in society (men) has greater access and privileges than another group (women). This imbalance situates men and women differently in society and in such a way that women suffer greater gender-based disadvantages than do men, often experienced in the form of discrimination. This chapter uses the term ‘gender-based’ disadvantage rather than women’s disadvantage in order to emphasise the point that women’s rights and men’s rights exist in relation to each other. This term also suggests, as is made obvious in the discussion on sexuality rights, that certain groups of men and women are differentially situated in relation to each other and further marginalised in terms of accessing their rights because of the intersection of gender, race and sexuality. Just as traditional human rights theory has been blind to the position of women in any human rights regime, it has also failed to adequately account for the experiences of gays and lesbians. As with women, it is only through applying a gender lens that it is possible to capture this experience, which is why these two groups are discussed within one chapter. Because of their sexuality, gays and lesbians defy existing gender stereotypes about seemingly ‘natural’ male and female behaviour. Men of a same-sex orientation tend

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to be stereotyped as being emotional and irrational, as overly feminine, whereas lesbians are often thought of as butch and masculine. In both cases, they fall outside the traditional model of the white, male, heterosexual citizen. In this sense, homosexuals are deviant, a status that makes them unsuitable for full citizenship rights. As with women, people in same-sex relationships have been discriminated against through laws, public policies and informal practices that affect their enjoyment of civil, political and economic rights. Due to overt as well as subtle forms of discrimination in the public realm, many gays and lesbians have been forced to keep significant aspects of their lives private, which leaves them in a very precarious position, vulnerable to mistreatment, including serious forms of violence. As with women, what homosexuals need is not a state in retreat, but an active state providing protection against discrimination and abuse. It is this form of protection that many Australian homosexuals have been struggling to achieve for decades. As the latter section of the chapter demonstrates, this struggle is finally starting to yield significant results.

Internationalising women’s human rights The CEDAW represents an important first step in the effort to expand traditional conceptions of human rights to encompass women’s rights. Coming into force in 1981, the Convention is often described as the international bill of rights for women (UNDAW 2000). Over 90 per cent of UN members states have ratified the Convention, making it one of the best subscribed of all the UN human rights treaties. The treaty covers women’s rights in the key areas of discrimination, representation in public life, education, employment, health, law and marriage. It also pays attention to a commonly overlooked subset, rural women. CEDAW is premised upon the extension of women’s rights in regard to civil and political rights, but also women’s reproductive rights, including issues relating to maternity leave, childcare and, most controversially, family planning. It recognises the influence of culture and tradition on restricting women’s enjoyment of their fundamental rights. As stated in the introduction to the Convention, ‘[t]hese forces take shape in stereotypes, customs and norms which give rise to the multitude of legal, political and economic constraints on the advancement of women’ (CEDAW 1981).

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The Convention contains a number of important features. It eschews a narrow definition of discrimination that focuses on gender-neutral treatment in favour of a broader definition that provides for ‘measures which curtail women’s enjoyment of equal opportunities as well as systemic effects which undermine substantive equality’ (Guest 1999, 9; emphasis added). These measures could include affirmative action policies that accept that men and women may need to be treated differently, albeit for a limited period of time, in order to achieve equality. It also seeks to redress the unequal treatment of women in the public realm in relation to civil and political rights, and at the same time, under Article 1, obliges states to take action to address women’s rights and fundamental freedoms ‘in the political, economic, social, cultural, civil or any other field’. In other words, under CEDAW, states are encouraged to actively address their complicity in public and private acts that might impair women’s enjoyment of their rights. By signing the Convention, states make a commitment to adopt a range of anti-discrimination measures, including those that r incorporate the principle of equality of men and women in their legal

system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women r establish tribunals and other public institutions to ensure the effective protection of women against discrimination r ensure elimination of all acts of discrimination against women by persons, organisations or enterprises. These commitments are overseen by the CEDAW Committee, which receives periodic reports from all state signatories to the Convention. The committee allocates a short period of time to examine each country report and question governments on their actions. Government representatives of the state under review appear at the committee hearing while domestically based nongovernment organisations increasingly have the opportunity to put forward their views. After the hearing, the committee will hand down a report that makes recommendations for the government to adopt in order to bring its policies into line with the Convention. The implementation procedures for CEDAW, as with those for all other UN human rights treaties, possess some fundamental flaws. The committee reporting process is so slow that reports are often outdated by the time the

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committee receives them. The CEDAW Committee must deal with governments who may produce reports that put the best gloss on their own actions and attempt to hide important deficiencies in their gender equality framework (for details of the human rights treaty system, see chapter 2). States are able to make what are known as ‘reservations’ to the Convention that significantly weaken its effect and undermine its purpose when implemented at the domestic level (see Byrnes 2002). There are other more general limitations with CEDAW as well, including the sense that having a separate convention to address women’s rights results in the marginalisation of these rights within the international human rights system (Charlesworth 1995). For some women’s rights advocates, it is more important to strengthen the existing commitments to gender equality in mainstream human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, rather than focusing solely on CEDAW. As detailed below, CEDAW does not address issues related to violence against women, a lacuna that had to be tackled separately through the 1993 Declaration on the Elimination of Violence Against Women. Despite these limitations, evidence is emerging that the ratification of CEDAW does make a material difference in women’s lives. Based on a study of 180 countries Gray et al. (2006) have found that ‘participation in this agreement has played a role in increasing female levels of literacy, participation in the economy, and representation in parliament’. The Convention also provides an independent framework and tool for lobbyists, lawyers and educators to use in promoting gender equality at the national level (Byrnes 2002, 153). Aside from CEDAW, other international arenas have been used to expand the understanding and enforcement of women’s rights. One of the most important of these has been international women’s rights conferences, the first of which was held in Mexico in 1975 to mark the commencement of the UN Decade for Women (see West 1999). Although not granted delegate status at these conferences, non-government organisations and transnational women’s rights activists have held parallel events and, through their lobbying efforts, have helped craft much of the language and ideas adopted in the formal UN forums (Kardam 2004, 94). A challenge for equality activists at these events has been the presence of official and unofficial critics of women’s rights, many of whom take conservative religious positions, and

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who compete with feminists to shape official conference documents. The influence of these conservative actors has been evident in the formulation of narrow definitions of gender and family in these texts, as well as in blocking the expansion of lesbian rights more generally (see Chappell 2006a). The largest and most recent of these conferences, the Fourth World Conference on Women, took place in 1995 in Beijing. Two key documents emerged from this conference: the Beijing Declaration and the Beijing Platform for Action (BPFA), both of which committed governments ‘to eliminate all forms of discrimination against women and the girl child and remove all obstacles to gender equality and the advancement and empowerment of women’ (Beijing Declaration 1995). The BPFA mirrored the main areas of concern of CEDAW but expanded it to include violence, armed conflict, the media and the environment and gave special attention to the rights of girls. In terms of enforcement, the Beijing process has even fewer teeth than CEDAW. States are called upon to take action in each of the areas of concern and report on their actions, but there is no formal reporting process and no sanctions against those countries who fail to live up to their promises. This lack of enforcement helps explain why a ten year review of the BPFA sponsored by the UN Commission on the Status of Women, known as Beijing +10, identified many new and ongoing gaps in women’s enjoyment of human rights worldwide (see Linkage Caucus 2005). But as with CEDAW, the value of the women’s conferences, and the Beijing process in particular, may not be so much the attainment of international targets as the provision of another clear set of benchmarks to be used by gender equality activists to educate and lobby national governments and the broader public on issues concerning women’s rights (see West 1999, 190–3).

Australia’s women’s rights machinery Australia ratified CEDAW in 1983 and has two reservations to the Convention, one of which concerns the provision of paid maternity leave, the other relating to women taking up combat roles in the armed forces. These reservations mean that the government cannot be held accountable by the CEDAW Committee for policy developments in these areas. Two and a half decades on, how well has Australia addressed its Convention obligations? One way to measure our compliance is through the implementation of the treaty into law, and on this measure Australia can be seen to have partially

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met its commitments. In 1984, in the face of a great deal of hostility, Senator Susan Ryan, the only woman in the Hawke Cabinet, ushered in the SDA, which codified parts of the CEDAW under Australian law (for a discussion of the heated politics around the Act, see Ryan 2004). The SDA outlawed discrimination on the basis of sex, marital status and pregnancy in such areas of public life as employment, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs (Maddison and Partridge 2007, 18–19). In 1992 and 1995, the legislation was amended to include discrimination in industrial awards, and to strengthen the sexual harassment and pregnancy discrimination provisions. It also changed the definition of indirect discrimination, shifting the onus onto employers to demonstrate that a requirement disadvantaging women was ‘reasonable’ (Maddison and Partridge 2007, 18). In 1986, a separate Equal Employment Opportunity (EEO) Act was introduced to specifically address women’s disadvantage in the labour market. In prohibiting sex discrimination by law, the SDA ushered in a new era in the struggle for women’s rights. One of the most important aspects of the SDA has been its social impact. As legal scholar Beth Gaze notes, ‘[t]he social significance of the SDA is as a public national expression of condemnation of discrimination against women’ (2004, 916). It creates ‘a space and vocabulary for a different understanding of sex discrimination, not just as something that happens, but as something unlawful’ (2004, 914). The act is not without its limitations. The SDA adopts a narrower definition of discrimination than the CEDAW, in that it emphasises formal and direct forms of discrimination rather than the more systemic and substantive approach found in the treaty (see Sullivan 1990). It also fails to recognise diversity among women and the different ways they experience sex discrimination. A further weakness of the SDA is that for those seeking redress for discrimination, the Act created an individual complaints-based mechanism administered through the Sex Discrimination Commissioner of the HREOC. Individual women are often very vulnerable when making claims of sex discrimination. It is often difficult for them to obtain adequate legal support or other resources, which is a problem given that this is a technical area of the law. The problem is further compounded by the fact that, in making their claims, women are often facing powerful corporations or governments (Gaze 2004, 920). Also, the Act is much less direct than

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CEDAW in challenging the public–private distinction. Exempted by the Act are voluntary bodies, including religious institutions such as denominational schools, where it remains possible to discriminate on the basis of gender and sex. As the CEDAW Committee has noted, the SDA goes only so far in addressing gender-based discrimination and does not make up for the absence of a bill of rights that includes an entrenched guarantee of gender equality (CEDAW 2006, 2). As Charlesworth and Charlesworth have noted, the SDA ‘is a partial and porous translation of Australia’s international commitments’ (2004, 865). In the two decades since the SDA has been enacted, some minor amendments have been made to it to extend the coverage of the Act in areas such as superannuation, although none address the substantive weaknesses in the law. Indeed, under the Howard government, attempts were made to substantially weaken the legislation: bills were introduced that would have had the effect of allowing for discrimination between women (in an effort to stop single women and lesbians accessing assisted reproductive technologies; see details below) and also to remove the position of the sex discrimination commissioner (for a full discussion, see Chappell 2002). Ultimately, these bills did not become law; nevertheless, these actions helped to cast a mood of hostility over the issue of women’s rights during the 11 years of Coalition government. This mood was further intensified in 2000 when the government refused to extend Australian women’s protection under CEDAW by signing on to its Optional Protocol, the aim of which is to bring the treaty into line with other human rights conventions, such as the ICCPR, by providing individuals, rather than just states, with the ability to bring complaints before the committee overseeing CEDAW. It also provides the committee with the ability to inquire into complaints within signatory states. After the protocol came into force internationally in December 2000, the Australian government remained steadfast in its refusal to become a signatory, with Foreign Minister Alexander Downer claiming that ‘Australian women already had adequate legal protection of their rights’ (Evatt 2000, 7).1 Clearly, the Rudd government felt differently. On entering office it began the process of Australia’s ratification of the Optional Protocol (Attorney-General 2008a). Alongside important legislation such as the SDA and the Equal Employment Opportunity Act, the other main mechanism for implementing women’s rights in Australia has been through women’s policy machinery.

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From the 1970s to the 1990s, Australia was a pioneer in creating women’s bureaus to lobby for and implement government policy concerning women’s rights (see Sawer 1990; Eisenstein 1996 and Chappell 2002). These agencies, operating within federal and state jurisdictions, were often created within the centre of government, in the Department of the Prime Minister and Cabinet (PM&C) federally, or in state premiers’ departments and chief ministers’ departments in the territories. These units worked with other women’s agencies in ‘line’ departments such as health or housing, to develop a ‘hub’ and ‘spokes’ model of women’s policy agencies which ensured a coordinated policy response to women’s issues (Sawer 1990). Emerging out of the women’s movement of the 1970s, these agencies held strongly to the notion of gender equality and later used CEDAW and the government’s Beijing Platform commitments to push forward a women’s rights agenda (see Chappell 2006b; Sawer 2007). They developed policy in key areas, including anti-discrimination, violence against women, women’s employment, childcare and education. Throughout the late 1980s and 1990s the Australian ‘hub and spokes’ model of women’s agencies, the ‘femocrats’ who staffed them, and the women’s budgets and policies they produced became internationally recognised as examples of best practice and were replicated throughout the world (Sawer 2007, 20). Ironically, while women’s political machinery was expanding internationally, these same agencies were being dismantled and depoliticised in Australia. In 2004, the Federal Office for Women relocated from Prime Minister and Cabinet to the outer ministry of Family and Community Services, while in New South Wales, the stand alone Department for Women was disbanded and replaced by a small, poorly resourced Office for Women in the Premier’s Office. In both cases, the demotion saw the goal of gender equality fall off the agenda of the reconstituted agencies (see Maddison and Partridge 2007a, 52; Chappell 2006b). In 2006, the CEDAW Committee expressed its concern over these developments in its periodic review of Australia’s performance in relation to its CEDAW obligations (CEDAW 2006). In a recent analysis of the fall of the Australian femocrat (2007), Women and politics expert Marian Sawer argues that the winding back of this machinery was not only the result of the election in 1996 of a conservative federal government, but it also combined with the concomitant forces of the rise of neoliberal discourse, the shift away from the language of equal opportunity and the emergence of an influential (conservative) men’s movement.

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According to Sawer, another significant change in the opportunity structure ‘included the decreased domestic influence of the UN human rights regime as the Australian government became more resistant to the politics of embarrassment and more oriented to the international positions adopted by the United States’ (2007, 39–40). As a result, Australia was much less supportive of multilateral responses to international issues, including those concerning human rights, during the 11 years of the Howard government. Clearly, Australia has a patchy record of providing the tools necessary to protect women’s rights. But how does the country rate in terms of important substantive policy areas? According to the 2005 Human Development Report, Australia is ranked second in the world on the Gender-related Development Index (GDI), which measures inequalities between men and women in terms of living a long and healthy life, being educated and having a decent standard of living. On the Gender Empowerment Measure (GEM), which focuses on women’s participation in economic and political life, Australia is ranked seventh (for further discussion, see Maddison and Partridge 2007a, 4–5). Despite controversies over the ranking and methodology used in these reports (see Curtin and Devere 2006), these positive rankings give some indication that, on a global scale, Australian women are better off than many of their sisters elsewhere. But this alone may not be saying much because when we judge the advancement of Australian women’s rights against CEDAW commitments, and against the position of Australian men, we find marked discrepancies. The following discussion focuses on women’s enjoyment of their human right to equality in three key areas: economics, politics and personal safety. Economic disadvantage Under CEDAW, women’s economic rights are seen as essential to their enjoyment of equality. The Convention emphasises the right to work, to equal opportunities in employment, the right to equal remuneration and the right to promotion, job security, training, and other benefits and conditions of employment. Because the Australian government is a signatory to this Convention, it has a responsibility for ensuring the achievement of these outcomes. Yet evidence shows that in each of these areas, Australian women continue to lag well behind their male counterparts. To a large extent the economic disadvantage experienced by Australian women can be seen to stem from ongoing gendered assumptions about

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women’s proper role as mothers and carers rather than as workers and independent economic actors. This is not to argue that caring roles are unimportant, but rather, that these roles are not shared equally between women and men and are accorded little economic value. This pattern reinforces a male breadwinner economic model and maintains women’s marginalised economic position. It is also important to point out that different groups of women experience any diminution of their economic rights more acutely than do men. As is indicated below, Indigenous women, women from culturally and linguistically diverse (CALD) backgrounds, refugee women and single mothers of every background, all experience a greater degree of economic insecurity than do women and men of other backgrounds. Economically, women carry a double burden, in that they are largely responsible for unpaid work in the home while also undertaking jobs that are, in general, lower paid than those of men. The last major survey on unpaid work in Australia was undertaken in 1997. In this survey, it was found that women contributed 63 per cent of all unpaid work in Australia, 91 per cent of which was unpaid housework (including childcare). The Australian Bureau of Statistics (ABS) estimates that it would cost $261 billion to pay for these duties at market rates (in OFW 2007). When women do enter the workforce it tends to be on a part-time basis, in sexsegregated occupations that have lower rates of pay and less favourable conditions than full-time male dominated jobs. In 2002, 39 per cent of women in the Australian workforce worked part time. The OECD average of women in part-time employment is 25 per cent (Brennan 2007, 36). Participation in part-time work increases significantly with the birth of children. Upon the birth of a child, the likelihood that a woman will continue working full time drops significantly, from 67 to 16 per cent (OFW 2004, chapter 4). The HREOC noted the impact of these patterns in its report Striking the Balance: [I]t is evident that for so long as women are expected to bear the major responsibility for unpaid caring they are unlikely to participate equally with men in paid work. There are, after all, only so many hours in each day and mothers in paid work are already using almost all of them. As a result, women are less likely to earn or own as much as men and more likely to live as economic dependents or in poverty as sole parents than men. (2005, 68)

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The pay differential between men and women, know as the gender pay gap, is a persistent problem for women. In 2005, women’s full-time earnings were 15 per cent lower than men’s, meaning that, on average, women earn 85 cents for every dollar men earn. The gender pay gap substantially widens to 33.7 per cent when casual, part-time and junior earnings are taken into account (HREOC 2005, 69). In part, the gap is due to women’s access to overtime; not only do fewer women have the opportunity for this additional source of income (36 per cent compared to 44 per cent of men), but also, when they do undertake additional hours of work, 44 per cent receive no pay (whereas the corresponding figure for men is 28 per cent). Women’s conditions are also affected by part-time employment, with 22 percent of all female employees deprived of leave entitlements (OFW 2004, chapter 4). Women are further disadvantaged by these patterns of labour force participation across their life course, especially in relation to retirement income. Women are unable to accrue superannuation at the same rate as men because of their lower wages, broken work patterns and shorter time in the labour market. In 2002, for instance, women worked an average of 18 years full time whereas men worked 38 years (OFW chapter 4), which leaves women vulnerable in old age, especially given their longer lifespan. Indigenous Australian women fare even worse, and in some respects worse than do Indigenous men. A 2007 report by the Productivity Commission (PC) highlights some of the specific economic and social disadvantages experienced by Indigenous women. In 2004–05, Aboriginal women’s workforce participation rate (51 per cent) was much lower than that of non-Indigenous women (70 per cent) and Indigenous men (69 per cent) (46). For the same period, the unemployment rate for Indigenous women and men was three times that of non-Indigenous people (12.9 compared with 4.4 per cent2 ) (51). A high proportion of the Indigenous population lives in households that rely upon welfare payments as the main source of income (51 per cent) (54). The dependence on welfare is reflected in the low median gross weekly household income for Indigenous people, which is almost half that of the non-Indigenous population ($340 compared to $618) (54). This level of economic disadvantage not only influences Indigenous women’s economic rights but also has a direct bearing on their health outcomes and mortality rates. As the PC report notes:

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Adverse health outcomes and higher mortality rates are important examples of the effect that low income can have on people. People who have low incomes, or are socially disadvantaged in other ways, tend to live shorter lives and suffer more illness than those who are well off. In Australia, men and women with lower socioeconomic status, including many Indigenous people, bear a higher burden of disease.

In its last report on Australia, the CEDAW Committee drew attention to these poor employment and health outcomes and expressed its concerns about the ongoing inequalities experienced by Aboriginal and Torres Strait Islander women (CEDAW 2006, 5). The effects of a gendered (and raced) labour market were exacerbated with the implementation of the 2006 WorkChoices legislation, which aimed to change labour market regulations by shifting workers from enterpriselevel bargaining to individual contracts. Early assessments of the legislation pointed to the exacerbation of existing gender-based disadvantages in the labour force, including lowered pay for and conditions of those with weak bargaining power, which obviously included many women workers (see Pocock and Masterman-Smith 2006, 5; Women in Economic and Social Research 2006). One of the first acts of the incoming Rudd Labor government was to reverse this legislation, based, in part, on arguments about the harm it did to women in working families (ALP 2007). On coming to office in 2007, the Labor government not only faced the challenge of improving women’s income but also, and equally importantly, their work conditions and ability to balance family and work demands. The provision of affordable universal childcare, key to achieving these other goals, remains an unmet demand of equality activists (for a detailed discussion, see Brennan 2007, 45–9). Moreover, Australia remains with the USA the only OECD country without a comprehensive paid maternity or parental leave scheme. Whereas comparable states such as Canada provide 15 weeks paid maternity leave with a combined total of 35 weeks parental leave paid through the social security system (Service Canada 2008), Australia pays a one-off fixed sum ‘baby bonus’ (which, as at January 2009, will be $5000 but is only available to families on an income of less than $150 000 per year) on the birth of a child and has legislated for 12 months unpaid leave. Currently, the CEDAW reporting process cannot be used to hold the government accountable for Australia’s inaction on maternity leave because of

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Australia’s reservation to the relevant article in the Convention, although the CEDAW Committee continues to call on Australia to remove its reservation and introduce a uniform paid maternity leave scheme (CEDAW 2006, p 4). Thus, the ongoing challenge for gender equity activists is twofold: first, to push the government to rescind this reservation, and second, to introduce a comprehensive maternity leave scheme. In February 2008, the incoming federal government released the terms of reference for a 12 month productivity commission inquiry into the introduction of a paid maternity, paternity and parental leave scheme. Time will tell whether this investigation proves more fruitful than those presented to previous governments, including HREOC’s 2002 A Time to Value report, which recommended a comparatively modest national paid maternity leave scheme (HREOC 2002). Political representation The CEDAW places strong emphasis on the political rights of women. Article 7 calls on state parties to eliminate discrimination against women in the political and public arenas and, in particular, to protect and promote women’s equal rights to vote and to stand for elected bodies, to hold public office and to participate in non-governmental organisations and associations. These measures were restated at Beijing where a series of concrete proposals, including gender quotas, were advanced in the BPFA to ensure women’s equal access to decision-making positions. On these fronts, Australia’s record is mixed. Although there have been positive changes over time, women’s representation in parliament and in key decision-making positions remains well below the standards set by CEDAW and are far from equal with Australian men. Before turning to the details of women’s representation in Australia, it is important to briefly consider why inequalities in women’s political representation matter. What difference does it make to women to have members of their own sex as representatives in parliament? There are two related arguments on which the case for equal representation is based. The first is a simple justice or descriptive representation argument: women comprise at least 50 per cent of the population, therefore they should hold 50 per cent of decision-making positions since policies influence the lives of all women and all men. The second argument is premised on substantive equality, that is, the need to have women physically present as well as to have women’s interests represented in decision making. Men have for centuries claimed

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the right to speak on women’s behalf, yet without experiencing life as a woman, they are unable to represent their claims as well as women themselves. As Anne Phillips explains: ‘[N]o amount of thought or sympathy, no matter how careful or honest, can jump the barriers of experience’ (2006: 175). Furthermore, research has shown that legislative behaviour and policy preferences do differ between female and male legislators (Lovenduski and Norris, 1996; Sainsbury, 2004). This is not to argue that all women representatives will always necessarily represent women’s issues, but that it is necessary that women’s voices are reflected in democratic decision-making bodies. In addition, because, like men, women hold a diversity of views and have a diversity of interests, it is essential that women from a range of different backgrounds have the opportunity to have their views represented in key democratic institutions. In Australia the legislature has been considered the primary venue for the protection of rights. This makes an assessment of women’s place in the parliamentary realm, as opposed to other venues, such as courts, especially significant. On the best analysis, the record of women’s representation in, and experience of, Australia’s parliaments has been a mixed one. Australia was at the forefront of advancing women’s rights to vote and to stand for parliament, with South Australian women being among the first in the world to vote when they won the franchise in 1894. White Australian women benefited from the opportunity provided by federation to establish equal voting rights with men and from 1902 were able to vote and to stand for federal parliament, although another 41 years would pass before women first entered parliament when Dame Enid Lyons was elected to the House of Representatives and Dorothy Tagney to the Senate in 1943. The timeline for Indigenous women’s suffrage is even more delayed. Although some Indigenous women were enfranchised in 1949, it was not until 1962 that they all received the right to vote in federal elections (see chapters 4 and 5). To date, no Indigenous woman has yet been elected a member of the federal parliament, but in 2001 Carol Martin (ALP) became the first Indigenous woman to hold a seat in any Australian legislature when she won the seat of Kimberley in the parliament of Western Australia (AEC 2007). Despite Australia’s early gains in legislating for (white) women’s political rights, its record in this area now lags behind many countries. After the 2007 election, women hold 26 per cent of the seats in the House of Representatives and 35.5 per cent of Senate positions.3 Based on the International

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25

ALP

Percentage

Total Women

20 15 10 5

19 77 19 80 19 83 19 84 19 87 19 90 19 93 19 96 19 98 20 01 20 04 20 07

0

Year

Figure 6.1 Women as a percentage of Liberal and Labor House of Representatives Members, 1977–2007 Source: Adapted from Marian Sawer, 2006, ‘Paradise Postponed: Women and the House of Representatives’, Discussion Paper 3/06 (March). Accessed at http://arts. anu.edu.au/democraticaudit/search keyw frm.htm, 20 March 2008.

Parliamentary Union ranking of women’s representation in all national parliaments, Australia is currently placed 30th internationally (down from 22nd in 2000), well below comparable European nations such as the Netherlands (ranked 5th), and New Zealand (14th) (IPU December 2007). Within Australia, the pervasive attitude has been that it is only a matter of time before women reach parity with men in the parliament. Yet if the current pace of change continues it will still be many decades before such a goal is achieved. While the number of women in federal parliament has risen apace since the 1970s (see Figure 6.1), the path to progress is not a smooth one. A general trend towards advancement has been tempered by periods of retreat. For instance, after the 2004 election women’s level of representation in the House of Representatives fell (from 25.3 to 24.7 per cent), primarily because both major parties stood fewer women candidates than they had in the previous elections (Sawer 2006, 2). The 2007 results increase by two the number of women in the House of Representatives (40:150 members) and increase by five the number of women senators (27:76). Despite more ALP

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women winning seats in the 2007 election (up from 20 to 27), male ALP members actually strengthened their numerical dominance and now hold 67 per cent of all ALP seats (up from 66 per cent in the previous election). As Tony Smith (2008, 7) reflects: ‘In the Forty-second Parliament, male MPs can feel relaxed that no revolution threatens their presence or their power’. Figure 6.1 demonstrates a marked difference between the two major political parties in terms of their representation of women: the number of Liberal Party representatives has declined in the last three elections while ALP numbers continue to increase. This increase is largely due to the implementation by the ALP of a quota system that requires that, by 2012, 40 per cent of all party positions be held by women. Although the major parties have dominated Australian politics, minor parties have provided greater opportunities for women’s representation; they have tended to be more supportive of women candidates and have a higher percentage of female MPs. For instance, in 2006 the Greens had the highest proportion of women (53.3 per cent) but only 15 parliamentarians Australia-wide (Sawer 2006). Historically, the Australian Democrats (AD) have demonstrated a strong commitment to gender equality. Women were well represented in the party’s leadership positions (especially federal leadership positions) and have held over one-third of all AD senator positions in the federal parliament. The decline in the Democrats’ electoral fortunes in the early years of the 21st century has closed off an important avenue for women’s representation in the federal parliament. Having cleared the first hurdle of getting elected, there is no guarantee that women will be selected for key government positions. During Howard’s last term in office, women held only two of the 18 Cabinet posts (Maddison and Partridge 2007, 59). In the first Rudd ministry, female representation has improved somewhat, with women taking four of the 20 Cabinet positions, the most senior of them being Julia Gillard, who has become Australia’s first female deputy prime minister. While these improvements are important, they need to be put in context: ‘The enthusiasm for women holding almost a quarter of leadership positions ignores the fact that women hold almost a third of Labor’s House seats’ (Smith, 2008, 7). Women also struggle to gain equal representation in state and local governments as well as in public service, judicial and private sector posts. As of February 2008, women held no more than 38.2 per cent of the seats in

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any state house of parliament (WA Legislative Council), with the Northern Territory having the highest proportion of women MPs at 40 per cent (Australian Parliamentary Library 2008.) A 2007 report into Australian women and democracy by Maddison and Partridge (2007a) highlights other imbalances. In local government, women comprise on average 27.8 per cent of all councillors, and only one-third of all senior public service positions are held by women. Within the judiciary women comprise a much smaller percentage of judges than men at all levels. In over 105 years, only four women have ever sat on the Australian High Court: former Justice Gaudron and current Justices Crennan, Kiefel and Bell. In lower level courts, the figures are only slightly better; women hold approximately 12 per cent of current Federal Court justice positions and just over 18 per cent of all judicial positions across the states and territories (see Maddison and Partridge 2007a, 70–1). Women fare even worse in senior positions in the private sector. In 2006 women comprised only 8.7 per cent of board directors in the top 200 companies, a figure virtually unchanged since 2002 (Horin 2008). Addressing gender-based disadvantage in the political realm will continue to be a challenge for Australian governments. The CEDAW Committee has called on Australia to adopt a more proactive approach that includes quotas and targets in preselection processes, such as the ALP has done, as well as for the parliament itself (2006, 3). International models for such a system exist, such as those in India and Rwanda, where there are reserved seats for women in parliament and which have produced quite surprising results (for instance, women now comprise 48 per cent of the Rwandan parliament). In Australia, when options to achieve gender parity in parliament have been raised, such as the suggestion made in the mid 1990s by former Liberal MP Jim Carleton that each electorate elect two members, one male and one female, it gained little political or public support (Brennan 1997, 272).4 One thing that is clear is that women’s levels of representation will not change without ongoing pressure from gender equality activists. The decision by the Rudd government to appoint one woman (the actor Cate Blanchett) from a panel of 10 to co-chair the 2020 Ideas Summit to discuss Australia’s future is an important reminder of the effort that still needs to be made to ensure that women have their voices heard within the Australian polity. Commenting on the summit appointments, journalist Adele Horin neatly captured the problem:

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We should have no need to calculate gender imbalance in 2008. We should be able to put our minds to the high-minded topics the Government wants us to address – the future of the environment, social inclusion, the cities, the economy . . . instead of acting like a bunch of accountants. But unfortunately someone has to do the counting. And it is always the minority. Every time women stop adding up, someone subtracts them. Every time women plead feminist fatigue and put their calculators away, the rate of increase slows down. (2008)

Personal safety Many women, in Australia and throughout the world, continue to live in situations where their most fundamental human rights are threatened due to acts of violence, most of which occur in the domestic realm. Violence against women does not violate any single right, but violates multiple rights simultaneously, including the right to life, the right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment, the right to liberty and security of person, the right to equal protection under the law and the right to equality in the family. Acts of violence against women can also interfere with their enjoyment of physical and mental health and with their right to just and favourable conditions of work. Despite its prevalence and pervasiveness, violence against women has not always been recognised as a violation of women’s fundamental rights. As noted above, when the CEDAW was being formulated in the 1970s, no mention was made of the need to uphold women’s right to personal security, partly because the problem was largely hidden due to the fact that most violence against women occurred within the family and was considered a domestic matter that was out of bounds for law makers and enforcers. As a result of international women’s rights activism on the issue since the mid 1970s, violence became recognised as a significant problem at the national and international levels (see Joachim 1999, 142). The CEDAW Committee responded, and in 1992, it clarified how violence against women was to be understood in the context of the Convention. It stated: The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or

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sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence. (1992)

The Committee’s recommendation required governments to take action and to report on efforts to eliminate violence against women in the public sphere, and also to act with due diligence to prevent private acts of violence. This strong international statement was bolstered by the 1993 Declaration on the Elimination of Violence against Women and the statements on violence in the 1995 BPFA. Those seeking to improve women’s rights in the area of security face two particular hurdles. The first, alluded to earlier in this chapter, relates to the fact that most violence against women occurs in the private realm of the family. In most societies, including in liberal states such as Australia, this realm is considered to be outside the purview of government. In theory, it is expected that government leave the regulation of the private realm to individuals within the family.5 In practice, this leaves power with those most likely to perpetrate violence against women – male partners and fathers. It also raises a second challenge: the need to break down institutionalised gender norms within the family and society more broadly. As feminist political scientist S. Laurel Weldon notes: [D]eveloping policies to address violence against women (unlike say, maternity leave policies or mothers’ pensions) are hard to formulate without challenging traditional gender roles: they challenge male dominance in the family and unfettered male sexual access to women. (Weldon 2004, 14)

The 2005 ABS National Personal Safety Report highlights the fact that Australian women continue to experience violence at the hands of their intimate male family members in frightening numbers. The survey found that since the age of 15, 33 per cent of all women had experienced physical violence and 19 per cent had experienced sexual violence. Of those women who were physically assaulted in the previous 12 months, 31 per cent (73 800) were physically assaulted by a current and/or previous partner compared to 4.4 per cent (21 200) of men. Of the women who had been sexually assaulted, 90 per cent knew their attacker. Another report, written in 2003

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by the Australian Institute of Criminology, found that of all intimate partner homicides, three-quarters involved a male killing their female partner (in Phillips and Park 2006). On the point of men’s unfettered sexual access to women, it is worth remembering that in Australia, it was not until 1991 that the High Court finally ruled to remove the common law immunity of the husband in respect to the rape of his wife (R v L (1991)); before this ruling, it had been accepted under Australian law that the crime of marital rape was impossible on account of the fact that women were subsumed under the legal personality of their husbands upon marriage (see Gaudron 1999). As with other areas of women’s rights, women’s personal safety is enjoyed to a lesser or greater extent by different groups of women. Indigenous women are particularly vulnerable to violence. Although there are many difficulties in gaining an accurate picture of the extent to which Indigenous women suffer violence due to a range of cultural issues and the problem of underreporting, there is no doubt that violence exists in endemic proportions in many Indigenous communities. The 2004 International Violence Against Women Survey (IVAWS) suggests that the rate of family violence victimisation for Indigenous women may be as high as 40 times the rate for non-Indigenous women and that despite Indigenous women representing just over 1 per cent of the total Australian population, they accounted for 15 per cent of homicide victims in Australia in 2002–3 (cited in Carrington and Phillips 2006). Indigenous women’s understanding of violence differs in some important ways to that of other women. In particular, the problem of violence is understood to stem not only from gender but also from racial discrimination. As Australian writer Melissa Lucashenko points out: Black women have been torn between the self-evident oppression they share with Indigenous men – oppression that fits uneasily if at all into the frameworks of White feminism – and the unacceptability of those men’s violent sexist behaviours toward their families. (1997, in Nancarrow 2006, 89)

Instead of using the language of domestic violence, many in the Indigenous community prefer the term ‘family violence’ because it is a broader concept that ‘encompasses all forms of violence in intimate, family and other relationships of mutual obligation and support’ (cited in Keel 2004). Such a

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conceptualisation of the problem calls for a different government response. As a result, strategies for addressing family violence in Indigenous communities need to acknowledge that a consequence of this is that an Indigenous woman may be unable or unwilling to fragment their identity by leaving the community, kin, family or partner as a solution to the violence. (HREOC 2006, 6)

The disturbing statistics on women’s experience of male violence across all sectors of society demonstrate Weldon’s point about the ongoing strength of a gender-based and – in relation to Aboriginal Australians – a race-based power imbalance within many personal relationships. By contrast, there are some signs that norms around state non-intervention in the private realm to protect women’s right to security are gradually weakening. Over the period of the past three decades, ALP and Coalition governments at the federal, state and territory levels have introduced policies and programs that aim to develop a coordinated national response to domestic violence (Chappell 2001). The role of women’s policy agencies in developing these reforms cannot be underestimated and makes their demise all the more worrying (see Sawer 2007; Chappell 2006b). Today in Australia laws exist across all jurisdictions to prosecute perpetrators of domestic violence and of sexual assault and to protect victims through apprehended violence orders (AVOs), refuges and government information lines. These measures, while laudable, are not without limitations. Issues around the willingness of police to use their arrest powers and the implementation of AVOs is one set of problems (see Holder 2007); women’s reluctance to report violence is another. This reluctance is the result of a number of problems, including fear of reprisal. The confrontational nature of the adversarial court system, in which women victims are often left feeling as though they are the ones on trial, is another barrier to reporting (see Phillips and Park 2006). As with other areas of women’s rights, personal safety remains an area where Australia fails to live up to international standards. In a comparative study of all OECD countries undertaken in 2006, Australia (along with Austria and the Netherlands) was found to have the highest incidence of reported sexual assault crimes (OECD 2006). In assessing Australia’s response to this important area of women’s rights, the CEDAW committee stated that it

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remains concerned about the continuing prevalence of violence against women, as well as by the low rates of reporting, prosecutions and convictions in sexual assault cases. It is concerned that laws that protect victims of violence and require perpetrators of domestic violence to leave the family home are not regularly enforced. It is also concerned about the high levels of violence . . . in Indigenous, refugee and migrant communities.

The policies introduced by Australian governments to address domestic violence are an acknowledgement by the state of its role in protecting women’s right to security of the person; however, in order to enable all Australian women to fully enjoy their rights to liberty and security of the person, and in order to fulfil its human rights commitments, the government must take further steps to protect women from violence in the home, including enacting public policies and laws that are aimed at addressing the gender power imbalance that persists between men and women. It must also remain sensitive to the different needs and issues confronting different groups of women. From a political perspective, these are radical steps not easily introduced due to established norms concerning non-intervention in the private realm, as well as the relative power of men vis-`a-vis women and white Australians vis-`a-vis Indigenous and people of other backgrounds. Without such steps, the human rights of many Australian women will continue to be violated. Despite the fact that Australia ratified CEDAW over 25 years ago, Australian women still do not enjoy the standards set by the Convention, nor are their rights equal with those of Australian men. Whether we consider rights from an economic, social or political perspective, there exist significant gaps in terms of gender equality and certain women suffer as a result of these gaps more greatly than others. Indigenous women, for example, are much more vulnerable than white women and, as the following section highlights, lesbians suffer from gender-based disadvantage that stems from their sex and their sexuality. There are multiple reasons for these gaps, including the reliance on an understanding of traditional gender-blind conceptions of human rights, weak international enforcement mechanisms, the election of certain governments who are uninterested in advancing a human rights agenda, the absence of a bill of rights that enshrines gender equality and a general lack of concern about gender equality in Australian political culture. As the next section demonstrates, each of these factors also shapes the experiences of Australian homosexuals in terms of their access to rights.

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Sexuality rights Australians who are gay, lesbian, bisexual, transgender and intersex (GLBTI) in their sexual orientation have traditionally shared with women a fundamental impediment when it comes to accessing and enjoying their human rights: an unwillingness and/or inability on the part of the state to recognise these groups as full and equal citizens. In fact, it is the gendered nature of the state that gives rise to this differential treatment. Whereas women’s struggle to be treated equally has revealed the masculine bias inherent in conceptions of citizenship, the homosexual struggle has revealed the state’s equally strong heteronormative characteristics (Johnson 2003, 46). These biases influence ideas about citizens’ rights and entitlements and have the effect of discriminating against those who fall outside the norm in many areas of government policy. As a result women and homosexuals have struggled to recast the notion of Australian citizenship from a white, male, heterosexual model to one more expansive along gender and sexuality lines. In this section the nature of discrimination faced by GLBTI Australians is considered as are the government responses to their demand for equal treatment. Although homosexuality has been systematically decriminalised in every jurisdiction over the last three decades, Australians who are outside the heterosexual mainstream are yet to enjoy equal rights, especially in such areas as employment, and relationship and family recognition. A particular problem for this minority is the absence of formal protection measures for sexual rights in international or national law, which leaves it in a precarious and vulnerable position. On what grounds should sexuality be considered the basis for human rights protection? What principles should any formal sexuality rights protection measures be based upon? Human rights theorist Jack Donnelly has considered these questions at length. As he argues, historically, as well as in many contemporary societies, discrimination against sexual minorities has been justified on the basis that those in these minorities are somehow deviant because of the way they have transgressed gender roles and/or because they are seen to be engaged in immoral acts. They are those despised and targeted by ‘mainstream’ society because of their sexuality . . . Like victims of racism, sexism and religious persecution, they are human beings who have been identified by dominant social groups as

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somehow less than fully human, and thus not entitled to the same rights as ‘normal’ people, ‘the rest of us’. (Donnelly 2001, 554)

Donnelley goes on to point out that human rights cannot be disregarded because law makers and society in general might not like a person’s actions. Each person has equal rights because they are human, not because they are deemed good or bad. As Donnelly asserts, ‘[h]uman Rights do not need to be earned. And they cannot be lost because one holds beliefs or leads a particular lifestyle, no matter how repugnant most others in a society find them’ (2001, 562).6 There is a conspicuous silence in international human rights texts on the issue of sexuality rights. Reflecting the period in which they were written, the Universal Declaration of Human Rights (UDHR), ICCPR and the ICESCR do not provide any prohibition for discrimination against sexual minorities. Indeed, at the international level, it is only in the past decade that the rights of GLBTI people have received any recognition at all and it was not until the 1993 Vienna World Conference on Human Rights that any gay and lesbian organisation gained accreditation to participate in any UN forum (Sanders 1996, 67; Mertus 2007). Many states continue to oppose the development of rights in this area for religious and cultural reasons (Sanders 1996, 68). Such opposition has made it difficult for lesbians and gay men to have rights issues addressed in more informal international settings, such as the Beijing FWCW (see Otto 1996; Chappell 2006a), and impossible for them to garner state support for a stand alone declaration or convention that would codify these rights. Even so, this has not stopped activists working to advance an international consensus on sexuality rights. One expression of this activism is the Yogyakarta Principles, a statement made in 2006 by a range of NGOs, academics, judges and UN officials, that confirmed all international human rights laws applicable to gay, lesbian, transsexual and intersex people (see Yogyakarta Principles 2006). Although not an official UN document, these principles,which cover 28 human rights areas, including civil, political, social and economic rights, are a first step in gaining broader international and national acceptance of the rights of sexual minorities. The absence of an international guarantee of sexual rights creates a fundamental problem for GLBTI people internationally and domestically (see Mertus 2007). As in relation to women’s rights and CEDAW, while states may not fully implement these treaties, they are an essential tool for holding

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government to account in key areas of human rights. Without an explicit statement within the UN human rights framework on the prohibition of discrimination against sexual minorities, those seeking the protection of these rights have had to rely upon sporadic textual interpretation of existing international treaties, such as in the Toonen case in which the UN Human Rights Committee relied on the right to privacy as the basis for upholding Toonen’s appeal (Donnelly 2001, 565; see also below and chapter 2). Otherwise, those in same-sex relationships have had to look domestically to have their rights upheld. The following discussion of the Australian case will demonstrate that these rights can be very slow in coming and, when they do come, inconsistent, depending upon the nature of the right and the jurisdiction. Before considering the details of the Australian case concerning homosexual rights it is important to note, because of its federal system, that the pattern of advancement of homosexual rights has not been uniform across the country but has varied among states and territories as well as between states and territories and the Commonwealth across time. States and territories are very important to the story of GLBTI rights in Australia because they have the Constitutional power to enact criminal and anti-discrimination law and control significant aspects of the health and education systems. While the Commonwealth maintains Constitutional authority in the area of marriage, states have responsibility for some areas of family law, including certain aspects of property law. Comparative research on the issue of recognition of legal rights for homosexuals suggests that liberal democratic governments have tended to support gradual law reform. According to Dutch legal scholar Kees Waaldijk, in the European context this reform has followed a consistent pattern: 1 2 3 4 5 6

a total ban on homosexual relationships the decriminalisation of sex between adults the equalisation of the age of consent the introduction of anti-discrimination legislation the introduction of legal partnership the recognition of homosexual parenthood.

For Waaldijk, this pattern represents one of gradual inclusion; it progresses from hostility to minimal toleration through to active recognition and

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support (Waaldijk, in Donnelly 2001, 566). In respect of the sequence of law reform, Australia fits this pattern very well, although, as we shall see, the process is far from complete. In Australia, decriminalisation of homosexuality was the first step taken towards expanding rights for sexual minorities. Interestingly, lesbian sex was never outlawed in Australia, not because it was tolerated, but because when many criminal laws were being written, it was an act of deviance incomprehensible to law makers (Summers 1975, 159). The decriminalisation of gay male sex commenced in 1972 in the Australian Capital Territory and the Northern Territory (two jurisdictions under direct federal control). South Australia was the first state to reform laws in this area in 1975, while Tasmania was the last to do so, failing to act until 1997 (for details on all states and territories, see Maddison and Partridge 2007b). The Tasmanian reforms emerged after a protracted dispute with gay rights activists Rodney Croome and Nick Toonen, who sought to overturn the state’s laws, which criminalised ‘unnatural sexual intercourse’. In 1991 Toonen used the Optional Protocol provisions of the ICCPR to bring a case before the UN Human Rights Committee (HRC) on the grounds that the Tasmanian laws violated his right to privacy (see Gelber 1999). The HRC upheld Toonen’s appeal, and in response, the Keating Labor federal government intervened to override the Tasmanian laws by sponsoring the Human Rights (Sexual Conduct) Act 1994. The Act did not confer sexuality rights under Australian law but outlawed arbitrary interference in the right to sexual privacy (see Gelber 1999, 333–4). Once decriminalisation occurred and homosexual relationships were given a modicum of recognition, it became possible to introduce other reforms to uphold sexual rights. Equalisation of the age of consent across the states commenced in 2000 and has occurred within all states and territories except Tasmania and Queensland. From the mid 1980s on, all states and territories included some protection for sexual orientation or sexuality under their anti-discrimination legislation. However, such reforms have some serious limitations. As Maddison and Partridge point out, ‘these laws are inconsistent, often containing significant exemptions, meaning that individuals are provided with varying levels of legal protection based on their geographic location’ (Maddison and Partridge 2007b, 11). As with genderbased discrimination, these laws rely on individual complaints, which can be intimidating for those experiencing the discrimination.

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The uneven rights protection available to GLBTI Australians was made obvious in 2007 with the release of the HREOC’s National Inquiry into Discrimination Against People in Same-Sex Relationships. The inquiry, which was limited to the area of federal financial and work-related entitlements, found 58 pieces of federal legislation that discriminated against same-sex couples. Such laws included those relating to employment, workers’ compensation, tax, social security, veterans’ entitlements, health care, superannuation, aged care and immigration (see HREOC 2007). Many of the sections in existing legislation were found to be discriminatory because they did not recognise same-sex partnerships or the children within these relationships. During the course of the inquiry, HREOC also identified existing discriminatory provisions in various state laws, including in the areas of education, health, Aboriginal land, rural finance, wills and property, but it noted that this was by no means a comprehensive list (see HREOC 2007, 359). On coming to office in 2007, Labor Attorney-General Robert McClelland took up a recommendation of the HREOC inquiry and conducted an audit across all federal policy areas; the inquiry found many additional discriminatory laws, including some in the areas of education and privacy. In April 2008, the attorney-general announced a reform package to remove many of the discriminatory provisions of federal law (Australian 2008; Attorney-General 2008b). The question of relationship recognition for GLBTI Australians, highlighted in the HREOC report, is far from settled. The Commonwealth retains power over marriage but neither the former Coalition government nor the current Labor government has been prepared to introduce reforms to allow same-sex unions. Indeed, in 2004 the Howard government amended the Marriage Act to define marriage as a union between a man and a woman, with the express purpose of underlining that it did not recognise unions between same-sex couples in Australia or those created by Australians while resident in foreign countries. Since coming to office the Rudd government has consistently stated its opposition to gay marriage (including civil unions) (see Australian 2008). Recognition of same-sex partnerships has been granted on the same basis as heterosexual de facto relationships in relation to certain laws, but it is by no means uniform across jurisdictions (see Maddison and Partridge 2007b 20–1) and these measures do not provide the same protection as a federally endorsed legal marriage. Curiously, given its earlier intransigence on the

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protection of sexual rights, Tasmania has taken the lead in this area, becoming the first jurisdiction to allow the registration of same-sex partnerships with the State Registry of Births, Deaths and Marriages (Croome 2006, 182). The registration does not confer marriage rights on the registering couples but ‘certifies that a relationship exists, allows couples to access rights and protections, and officially affirms the value of a couple’s love and commitment’ (Relationships Tasmania 2008). A similar system came into effect in Victoria in 2008 (Rood 2007). In 2006 the Australian Capital Territory government, under Jon Stanhope, passed the Civil Unions Act. It too was aimed at providing a legal basis to same-sex partnerships, but unlike the Tasmanian and Victorian laws, made provision for a ceremony to accompany the formal registration of the relationship. The Howard government opposed the legislation on the basis that it contravened the Commonwealth Marriage Act and then used its Constitutional authority to override the Australian Capital Territory legislation (Maddison and Partridge, 2007b, 21). Moves in 2008 by the Australian Capital Territory Labor government to reintroduce legislation for civil unions were again opposed, this time by the Rudd government, which stated instead its support for a national registration system along the lines of Tasmania’s (Karvelas 2008). This response by the federal Labor government came as no surprise to political scientist Carol Johnson, who suggests that this is the latest version of a longstanding tendency in Australian politics for even those supporting same-sex law reform to suggest that, unlike heterosexuality, same-sex love should stay to some extent a private matter, hidden from public view. (2008, 2)

Alongside relationship recognition, the recognition of gays and lesbians to equal parenting rights remains unresolved. As the 2007 HREOC inquiry found, without such recognition, not only same-sex parents, but also the children of these unions, are discriminated against in terms of government services and the protection of family law. According to Australian Human Rights Commissioner Graeme Innes: Of the estimated 25,000 plus same-sex couples in Australia, approximately 20 per cent of lesbian couples, and 5 per cent of gay male couples, are raising children. Federal laws, and some state and territory laws, fail to recognise

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both same-sex parents as genuine parents. The consequence is that samesex families are frequently denied access to entitlements, such as subsidised medical costs, which are intended to help parents financially support their children. (2008)

During the years of the Howard government, the issue of recognising same sex-headed families was raised on numerous occasions. A low point in the history of discrimination against same-sex parents came about in 2000 when the Coalition introduced a bill to amend the Sex Discrimination Act for the express purpose of blocking single women and lesbians from accessing artificial reproductive technology (see Chappell 2001). In the view of the prime minister, the issue ‘primarily involves the fundamental right of a child within our society to have the reasonable expectation, other things being equal, of the care and affection of both a mother and a father’ (Howard 2000). Later, the prime minister reiterated the point that families should include only a male and a female partnership because a marriage was very much about ‘the raising of children . . . and the continuation of our species’ (Howard, in AAP 2003). The statements made by McClelland in response to the HREOC inquiry suggest that the Labor government would take a different position to the previous government and reform most areas of federal legislation that discriminate against the families of same-sex couples (AttorneyGeneral 2008b). Indeed, in 2008 the government amended 84 Commonwealth laws to remove discrimination against same-sex couples. But the inability to enjoy equal marriage rights continues to be a sticking point. Australian same-sex couples need formal recognition of their relationships (as well as the dissolution of these relationships) to ensure that they enjoy the same rights as heterosexuals when it comes to the issues of child custody and property division. Australia fits the more general pattern of law reform for GLBTI rights found in other liberal democracies. As per the sequence identified above by Waaldijk, Australia has moved through periods of decriminalisation, to the equalisation of age of consent and the introduction of anti-discrimination laws, although discrimination in the areas of formal recognition of relationships and parenting persists. It can be argued, then, that in Australia the support for equal rights for this minority remains at the level of toleration rather than active recognition and support. The first Australian Survey of Social Attitudes bears out this claim. It showed that only 34 per cent of respondents support same-sex marriage while 42 per cent agree that

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same-sex couples with children constitute a family (Evans and Gray 2005, 19–20). While the majority continues to hold such views, it is likely that politicians will be reluctant to remove the last formal impediments to equal rights for the homosexual community. Clearly, the campaign for equal gay and lesbian rights in Australia still has some way to go.

Conclusion In Australia, women and homosexuals have confronted unequal access to civil, political and economic rights because neither women nor gays and lesbians fit easily within traditional conceptualisations of human rights. Falling outside the masculine and heterosexual norm of the rights-bearing citizen, women and homosexuals have faced difficulties in having the realities of their lives reflected in the laws and policies that are meant to protect human rights. At times the state has deliberately discriminated against these groups, treating them as incapable of carrying out the duties expected of citizens. At other times, the discrimination has been subtle and unintended, a consequence of failing to recognise the different experiences of those who do not meet the mainstream standard. As a result, women and those from the homosexual community have had to engage in an ongoing struggle to point out to government the gaps in Australian human rights standards and the need for law reform. For Australian women, international human rights norms, especially those outlined in CEDAW and those that emerged from the Beijing Process, have been a critical tool in their struggle to achieve greater equality. Although some Australian governments have proven impervious to international shaming in the area of women’s rights (among others), these international avenues have nevertheless been important. Australian women have been able to use these international standards in conceptualising and articulating their goals and in holding governments accountable for their actions. Even with inbuilt weaknesses, these international standards are the envy of many in the homosexual community who have had to pursue their rights agenda without the backing of an agreed and internationally sanctioned statement on their specific rights. Ongoing discrimination against women and those in the homosexual community means that international instruments and human rights norms will remain a point of focus into the future. It is important that activists from both groups start engaging with efforts to

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develop an Australian bill of rights so as to ensure that any future definition of rights is free from the gender inequalities that have traditionally marred Australia’s human rights regime.

References Attorney-General, 2008a. ‘Australia Moves to Protect Women’s Rights.’ Media release. Accessed online at www.attorneygeneral.gov.au/ www/ministers/robertmc.nsf/ Page/MediaReleases 2008 SecondQuarter 23May2008-AustraliaMovestoProtectWomensRights, 6 June 2008. —— 2008b. ‘Human Rights and Equal Opportunity Commission Australia and international Human Rights: Coming in from the cold.’ Ministerial speech. Accessed online at www.attorneygeneral.gov.au/www/ministers/robertmc.nsf/ Page/Speeches 2008 HumanRightsandEqualOpportunityCommission, 6 June 2008. Australian, 2008. ‘Laws to lose same-sex discrimination.’ 30 April. Australian Associated Press, 2003. ‘Howard hits out at gay marriage.’ Age, August 5. Australian Bureau of Statistics, Personal Safety Survey Australia, 4906.0. Accessed online at www.abs.gov.au/AUSSTATS/[email protected]/DetailsPage/4906.02005%20(Reissue)? OpenDocument, 7 March 2008. Australian Electoral Commission, 2007. Electoral Milestone / Timetable for Indigenous Australians. Accessed online at www.aec.gov.au/Voting/Indigenous vote/ Indigenous.htm, 26 February 2008. Australian Labor Party, 2007. Media statement. Accessed online at www.alp.org. au/media/0707/msfcshsir130.php, 25 February 2008. Australian Parliamentary Library, 2008. Composition of Australian Parliaments by Party and Gender as of 18 February 2008. Canberra: Politics and Public Administration Section, Australian Parliamentary Library. Baird, Marian, Deborah Brennan and Leanne Cutcher, 2002. ‘A Pregnant Pause in the Provision of Paid Maternity Leave in Australia.’ Labour and Industry, 12: 4. Beijing Declaration 2005. Accessed online at www.un.org/womenwatch/daw/beijing/ beijingdeclaration.html, 21 February 2008. Brennan, Deborah, 1997. ‘Women and Political Representation.’ In Government, Politics, Power and Policy in Australia, eds Dennis Woodward, Andrew Parkin and John Summers. Melbourne: Longman. —— 2007. ‘Babies, Birthrates and Budgets.’ Social Politics, 14(1): 31–57. Bunch, Charlotte, 1995. ‘Transforming Human Rights from a Feminist Perspective.’ In Women’s Rights, Human Rights: International Feminist Perspectives, eds Julie Stone Peters and Andrea Wolper. New York: Routledge. Byrnes, Andrew, 2002. ‘The Convention on the Elimination of All Forms of Discrimination against Women.’ In Human Rights of Women: International instruments and African experiences, eds Wolfgang Benedek, Ester M. Kisaakye and Gerd Aberlinter. London: Zed.

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Carrington, Kerry and Janet Phillips, 2006. Domestic Violence in Australia: An overview of the issues. E-Brief. Online only. Issued 7 August 2003, updated by Janet Phillips, September 2006. Canberra: Parliamentary Library. Accessed online at H:\CUP\women’s rights chapter\Indigenous Dom violence.htm, 12 March 2008. Chappell, Louise, 2001. ‘Federalism and Social Policy: The case of domestic violence.’ Australian Journal of Public Administration, 60(1): 59–69. —— 2002. ‘Winding Back Australian Women’s Rights: Conventions, contradictions and conflicts.’ Australian Journal of Political Studies, 37(2): 475–88. —— 2006a. ‘Contesting Women’s Rights: Charting the Emergence of a Transnational Conservative Patriarchal Network.’ Global Society, 20:4, 491–519. —— 2006b. ‘Working from Within: Women in the NSW bureaucracy.’ In No Fit Place for Women? Women and Politics in New South Wales 1856–2006, co-edited with Deborah Brennan. Sydney: UNSW Press. Charlesworth, Hilary, 1995. ‘Human Rights as Men’s Rights.’ In Women’s Rights Human Rights: International Feminist Perspectives, eds Julie Stone Peters and Andrea Wolper. New York: Routledge. Charlesworth, Hilary and Sara Charlesworth. 2004. ‘The Sex Discrimination Act and International Law’ UNSW Law Journal, 27(3): 858–65. Charlesworth, Hilary and Christine Chinkin, 2000. The Boundaries of International Law: A feminist analysis. Manchester: Manchester University Press. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1981. Introduction. Accessed online at www.un.org/womenwatch/daw/ cedaw/text/econvention.htm, 21 Feb 2008. —— (Committee). 1992. ‘General Recommendation No. 19’ (11th session, 1992) Violence against women. Accessed online at www.un.org/womenwatch/daw/cedaw/ recommendations/recomm.htm#recom19, 5 March 2008. —— 2006. ‘Concluding Comments of the Committee on the Elimination of All Forms of Discrimination against Women: Australia.’ UN Document No: CEDAW /C/AUL/CO/5. Accessed online at http://daccessdds.un.org/doc/ UNDOC/GEN/N06/237/98/PDF/N0623798.pdf?OpenElement, 4 March 2008. Croome, Rodney, 2006. ‘LGBT Rights: A National Scandal, But No-one’s Listening.’ In Time for Change: Australia in the 21st Century, ed. Tim Wright. Melbourne: Hardy Grant Books. Curtin, Jennifer and Heather Devere, 2006. ‘Global Rankings and Domestic Realities: Women, work and policy in Australia and New Zealand.’ Australian Journal of Political Science, 41(2): 193–207. Donnelly, Jack, 2001. ‘Non-discrimination and Sexual Orientation: Making a place for sexual minorities in the global human rights regime.’ In The Philosophy of Human Rights, ed. Patrick Hayden. St Paul: Paragon House. Eisenstein, Hester, 1996. Inside Agitators: Australian Femocrats and the State. Sydney: Allen & Unwin. Engle, Karen, 2005. ‘International Human Rights and Feminisms: When discourses keep meeting.’ In International Law: Modern Feminist Approaches, eds Doris Buss and Ambreena Manjo. Oxford: Hart Publishing. Evans, Ann and Edith Gray, 2005. ‘What Makes an Australian Family?’ In Australian Social Attitudes: The first report, eds Shaun Wilson, Gabrielle Meagher, Rachel Gibson, David Denemark and Mark Western. Sydney: UNSW Press.

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Evatt, Elizabeth, 2000. ‘How Australia “Supports” the United Nations Treaty System.’ Public Law Review, 12: 3–8. Gaze, Beth, 2004. ‘The Sex Discrimination Act After Twenty Years : Achievements, disappointments, disillusionment and alternatives.’ University of New South Wales Law Journal, 27(3): 914–21. Gaudron, Mary, 1999. Occasional Address, University of Sydney. 29 October. Accessed online at www.hcourt.gov.au/speeches/gaudronj/gaudronj sydusp2.htm, 6 March 2008. Gelber, Katharine, 1999. ‘Treaties and Intergovernmental Relations in Australia: Political implications of the Toonen case.’ Australian Journal of Politics and History, 45(3): 330–46. Grattan, Michelle, 2000. ‘PM under attack for UN stand.’ Sydney Morning Herald, 6 September. Gray, Mark, Miki Caul Kittilson and Wayne Sandholtz, 2006. ‘Women and Globalization: A study of 180 countries, 1975–2000.’ International Organization, 60: 293–333. Guest, K., 1999. ‘The Elusive Promise of Equality: Analysing the limits of the Sex Discrimination Act.’ Research Paper 16. Canberra: Parliamentary Library. Holder, Robyn, 2007. ‘Police and domestic violence: An Analysis of Domestic Violence Incidents Attended by Police in the ACT and Subsequent Actions.’ Australian Domestic Violence Clearinghouse, research paper No. 4. Accessed online at www.austdvclearinghouse.unsw.edu.au/PDF%20files/Robyn Holder Research Report.pdf, 7 March 2008. Horin, Adele, 2008. ‘Sorry, wrong number: get with the times and try again.’ Sydney Morning Herald, 1 March. Howard, John, 2000. ‘Amendment to Sex Discrimination Act.’ Media release. 7 September. Accessed online at www.pm.gov.au/news/media releases/2000, 6 December 2000. Human Rights and Equal Opportunity Commission (HREOC), 2007. Same Sex: Same Entitlements. National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits. Accessed online at www.hreoc.gov.au/human rights/samesex/report/pdf/SSSE Report.pdf, 21 March 2001. —— 2006. ‘Ending Family Violence in Aboriginal and Torres Strait Islander Communities.’ Accessed online at www.hreoc.gov.au/word/social justice/ family violence2006.doc on 20 March 2008. —— 2005. ‘Striking the Balance: Women, men work and family,’ Discussion paper. Sydney: HREOC —— 2002. A Time to Value – Proposal for a National Paid Maternity Leave Scheme. Accessed online at www.hreoc.gov.au/sex discrimination/paid maternity/ index.htm, 5 March 2008. Innes, Graeme, 2008. ‘Issues in the Asia Pacific Region.’ GLBTI Human Rights Conference Closing Speech. Human Rights Commissioner, 31 January. Accessed online at www.hreoc.gov.au/about/media/speeches/human rights/2008/20080204glbti hr conf.html, 21 March 2008. International Parliamentary Union, 2007. ‘Women in National Parliaments.’ Accessed online at www.ipu.org/wmn-e/classif.htm, 26 February 2008.

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Joachim, Jutta, 1999. ‘Shaping the Human Rights Agenda: The Case of Violence Against Women.’ In Gender Politics in Global Governance, eds Mary K. Meyer and Elisabeth Prugl. Lanham: Rowman and Littlefield. Johnson, Carol, 2003. ‘Heteronormative Citizenship: The Howard Government’s Views on Gay and Lesbian Issues.’ Australian Journal of Political Science, 38(1): 45– 62. —— 2008. ‘Civil Unions in the Closet: Rudd bows to the religious right.’ On Line Opinion. Accessed online at http://onlineopinion.com.au/print.asp?article=6997, 8 May 2008. Kardam, Nuket, 2004. ‘The Emerging Global Gender Equality Regime from Neoliberal and Constructivist Perspectives in International Relations,’ International Feminist Journal of Politics, 6(1): 85–109. Karvelas, Patricia, 2008. ‘100 Laws ignore same-sex couples.’ Australian, 15 March. Keel, Monique, 2004. ‘Family Violence and Sexual Assault in Indigenous Communities: “Walking the talk”.’ Australian Institute of Family Studies Briefing No. 4, September. Accessed online at H:\CUP\women’s rights chapter\Indigenous Dom Violence 2.htm, 12 March 2008. Linkage Caucus, 2005. ‘Turning Promises into Progress: Statement of the Linkage Caucus From the 49th Session of the CSW’. 11 March. Accessed online at www.cwgl.rutgers.edu/globalcenter/policy/b10/index.html, 21 February 2008. Lovenduski, Joni and Pippa Norris, eds., 1996. Women in Politics. New York: Oxford University Press. Maddison, Sarah and Emma Partridge, 2007a. ‘How Well Does Australian Democracy Serve Australian Women?’ Report No. 8. Democratic Audit of Australia. School of Social Sciences, Australian National University. —— 2007b. ‘How Well Does Australian Democracy Serve Sexual and Gender Minorities?’ Report No. 9. Democratic Audit of Australia. School of Social Sciences, Australian National University. Mansbridge, Jane, 2005. ‘Quota Problems: Combating the dangers of essentialism.’ Politics & Gender, 1(4): 622–37. Mertus, Julie, 2007. ‘The Rejection of Human Rights Framing: The case of LGBT advocacy in the US.’ Human Rights Quarterly, 29: 1036–64. Nancarrow, Heather, 2006. ‘In Search of Justice for Domestic and Family Violence: Indigenous and non-Indigenous Australian women’s perspectives.’ Theoretical Criminology, 10(1): 87–106. Office for Women, 2007. Women in Australia 2007. Accessed online at www.ofw.facs.gov.au/publications/wia 2007/default.htm, 5 March 2008. Organisation for Economic Cooperation and Development (OECD), 2006. ‘Quality of Life: Crime.’ Accessed online at http://fiordiliji.sourceoecd.org/pdf/ fact2006pdf/10–04-02.pdf, 1 May 2008. Otto, Diane, 1996. ‘Holding Up Half the Sky, But for Whose Benefit? A critical analysis of the Fourth World Conference on Women.’ Australian Feminist Law Journal, 6: 7–28. Phillips, Anne, 2006. ‘Dealing with Difference: A politics of ideas or a politics of presence.’ In Contemporary Political Philosophy: An anthology, eds Robert E. Goodin and Phillip Pettit. Oxford: Blackwell.

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Phillips, Janet and Malcolm Park, 2006. ‘Measuring Domestic Violence and Sexual Assault Against Women: A review of the literature and statistics.’ Parliamentary Library E-Brief. Accessed online at www.aph.gov.au/library/intguide/SP/Violence AgainstWomen.htm, 19 February 2002. Pocock, Barbara and Helen Masterman-Smith, 2006. ‘Early Signs: The Impact of WorkChoices on Work and Family.’ Centre for Work + Life, University of South Australia. Accessed online at www.unisa.edu.au/hawkeinstitute/cwl/default.asp, 20 February 2008. Productivity Commission, 2007. ‘Overcoming Indigenous Disadvantage: Key indicators 2007.’ Accessed online at www.pc.gov.au/gsp/reports/Indigenous/ keyindicators2007, 3 March 2008. Rao, Arati, 2001. ‘Right in the Home: Feminist Theoretical Perspectives on International Human Rights.’ In The Philosophy of Human Rights, ed. Patrick Hayden. St Paul: Paragon. Relationships Tasmania, n.d. ‘The Tasmanian Relationship Act.’ Accessed online at www.relationshipstasmania.org.au/index.html, 1 May 2008. Rood, David, 2007. ‘Register for gay, de facto couples.’ Age, December 5. Ryan, Susan, 2004. ‘The “Ryan Juggernaut” rolls on’. University of New South Wales Law Journal, 27(3): 828–32. Rudd, Kevin, 2007. Doorstop Interview. 8 November. Accessed online at www.alp. org.au/media/1107/dsiloo080.php, 21 March 2008. Sainsbury, Diane, 2004. ‘Women’s Political Representation in Sweden: Discursive Politics and Institutional Presence.’ Scandinavian Political Studies, 27(1): 65–87. Sanders, Douglas, 1996. ‘Getting Lesbian and Gay Issues on the International Human Rights Agenda.’ Human Rights Quarterly, 18: 67–106. Sawer, Marian, 1990. Sisters in Suits: Women and Public Policy in Australia. Sydney: Allen & Unwin. —— 2006. ‘Paradise Postponed: Women and the House of Representatives.’ Discussion paper 3/06. Democratic Audit of Australia, Australian National University. —— 2007. ‘The Fall of the Femocrat’, in Joyce Outshoorn & Johanna Kantola (eds), Changing State Feminism, Palgrave Macmillan. Service Canada, 2008. ‘Employment Insurance (EI) and Maternity, Parental and Sickness Benefits.’ Accessed online at www1.servicecanada.gc.ca/en/ei/types/ special.shtml#Maternity35, 26 February 2008. Smith, Tony, 2008. ‘The Forty-second Australian Parliament: Increased threat to male dominance?’ Australian Policy Online, 4 February. Accessed online at www.sisr.net/apo/smith.pdf, 3 March 2008. Sullivan, Barbara, 1990. ‘Sex Equality and the Australian Body Politic.’ In Playing the State: Australian feminist interventions, ed. Sophie Watson. Sydney: Allen & Unwin. Summers, Anne, 1975. Damned Whores and God’s Police: The colonisation of women in Australia. Melbourne: Pelican. Vickers, Jill, 2006. ‘The Problem with Interests: Making Political Claims for Women.’ In The Politics of Women’s Interests: New Comparative Perspectives, eds Louise Chappell and Lisa Hill. Milton Park: Routledge.

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Weldon, S. Laurel, 2004. ‘The Dimensions and Policy Impact of Feminist Civil Society.’ International Feminist Journal of Politics, 6(1): 1–28 West, Lois, 1999. ‘The United Nations Women’s Conferences and Feminist Politics.’ In Gender Politics in Global Governance, eds Mary K. Meyer and Elisabeth Prugl. Lanham: Rowman and Littlefield. Women in Social and Economic Research, 2006. ‘Women’s pay and conditions in an era of changing workplace regulations: Towards Women’s Employment Status Key Indicators.’ WESKI database. Perth: Curtin University of Technology. United Nations, 1979. Convention on the Elimination of All forms of Discrimination Against Women. Accessed online at www.un.org/womenwatch/daw/cedaw/ index.html, 21 February 2008. United Nations Division of the Advancement of Women, Convention on the Elimination of all Forms of Discrimination against Women, Short History of the CEDAW Convention. Accessed online at www.un.org/womenwatch/daw/cedaw/history.htm, 3 March 2008. —— 1993. Declaration on the Elimination of Violence Against Women. G.A. resolution 48/104, 48 U.N. GAOR Supp. (No. 49) at 217. UN Document A/48/49. Accessed online at www1.umn.edu/humanrts/instree/e4devw.htm, 5 March 2008. Yogyakarta Principles, 2006. Accessed online at www.yogyakartaprinciples.org/ principles en.htm, 8 June 2008.

Chapter Seven

REFUGEES

When he announced during the 2001 federal election campaign that ‘We will decide who comes to this country and the circumstances in which they come’ (Australian Politics 2001), former Prime Minister John Howard signalled that asylum seekers had become a central part of national political debate. Against a background of increased terrorist activity directed towards Western nations, the prime minister’s words suggested that Australia needed to prioritise the protection of its own borders, even if that meant turning its back on those fleeing persecution. The contrary view – that Australia had international obligations to assist refugees, regardless of how they arrived in Australia – had, with bipartisan support, held sway in Australia for decades. This chapter examines how the dramatic change in policy priorities came about in 2001, and considers the major policy changes that were introduced at that time. It also examines how those changes have been altered, and in some cases tempered, in the years since. Particular attention is paid to the debates that were waged in 2001 and subsequently about the consistency of Australia’s policies with international law, as well as the extent to which national political priorities were able to override concerns about Australia meeting its international obligations. More than just exploring the changes to refugee policy, this chapter will show that the treatment of asylum seekers – those people seeking recognition as refugees – in some ways exemplifies the limitations of Australia’s system of rights protection. That system, as this book has already shown, allows majoritarian rights claims normally to be pursued quite effectively

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through parliaments. Yet with no significant rights instruments, such as a comprehensive national bill of rights in either constitutional or legislative form, minority groups have long been vulnerable in Australia to the wishes of the majority, even when it comes to protection of their most basic rights. Just as parliaments have failed Australia’s most marginalised minority group, Indigenous Australians, this chapter will demonstrate how refugees were equally vulnerable in 2001 when it suddenly became politically expedient to curtail their ability to come to Australia and remain here. In many ways this lack of a tradition of protecting minority rights is most clearly displayed in Australia’s post-2001 reluctance to render its refugee policies consistent with international norms. Trenchant international and domestic criticism greeted Australia’s 2001 policy changes, and yet the policies remained largely unchanged until the Rudd government’s election in 2007. Australia’s stance in this regard, which essentially saw it argue that it would be undemocratic for international norms to override the wishes of a domestic majority, showed the nation’s utilitarian version of democracy at perhaps its most ruthless.

The refugee policy compromise The formulation of a country’s refugee policies will inevitably involve a compromise between the desire to maintain a cohesive national population and the willingness to assist in the resettlement of some of the world’s estimated 32 million people whom the United Nations High Commissioner for Refugees (UNHCR 2008) attempts to assist. For liberal democracies such as Australia, that compromise requires balancing the demands of democracy and liberalism (Parkin 2006; see also Taylor 2000, pt iv). The democratic impulse is to yield to the demands of constituents, who will tend to prefer the value of a cohesive national population over the altruism of sheltering war-ravaged civilians. Liberalism, meanwhile, will encourage sympathy for the injustices suffered by refugees and permit them, where possible, to live in a new country free from persecution. Australia’s compromise position changed significantly in 2001 and this change received bipartisan support among the major political parties. It is for this reason that talk of the pre-2001 and post-2001 refugee regime in Australia is possible.

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The clearest international statement about the duty of countries to protect refugees comes in the form of the 1951 Convention Relating to the Status of Refugees, which was drafted at the end of the Second World War. That convention, to which Australia acceded in 1954, defined as a refugee (Article 1) any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

Initially confined to pre-1951 events, the Convention was later extended by the 1967 Protocol Relating to the Status of Refugees to cover current events. The term ‘persecution’ is not defined, but it has most commonly been found to apply to the oppression of religious and ethnic minorities. Other forms of persecution, such as that routinely suffered in private by women in many societies, have been notoriously absent from recognition in the determination of refugee status, with only the more public forms of persecution tending to qualify (although in 2003 the High Court of Australia (S395/2002 v Minister for Immigration) found that two Bangladeshi men could properly be considered refugees because their homosexuality rendered them liable to persecution in Bangladesh). The other notable limitation of the Convention is its application only to people who are ‘outside the country’ of their ‘nationality’, which provides no relief to internally displaced people.

Pre-2001 refugee policies in Australia The history of persecution of course predates the drafting of the United Nations Refugees Convention. While this chapter does not aim to outline that history, it is important to note, before examining recent events in Australia, that Australia’s historically good reputation and long involvement with the United Nations in the resettlement of refugees must be placed alongside the nation’s longer history of racial exclusion. The White Australia Policy, one of the foundational elements upon which the Australian nation was formed in 1901, ensured that the country’s immigrants would be

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largely white and European. The persecution of minorities in Europe in the lead-up to, during and after the Second World War created large numbers of refugees, and Australia, which needed to ‘populate or perish’, chose to accept refugees and other immigrants in unprecedented numbers (see McMaster 2001, 42–4). Australian government records (Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) 2005, 18) indicate that Australia took in around ‘170 000 displaced persons from Eastern Europe between 1947 and 1954’. The dismantling of the White Australia Policy, which took place between the late 1960s and the early 1970s (Tavan 2005, 235–9), coincided with the arrival by boat of refugees from Asian countries. This differed from the postwar refugee resettlement program because now the refugees were arriving in Australia unannounced. It was one thing to decide on a person’s resettlement application when that person, or group of people, were in a foreign country. It was altogether different when they were already in the country. The second difference, which would test the purported neutrality of Australia’s new immigration policies, was that most of the people arriving were now Asian and not European, which, as Mary Crock and Ben Saul have written (2002, 1), ‘stirred anti-foreigner sentiments reminiscent of the darkest days of the discriminatory White Australia Policy’. In 1976 the first boat carrying Indochinese asylum seekers arrived on Australia’s north coast. By the middle of 1979 over 50 boats, carrying over 2000 asylum seekers, had arrived (McMaster 2001, 70). As McMaster notes (2001, 70–1), in 1977 the Fraser government created ‘Australia’s first officially administered refugee policy’, which was ‘not an open-door policy but one of controlled intakes’. Despite the existence of some criticism, the government was on record as believing ‘that there was a community willingness to assist the dispossessed and displaced from overseas in a sensible and realistic way to seek sanctuary and a new life in Australia’. Australian government figures (DIMIA 2005, 18) show that over 155 000 Vietnamese refugees have been settled in Australia since 1975. The annual number of humanitarian arrivals reached over 20 000 twice in the early 1980s, a figure that had not been reached since the postwar immigration boom (York 2003, 134–5). This intake of mainly Southeast Asian refugees did not occur without criticism. In 1984 historian

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Geoffrey Blainey publicly questioned the level of Australia’s intake from that region, and in 1988 John Howard suggested that the rate of immigration to Australia from Asia should be ‘slowed down’ (McMaster 2001, 146, 150). The so-called second wave of refugee boats arrived after 1989 and the reception given to the mainly Cambodian asylum seekers was more hostile than that which had greeted Vietnamese refugees. The Hawke government rejected the proposition that the arriving Cambodians could automatically be classified as refugees (McMaster 2001, 73–6; Crock and Saul 2002, 31). As Prime Minister Hawke said (McMaster 2001, 75), in language that would be echoed by Howard government ministers at the turn of the 21st century, ‘We have an orderly migration programme. We’re not going to allow people just to jump that queue by saying we’ll jump into a boat, here we are’. A further reason for rejecting the claims of Cambodian asylum seekers arose when the Hawke government, through Senator Gareth Evans, played a key role in negotiating peace in Cambodia (McMaster 2001, 75–6; Crock and Saul 2002, 31). The widespread acceptance of Cambodian refugees would, the government feared, undermine the peace process. In the years after 1996, when the Howard Coalition government came to power, asylum seekers were increasingly coming from the Middle East (Brennan 2007, 7). As we shall see shortly, a hardening of government and, it would appear, popular sentiment for asylum seekers soon reached a new low. No analysis of the background to 2001 would be complete without drawing attention to the criticism of Asian immigration put forward by Pauline Hanson in the lead-up to, and following, her election to federal parliament in 1996. Hanson’s blunt critiques of Labor government policies included the following statement made in her maiden speech (Parliamentary Debates Representatives 10 September 1996, 3862): I and most Australians want our immigration policy radically reviewed and that of multiculturalism abolished. I believe we are in danger of being swamped by Asians.

Such comments were seen to benefit conservative politicians, whose refusal to criticise her could be seen as tacit support for her opinions (see also Kelly 1998; McMaster 2001, 152–3).

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2001: Refugees on centre stage The power to determine whether would-be immigrants are allowed to enter a nation is one of the tests of nationhood. But Prime Minister Howard’s 2001 ‘We will decide’ statement suggested that this power in relation to refugees had weakened considerably in Australia. The implicit message here was that people were taking advantage of Australia’s overly generous humanitarian laws by arriving without invitation, seeking recognition as refugees, and then staying. It is certainly true that the number of people arriving in Australia on ‘unauthorised’ boats increased at the turn of the 21st century. In the decade to June 1999 the highest annual number of ‘unauthorised arrivals’ had been 1071 in 1994–5. Suddenly, that figure topped 4000 in 1999–2000 and again in 2000–1 (York 2003, 141). As the Department of Immigration reported (DIMIA 2007b), ‘more than 9500 people, mainly from Afghanistan and Iraq, arrived in Australia unlawfully by boat between July 1999 and December 2001’. In 2001 the federal government’s stance towards asylum seekers hardened dramatically. The name that will forever now be associated with that change in stance is that of a Norwegian ship, the Tampa.

Tampa The Tampa standoff constituted one of the most controversial moments not only in Australia’s refugee history but also in its maritime history. In August 2001 the Norwegian merchant tanker, the Tampa, answered a distress call in the Indian Ocean. After collecting over 400 mostly Afghani people from a derelict boat on 26 August, the captain, Arne Rinnan, set off for Indonesia. When Rinnan was threatened by some of the male passengers he turned the boat around and headed for Australia (VCCL v Minister for Immigration 2001; Marr and Wilkinson 2003, chapters 1 and 2). That was when the Howard government took the political decision to declare, in the prime minister’s words (ABC 2001), that the Tampa ‘will not be given permission to land either at Christmas Island or somewhere else in Australia. This is on our advice a matter for Indonesia and Norway to resolve’. Initial advice from the attorney-general’s department suggested

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that the government could not legally prevent the Tampa from coming into Australian territory (Errington and Van Onselen 2007, 300), but the government would not be swayed. Despite concerns being voiced by Rinnan about the health of his passengers, Australia refused to give medical assistance, presumably fearing that an Australian doctor would receive an application for refugee status that would then trigger the operation of Australia’s immigration legislation. By this stage there was international furore over Australia’s decision to breach one of the principal laws of the sea – that boats in danger are assisted. When it entered Australian waters not far from Christmas Island on 29 August, the Tampa was ordered to stop. SAS troops boarded the boat and took control (VCCL v Minister for Immigration, Marr and Wilkinson 2003, chapters 4 and 6). At this stage an application was made to the Federal Court on behalf of the passengers. It argued that the passengers were, in effect, being illegally detained by Australia. Initially, the Court agreed, with Justice North, on the now notorious date of 11 September 2001, finding (VCCL v Minister for Immigration, par. 81) that the government directed where the MV Tampa was allowed to go and not to go. They procured the closing of the harbour so that the rescuees would be isolated. They did not allow communication with the rescuees. They did not consult with them about the arrangements being made for their physical relocation or future plans.

North ordered that the passengers be brought to the Australian mainland for processing. But that decision was overturned by the Full Federal Court. In essence, the victorious argument was that the passengers were simply being stopped from entering Australia. They were free to go anywhere else. In the words of one of the majority judges (Ruddock v Vadarlis, par. 213) the actions of the Commonwealth were properly incidental to preventing the rescuees from landing in Australian territory where they had no right to go. Their inability to go elsewhere derived from circumstances which did not come from any action on the part of the Commonwealth.

In the end 433 passengers were transferred to an Australian navy ship. New Zealand took 131 of the asylum seekers, while 302 went to Nauru, the first

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asylum seekers to be processed under what came to be known as the Pacific solution. By 2003, of those on Nauru, 79 had been declared by the UNHCR to be refugees. A small number of these people eventually resettled in Australia (Shaw 2003; Marr and Wilkinson 2003, chapter 12). The determination as to who is a refugee is made in view of the prevailing conditions in the host country at the time. It is worth noting that when many on board the Tampa fled Afghanistan, the Taliban was in power. Its subsequent overthrow meant that some asylum seekers may have been refugees in 2001, but they no longer were by 2003. In all of their border protection activities members of the Howard government, and other federal parliamentarians, had one or both eyes on the November 2001 federal election. According to opinion polls, the hard-line stance against asylum seekers was resonating with the Australian public. Newspoll (2001a) conducted one survey between late August and early September 2001 that found that half the respondents wanted to ‘turn back all boats carrying asylum seekers’, while 38 per cent would only ‘allow some boats to enter’. Only 9 per cent would let every boat come in. The Border Protection Bill 2001 was passed by the House of Representatives in late August 2001 but failed in the Senate, where the Howard government did not have a majority. That bill, which was described in the Senate as ‘draconian’ (Parliamentary Debates Senate 29 August 2001, 26984), sought to give a government official the power (clause 4) to ‘direct the master or other person in charge of a ship that is within the outer limits of the territorial sea of Australia to take the ship, and any person on board the ship, outside the territorial sea’. A further highly contentious and clumsy clause (clause 10) provided that ‘This Act has effect in spite of any other law.’ In late September the Australian parliament did pass the Migration Amendment (Excision from Migration Zone) Act 2001, which had the effect of rendering places such as Ashmore Reef and Christmas Island ‘excised offshore places’. In effect this meant that people arriving at these places were not able to apply for protection visas in the way they could have had they landed elsewhere in Australia. Complementary legislation, the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001, provided that people arriving at these places could be forcibly taken to ‘a specified country’. This provided the legislative basis for the Pacific solution.

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These Acts had all the hallmarks of Orwellian double-speak: they effectively labelled parts of Australia as not being parts of Australia, yet they entitled the Australian government to remove people from those places and send them to any other country with which Australia had managed to negotiate an agreement. The fact that the Australian Labor Party supported the legislation indicated that asylum seekers did not even have the support of a substantial minority of Australian parliamentarians. The ALP was heavily criticised from within and outside its own membership for not providing an effective voice of opposition to the Howard government’s harsh stance. In adopting a small target strategy on this issue in the 2001 election campaign the ALP was seeking to limit the political advantage that the tough asylum seeker policy stance seemed to be generating for the Howard government. At the same time the ALP lost some support during that election to the Greens, who were heavily critical of the Howard government’s position. Just how much support went from the ALP to the Greens over the issue is hard to evaluate, though a drift seems clearly to have occurred in electorates in Melbourne (Bennett et al. 2002). The tough new stance on asylum seekers was being adopted against a background of heightened anxiety in the West about terrorism. A focus on border protection policies neatly positioned the Australian government as being actively engaged in making Australia safer. While there was no evidence to suggest that asylum seekers posed a security threat to Australia, the two issues – terrorism and asylum seekers – fell within the one border protection policy arena. Occasionally, government members even directly linked the two issues. Two days after the terrorist attacks in Washington and New York, Defence Minister Peter Reith drew a connection between terrorism and asylum seekers. Paraphrasing with approval a senior US official, Reith, in response to a question about ‘boat people’, claimed (Radio 3AK 2001) that ‘You’ve got to be able to manage people coming into your country, you’ve got to be able to control that otherwise it can be a pipeline for terrorists to come in and use your country as a staging post for terrorist activities’. The border protection activities of the government continued to receive strong popular support. By October 2001 opposition to letting any boats in with asylum seekers on board had moved to an astonishing 56 per cent (Newspoll 2001b). Interestingly, one year after the Tampa incident, 48 per cent still held to the view that all boats should be turned away (Newspoll

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2002). Three years after the event, when the numbers of asylum seekers arriving in Australia had fallen dramatically, support for that position had dropped to 35 per cent (Newspoll 2004). But despite the strong figures pointing to public approval of the Howard government’s asylum seeker policies, political scientist Ian McAllister (2003) has produced evidence to show that the Howard government would have won the 2001 election even if the asylum seeker controversy had not arisen. McAllister has argued that the issue of national security alone, in the wake of the terrorist attacks in the USA, was enough to see the Howard government returned.

Children overboard The most significant controversy concerning the Howard government’s dealings with asylum seekers, certainly in terms of professional propriety of members of the government, concerned an allegation made in October 2001 that asylum seekers had thrown children overboard from their craft in a calculated bid to gain entry to Australia. According to this allegation, one group of asylum seekers was supposed to have thrown children into the ocean so that Australian navy personnel would be forced to rescue them. The presumption was that the rescuing of the children would trigger the immigration legislation processes by which the asylum seekers could seek to remain in Australia as refugees. Philip Ruddock, the minister for immigration, claimed on 7 October 2001 (Senate Select Committee 2002, xxi) that ‘a number of children had been thrown overboard’ from a boat, which was named Suspected Illegal Entry Vessel (SIEV) 4, which the navy had intercepted. This claim was repeated by senior members of the Howard government, including the prime minister himself. Reith claimed that a video existed of the incident and that ‘it is an absolute fact, children were thrown into the water’ (Weller 2002, 1–2). The claim, which was made just weeks before the federal election, had clear political significance. In a campaign in which the Howard government’s tough stance on border protection appeared to be markedly improving the government’s election prospects, the story would harden the feelings of Australians towards asylum seekers and lead them to support the government’s stance. As the prime minister said, ‘I don’t want in this country people who

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are prepared, if those reports are true, to throw their children overboard’ (Weller 2002, 1–2). As evidence that the story was true, the defence minister even distributed photographs to the media of children in the ocean. As a subsequent Senate Select Committee report into the matter revealed, the claim was untrue. Government members of the Senate Select Committee derided the Senate report (2002, 477) as ‘a political show-trial, driven by the misplaced sense of self-righteous outrage by the Australian Labor Party at its defeat at the 2001 Federal elections.’ But the committee made the clear finding (2002, xxiii) that ‘[n]o children were thrown overboard from SIEV 4’. It also found that the pictures distributed to media outlets, which showed children in the water, did not date from 7 October but from the day after, ‘while SIEV 4 was sinking’. The controversy surrounding the children overboard incident centred not just on the inaccuracy of the claim, but also on the refusal of the Howard government to correct the public record when it became clear that the claim was seriously questionable, if not outright false. According to the Senate Committee (2002, xxiii–iv), within a week of the claim being made the navy hierarchy were of the view that the claim was wrong, and the defence minister had been told that the published photographs did not support the claim at all. By 8 November the defence minister had been advised by defence personnel that serious questions existed about the accuracy of the claim, and the prime minister is believed to have been advised that there was uncertainty, at least, about the photographs. But as the committee reported: Despite direct media questioning on the issue, no correction, retraction or communication about the existence of doubts in connection with either the alleged incident itself or the photographs as evidence for it was made by any member of the Federal Government before the election on 10 November 2001. (Senate Select Committee 2002, xxiv)

An additional concern raised by the incident centres on the belief that public servants and political advisers had acted to shield government members from criticism and accountability. The case came to be seen as the quintessential example of a developing practice whereby public servants and minders operated to protect ministers from scrutiny by not giving them information that could compromise them politically. Ministers could honestly say they did not know an allegation was false if they had never

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been advised that it was false. Days after the initial children overboard claim had been made, the prime minister was asked for evidence to back it up. He was able to reply (Weller 2002, 2) that ‘I have been provided with no information since then that would cause me to doubt it’. Political scientist Patrick Weller’s book on the affair (2002) was entitled Don’t Tell the Prime Minister. Among other things, the children overboard affair raised serious questions about the politicisation of the public service and the propensity of government members to surround themselves with like-minded political advisers rather than with bureaucrats who are prepared to tell politically unpalatable truths (see Strangio and Walter 2007).

SIEV X Easily the biggest humanitarian tragedy that has concerned asylum seekers in Australia’s recent past happened in the same month as the children overboard claim, when 352 people on board the boat labelled SIEV X drowned on 19 October en route from Indonesia to Christmas Island. Only 44 people survived the catastrophe (Senate Select Committee 2002, xl). While the Senate Select Committee (2002, xlii) could not ‘find grounds for believing that negligence or dereliction of duty was committed in relation to SIEV X’, questions continue to be raised about whether the Australian government or navy knew of the boat’s whereabouts and unseaworthiness, and about whether greater steps could and should have been taken to avert the extraordinary loss of life (see Kevin 2004). The lack of source material on this tragedy remains the biggest impediment to further inquiries about what happened to SIEV X.

The policy controversies Aside from the incident-specific controversies – the Tampa, SIEV X and the children overboard claim – controversy surrounded three of the Howard government’s central policies in its dealings with asylum seekers. One of these policies, the Pacific solution, required asylum seekers who landed at excised offshore locations or who were intercepted en route to Australia to be processed offshore in Pacific Island countries. Another

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was the mandatory detention of ‘illegally arriving’ asylum seekers. The third was the provision of only temporary protection visas to those asylum seekers who were found to be refugees. Each of these policies, which will be briefly examined in turn, attracted the sustained criticism of a committed coalition of local and international groups, some of which were established solely to counter the Howard government’s stance (and the Labor Party’s relative silence) on asylum seekers. These groups, whose membership ranged from student activists to eminent Australians and which included Oxfam, A Just Australia, the Refugee Action Collective and the Australian Greens, as well as numerous church-based organisations, slowly pricked mainstream Australian consciences, but not before significant damage had been done to the lives of many refugees and the nation’s reputation. The Pacific solution Passengers on the Tampa were the first to be processed under the government’s Pacific strategy, which critics dubbed the Pacific solution. The suite of new laws meant that any person arriving at an excised offshore place, such as Christmas Island, could be transferred to a specified country. Nauru and Papua New Guinea were the two countries that agreed to assist by establishing detention centres. As the government reported (DIMIA 2007c): ‘In total, 1524 people were sent to the Nauru and Manus processing centres between 2001 and 2003, and 23 babies were born to centre residents.’ Of the total of 1547, 986 were ultimately determined to be refugees. In late 2006 eight men from Burma were taken to Nauru and in early 2007, 82 Sri Lankans joined them. The stated aim of the policy was to deter people-smuggling operations. As the government’s figures make clear, the policy certainly worked to deter asylum seekers from arriving in Australia. While there were over 9500 people who ‘arrived in Australia unlawfully by boat’ in the 30 months to the start of 2002 (in addition to over 1500 people picked up on their way in the second half of 2001), in the five years from then until the start of 2007, there had been under 250 ‘unauthorised boat arrivals’ (DIMIA 2007b). Criticisms of the Pacific solution centred on the humanitarian cost of the policy success. Critics also pointed to the policy’s deleterious consequences for the rule of law in Australia, and for Australia’s Pacific aid program. Critics have even argued that the economic costs have far outweighed any

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benefits that have been derived for the nation. One report produced by Oxfam and the group A Just Australia surmised that In the six years since the Tampa crisis in August 2001, Australian taxpayers have spent more than $1 billion to process less than 1700 asylum seekers in offshore locations – or more than half a million dollars per person. Most, if not all, of these asylum seekers have paid a substantial personal toll through poor mental and physical health and wellbeing. There have also been detrimental impacts on Australia’s democratic and legal system, Australia’s regional relationships and the international system of protection of refugees and asylum seekers. (Bem et al. 2007, 3)

That report pointed (Bem et al. 2007, 16–20) to numerous incidents of self-harm by detainees and other displays of psychological distress that have been exacerbated, and even arguably caused, by detention in the offshore facilities. The rule of law has been compromised many times by the policy (36–7): through restrictions on the access of detainees to Australian lawyers; through restrictions on judicial review in relation to immigration determinations; and through the restricted ability of officials such as the Commonwealth Ombudsman to review the situation of people in facilities outside Australia. The report also (40–3) pointed to concerns about the way the money paid to the struggling nations of Papua New Guinea and especially Nauru have not had the long-term future interests of those countries in mind. Oxfam and A Just Australia called on Australia (Bem et al. 2007, 6) to withdraw the Pacific solution and instead process people onshore in Australia. But it was not until the Howard government was removed from office in 2007 that Australia was able to heed this call. Mandatory detention The mandatory detention of asylum seekers who arrive ‘unlawfully’ in Australia was a policy that was introduced in 1992 by the Keating Labor government (DIMIA 2007d). Under the policy those people who arrive in Australia unlawfully, which, typically, means without a valid visa, are subject to detention. The number of people in immigration detention since 1997 has ranged from a low of 2716 in 1997–8, to 7881 in 2000–1 and 7808 in 2001–2. At

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its highpoint in 2000–1, the four most common nationalities of detainees were Afghani, Iraqi, Iranian and Palestinian (DIMIA 2007d). The principal criticisms of the mandatory detention policy are fourfold: 1 2 3 4

that it breaches international law that it discriminates against those who arrive in Australia by boat that it places new and unreasonable stresses on the lives of refugees that it ultimately serves little policy purpose.

The focus here will be on the argument that the policy breaches international law, but it is worth briefly mentioning the other three criticisms. The policy discriminates against one group of asylum seekers inasmuch as it requires every person who arrives unlawfully by boat to be placed behind bars, while it has far less complete coverage over those who, for instance, arrive by plane and overstay their holiday visas. The deleterious physical and mental health effects of detention are widely known and reported (for example, Keller et al. 2003). Critics also argue that little policy purpose is served by detaining asylum seekers for years, when most will eventually be found to be refugees. The cost of detention is large and people in detention cannot contribute to the economy. One of the principal criticisms of the mandatory detention policy is that it breaches international law. The policy has been seen by some to contravene Article 9 of the International Covenant on Civil and Political Rights, which provides that ‘No one shall be subjected to arbitrary arrest or detention’. The argument about whether mandatory detention constitutes arbitrary detention, discussed earlier, hinges on one’s view as to what constitutes freedom of movement for an asylum seeker. Those who argue the policy is consistent with international standards argue that asylum seekers are not technically being imprisoned. They are free to return to their countries of origin or to any other country that is willing to take them. They are simply being detained on the basis that they wish to enter Australia, and Australia has the right to process applications in a manner that ensures that health and security checks can be carried out without the risk of asylum seekers fleeing within the nation (this argument was made by the government in the Federal Court when the former passengers of the Tampa were being held on a naval ship to prevent them from entering Australia).

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Opponents have argued forcefully that asylum seekers who are detained are in essence being imprisoned. If one accepts that most asylum seekers are genuine refugees, then any freedom they may have to return to the countries of their persecution is no freedom at all. As the United Nations High Commissioner for Refugees told Australia (UNHCR 2003): Australia’s detention policy applies to all unauthorised arrivals and does not single out asylum seekers as such. However, the vast majority of illegal arrivals are asylum seekers. In UNHCR’s view, Australia’s policy of mandatory detention of all asylum seekers arriving illegally is not consistent with applicable international standards . . .

In the view of the UNHCR, detention of asylum seekers is only warranted initially to check an applicant’s identity and thereafter only when suspicions about the bona fides of the applicant are warranted, or when public order is at risk. At the height of the asylum seeker paranoia in 2002 two asylum seeker children, who broke out of Woomera detention centre, sought protection from persecution in Melbourne at the British embassy. While the British government refused protection, it is notable that the offending nation was, in this instance, alleged to be Australia for its practice of mandatorily detaining asylum seekers who arrive by boat. Former Prime Minister Malcolm Fraser criticised the British decision, saying (ABC 2002) that ‘The British are effectively handing over the children to a Government that they know will [arbitrarily] detain them’. The mandatory detention of asylum seeker children raised perhaps the most fervent criticism of Australia’s practices. Even those people with a hard line view about the need to detain adults tended to be far more sympathetic to the invidious position suffered by children who find themselves in detention. The number of children in detention on mainland Australia peaked at 1923 in the year 2000–1. The most children in detention on any one day reached 842 in September 2001, with over half that number impounded in the desert facility at Woomera. By 2003 children were spending over a year, on average, in detention (HREOC 2004, pars 3.2, 3.4). In 2004 the Human Rights and Equal Opportunity Commission reported (par. 9.6) that ‘children in long-term detention’ had suffered from

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anxiety, distress, bed-wetting, suicidal ideation and self-destructive behaviour including attempted and actual self-harm. The methods used by children to self-harm have included attempted hanging, slashing, swallowing shampoo or detergents and lip-sewing.

In addition to breaching other international instruments, the mandatory detention of children has constituted a clear breach of the Convention on the Rights of the Child, which Australia ratified in 1990. As the Human Rights and Equal Opportunity Commission inquiry reported (HREOC 2004, par 17.1): Australia’s immigration detention laws, as administered by the Commonwealth, and applied to unauthorised arrival children, create a detention system that is fundamentally inconsistent with the Convention on the Rights of the Child.

Article 37(b) of the Convention holds that No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time . . .

The decision to release children from detention in 2005 came not as a direct result of the incompatibility of the policy with international law, but as a result of internal political pressure from within the Liberal Party (which itself was partly a response to the sustained activism of a vocal minority of Australians). A 2004 High Court challenge to the legality of detaining children was unsuccessful (see below). But in the end a handful of backbench Liberal Party parliamentarians led by Petro Georgiou pressured the government, which finally relented and removed the remaining children from immigration detention facilities in July 2005 (Jackson 2005, DIMIA 2007d). Temporary protection visas The next policy development for which the Howard government was strongly criticised concerned its provision only of temporary, rather than permanent, protection for many refugees.

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The temporary protection visa (TPV) policy dates back to 1999. According to the policy, refugees who had arrived unauthorised in Australia were initially only entitled to a TPV. Permanent protection could be sought when the TPV, which typically lasted three years, was about to run out. The stated reason for this policy change was to discourage ‘misuse of the protection process by unauthorised arrivals’, which involved, for instance, ‘people smugglers’ helping asylum seekers who chose Australia rather than closer countries as the preferred place of refuge (DIMIA 2007e). One of the consequences was that a person’s classification as a refugee could change within the three-year life of the TPV if, for instance, there was a political change in the person’s country of origin. The fall of the Taliban in Afghanistan in 2001 is a case in point, which saw some Afghanis classified as refugees in 2001 but not in 2002. The ability of such people to settle into a new country has been severely compromised by the uncertainty inherent in the granting of only a TPV. Further changes in September 2001 made for even greater uncertainty for some TPV holders. Under those changes (DIMIA 2007e), anybody who, en route to Australia, spent one week or more in a nation that could have granted them refugee protection, was only ever entitled to a TPV, never to permanent protection. So, while they could continually seek TPVs, they would never have more than three years certainty about where they would live. Again this was a measure designed to deter people smuggling, where people would gather outside their countries of origin in neutral countries such as Indonesia before finding a boat that would take them to Australia. While the immigration minister did have the discretion to make exceptions in individual cases, this made for a situation of ‘Temporary Protection Permanent Uncertainty’, as one report labelled the policy (Marston 2003). Criticisms of the TPV policy have focused on the uncertainty a TPV places on the lives of refugees, the difficulties confronting TPV holders in accessing basic services and the discriminatory nature of the TPV regime, which has applied only to those who arrived unlawfully, rather than to those who arrived with, say, a study visa and who then sought protection. The uncertainty facing TPV holders has been widely reported (see, for example, Mansouri 2006, 14). One report found a clear and unequivocal connection between the visa status of refugees on TPVs and their self-reported feelings of distress, despair and depression. The

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deep uncertainty associated with the TPV severely restricts the capacity of refugees to recover from a traumatic past, as well as to dream, hope and plan for a better future. (Marston 2003, 4)

Other reports (such as Mansouri 2006, 12–15) have pointed to the poor level of access of TPV holders to basic social services, such as education, health care and housing. Mixed in with all of this was the two-tier system that the TPV policy created in terms of Australia’s response to refugees. As Marston (2003, 4) has written: [M]uch of the human rights literature comes to the conclusion that Australia’s policy of temporary protection violates the UN Refugee Convention, which prohibits penalising refugees on account of how they enter a country of asylum.

Peter Mares has more bluntly written (2001, 24) that ‘Australia effectively divides refugees into categories of “good” and “bad”’, those who apply for refugee status and wait in their countries to be selected, and those who flee and come to Australia without invitation. The TPV scheme was abolished by the Rudd government in 2008.

The judicial realm This section will briefly examine the extent to which Australian courts have been able to constrain the activities of the federal parliament when international laws appear to have been broken. The Australian parliament does remain quite unrestrained in this regard. Mandatory detention of asylum seeker children has probably been the most heavily criticised aspect of the Howard government’s asylum seeker policies. When the legality of this practice was challenged in 2004, the High Court (Re Woolleys) confirmed that the policy was legal. Despite acknowledging the likely breach of international law that such detention constituted, the Court found no basis on which to invalidate the practice. The High Court has recognised that international law does constitute a valid source for the interpretation and development of Australian law

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(Mabo v Queensland 1992, par. 42), and has even found (Minister for Immigration v Teoh 1995, par. 26) that ‘Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party’. But in the case of the detention of asylum seeker children, there was no uncertainty or ambiguity as to the parliament’s intention. As Justice Kirby said (Re Woolleys 2004, pars 212–13): The scheme of universal mandatory detention is a deliberately chosen, and repeatedly reaffirmed, decision of the Australian Parliament, acting within its constitutional powers. As such, it is the duty of this Court to uphold it . . . No other decision of this Court suggests that another course is available. On the contrary, recent authority of this Court repeatedly confirms the lawfulness and validity of the applicants’ detention. It does so notwithstanding the extended duration of the detention, the status of the respondents as children, the arguable breach of international obligations and the unfortunate consequences that I would be prepared to assume such prolonged detention of children occasions.

The High Court was also asked in 2004 to rule on the legality of indefinitely detaining an asylum seeker. The blurred line distinguishing detention from imprisonment must appear non-existent to a stateless person who is being held indefinitely, but the High Court (Al-Kateb v Godwin 2004) again ruled that the practice was legal. That case witnessed a stoush between two High Court judges that warrants two lengthy quotations, as each opinion summarises a particular view of the relevance of international law to constitutional interpretation in Australia. Justice McHugh, in the majority here, argued (Al-Kateb v Godwin 2004, par. 74) that Under the aliens power, the Parliament is entitled to protect the nation against unwanted entrants by detaining them in custody. As long as the detention is for the purpose of deportation or preventing aliens from entering Australia or the Australian community, the justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights. The function

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of the courts in this context is simply to determine whether the law of the Parliament is within the powers conferred on it by the Constitution.

Justice Kirby differed strongly. He agreed (par. 179) that It is true that, consistently with the Constitution, it is not part of the judicial function to insert a comprehensive Bill of Rights into the Constitution . . . Nor may the judiciary ‘by the back door’ incorporate an international treaty (even one ratified by Australia) as part of Australian law where the Parliament has not done so by legislation . . .

But he took the view that in this case (par. 193) [T]his Court should read [the legislation] in a way that restricts any assertion . . . that unlimited executive detention was there enacted. It should do so because that construction is available in the language of the Act and the assumptions disclosed by that language. It should do so because, in that way, a ‘serious constitutional problem’ . . . that would otherwise be raised is avoided. And it should do so because that interpretation is consistent with the principles of the international law of human rights and fundamental freedoms that illuminate our understanding both of the provisions of the Act and of the Constitution applicable to this case.

As Kirby’s defeat in that case showed, the Australian High Court has clearly, albeit not unanimously, stated that international human rights norms will continue, for the foreseeable future, not to be central to the interpretation of Australian law (see also Gelber 2005, 313). In cases of ambiguity, international norms will certainly constitute a persuasive source in the process of interpretation. But, as even Kirby agrees, the simple inconsistency of Australian laws with international human rights norms is not a sufficient enough ground for the High Court to invalidate Australian laws. The implications of this for the rights of asylum seekers are clear. As things stand, international human rights norms will only be of direct assistance to an asylum seeker in an Australian court where the parliament or the executive has been ambiguous in its intended treatment of the asylum seeker. While there have been many criticisms that have been levelled at the

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Australian parliament and at the Australian government over their recent dealings with asylum seekers, ambiguity of intention has not been one of them.

The parliamentary realm While being of limited legal effect, the inconsistency of Australian refugee laws and practices with international norms can nonetheless have political significance. Indeed, with all other avenues exhausted, it appeared that the only way for the new refugee regime to be tempered was, as is the case with most rights debates in Australia, through the parliamentary realm. On several occasions in the past 20 years politicians have been moved to make one-off gestures after empathising with the plight of particular groups of people. In 1989, following the massacre at Tiananmen Square, Prime Minister Hawke suddenly announced that Chinese students in Australia at the time would be protected. Over 27 000 Chinese people became permanent residents the following year (McMaster 2001, 78). In 1999, 4000 Kosovar asylum seekers were granted temporary safe haven visas in Australia; soon after 1900 East Timorese received the same protection (DIMIA 2007a). In more recent times a small and committed band of Liberal Party politicians, with the support of former Prime Minister Malcolm Fraser, worked hard to soften the harsh stance of the Howard government towards refugees. Petro Georgiou, in particular, became outspoken on the detention of child asylum seekers. As we saw earlier, this group was critical in forcing the July 2005 release of children in detention. A second internal defeat for the government’s policies came the year after. In 2006 the Howard government, with its majority in the Senate, attempted to amend the Migration Act so that the Pacific solution would be extended to cover all people arriving by sea in Australia without authorisation. Under the Pacific solution changes in 2001, people who arrived at the expanded list of ‘excised offshore places’ were transferred to immigration detention centres in Nauru and Papua New Guinea. The proposed 2006 changes would have extended that practice to anyone who arrived anywhere in Australia by sea without authorisation. So if someone happened to arrive by boat in Cairns, for instance, the changes would have necessitated that person being

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taken offshore for processing (Senate Legal and Constitutional Legislation Committee 2006). The bill passed easily in the House of Representatives, despite three coalition MPs – Petro Georgiou, Russell Broadbent and Judi Moylan – crossing the floor to vote against it (Parliamentary Debates Representatives, 10 August 2006, 45; SBS 2006). But in the Senate, where the government had a majority of just one senator, the decision was made to withdraw the bill when Judith Troeth, a Liberal Party senator, promised to cross the floor and defeat it (Coorey 2006). This was the second instance where the harshness of its policies caused a rare breaking of ranks in the Liberal Party. Despite these examples, the hardline approach towards asylum seekers was largely maintained by the Howard government right up until its removal from office in 2007. On this point it is notable that, in the shadow of the 2007 federal election, the Howard government decided to freeze the number of refugees entering Australia from Africa on the basis that Africans, particularly Sudanese, were not assimilating appropriately. That decision, which was partly a response to some high-profile media concerns about lawlessness among young Sudanese males, was treated by international media as an instance where the Howard government was again using race as an election ploy (Hyland 2007). Aside from this development, refugees and asylum seekers did not play a significant role in the 2007 federal election, largely because of the dramatic drop since 2001 in the number of boats arriving unauthorised in Australia. The election of the Rudd Labor government in 2007 has seen three significant changes to Australia’s approach to refugees. First, the Pacific solution was promptly dismantled. Soon after its election the Rudd government indicated its willingness to resettle 81 Burmese and Sri Lankan refugees from Nauru in a move that initiated the conclusion of the much-criticised, and very expensive, policy. At the same time, the government repatriated 16 Indonesian asylum seekers in a move that affirmed that the government would continue to exercise a firm approach towards asylum seekers (Skehan 2007). Second, the Rudd government announced in mid 2008 that it would jettison the notorious TPV scheme (HREOC 2008). Third, in July 2008 the Rudd government announced major reforms to the mandatory detention policy. While not withdrawing the policy entirely, the changes are said now to require detention ‘for the shortest practicable time’, with prolonged detention needing to be justified on risk-based

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criteria (Evans 2008). Just how the changes in policy will be implemented remains to be seen.

Conclusion Between 1999 and 2006 the number of people accepted into Australia under the country’s humanitarian program, which includes refugees and others who are subject to human rights abuses, has ranged between a low of 12 349 in 2001–2 and a high of 15 860 in 1999–2000, though that latter figure includes 4000 safe haven visas issued to Kosovars as well as 1900 such visas issued to East Timorese (DIMIA 2005, 12; DIMIA 2007a). Figures presented by researcher Barry York (2003, 136) suggest a significant drop in annual humanitarian arrivals during the period of the Howard government, from 13 824 in 1995–6 to below 8000 by the start of the 21st century. When onshore protection figures are added, the total number of places has remained steady at around 12 000 to 13 000 (DIMIA 2007a). These figures include people on temporary protection visas, so the relatively steady overall figures give a misleading indication of Australia’s willingness to resettle refugees (Brennan 2007, 6). In an era of rising numbers of refugees, Australia has, if anything, an obligation to increase its intake of refugees, not just keep pace with its past performance. The policy of placing those asylum seekers who come to Australia by boat in facilities that are prisons in all but name constitutes a likely breach of international law. The fact that most people detained under this policy have been found to be refugees, after intervals of years in some cases, makes the practice all the more self-defeating once the economic and humanitarian costs are accounted for. All of Australia’s recent asylum seeker policies combined – the now defunct Pacific solution, the also now defunct policy of granting only temporary protection to those found to be refugees and the now amended policy of mandatorily detaining those who arrive unauthorised – have played a key part in ensuring the stigmatisation of asylum seekers as a minority group (see Pickering 2005, chapter 3; Brennan 2007, chapter 8). When minority rights are as vulnerable to political will as they are in Australia, the only effective way to ensure their protection is to make parliamentarians conscious of the humanitarian costs of their hardline policies.

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The internationally agreed upon norms concerning refugees assume the role only of suggestions in Australia, with Australia’s highest court having determined that it is powerless to enforce them. And while a statutory bill of rights would not empower the High Court to invalidate any return to the Howard government’s asylum seeker policies, such a bill would at least enable courts to clarify for future parliamentarians exactly when their policies constitute breaches of human rights, which at least would jettison the myth that human rights breaches only happen in other countries.

References Australian Broadcasting Corporation, 2001. Lateline transcript. 27 August. Accessed online at www.abc.net.au/lateline/stories/s353388.htm, 21 April 2008. —— 2002. ‘Howard Defends Boys’ Detention’. 19 July. Accessed online at www.abc. net.au/news/politics/2002/07/item20020719125227 1.htm, 21 April 2008. Australian Politics, 2001. ‘John Howard’s Policy Speech’, October 28. Accessed online at http://australianpolitics.com/news/2001/01–10–28.shtml, 21 April 2008. Bem, Kazimierz, Nina Field, Nic Maclellan, Sarah Meyer and Tony Morris, 2007. A Price Too High: The Cost of Australia’s Approach to Asylum Seekers. Melbourne: Oxfam Australia, ‘A Just Australia’. Accessed online at www.oxfam.org.au/ media/files/APriceTooHigh.pdf, 21 April 2008. Bennett, Scott, Gerard Newman and Andrew Kopras, 2002. ‘Commonwealth Election 2001’, Australian Parliamentary Library Research Paper No. 11, 2001–2. Brennan, Frank, 2007. Tampering with Asylum: A Universal Humanitarian Problem. Brisbane: University of Queensland Press. Coorey, Phillip, 2006. ‘PM Dumps New Asylum Law.’ Sydney Morning Herald, 14 August. Crock, Mary and Ben Saul, 2002. Future Seekers: Refugees and the Law in Australia. Sydney: Federation Press. Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), 2005. ‘Refugee and Humanitarian Issues: Australia’s response’. Accessed online at www.immi.gov.au/refugee/ pdf/refhumiss-fullv2.pdf, 21 April 2008. —— 2007a. ‘Fact Sheet 60: Australia’s Refugee and Humanitarian Program.’ Accessed online at www.immi.gov.au/media/fact-sheets/60refugee.htm, 21 April 2008. —— 2007b. ‘Fact Sheet 75: Processing Unlawful Boat Arrivals.’ Accessed online at www.immi.gov.au/media/fact-sheets/75processing.htm, 21 April 2008. —— 2007c. ‘Fact Sheet 76: Offshore Processing Arrangements’. Accessed online at www.immi.gov.au/media/fact-sheets/76offshore.htm, 21 April 2008. —— 2007d. ‘Fact Sheet 82: Immigration Detention.’ Accessed online at www.immi.gov.au/media/fact-sheets/82detention.htm, 21 April 2008. —— 2007e. ‘Fact Sheet 64: Temporary Protection Visas.’ Accessed online at www.immi.gov.au/media/fact-sheets/64protection.htm, 21 April 2008.

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Errington, Wayne and Peter Van Onselen, 2007. John Winston Howard. Melbourne: Melbourne University Press. Evans, Chris, 2008. ‘Labor Unveils New Risk-Based Detention Policy.’ Press release from the Minister for Immigration and Citizenship, 29 July. Accessed online at www.minister.immi.gov.au/media/media-releases/2008/ce08072.htm, 6 October 2008. Gelber, Katharine, 2005. ‘High Court Review 2004: Limits on the Judicial Protection of Rights.’ Australian Journal of Political Science, 40: 307–22. Human Rights and Equal Opportunity Commission (HREOC), 2004. A Last Resort? The National Inquiry into Children in Immigration Detention. Accessed online at www.hreoc.gov.au/human rights/children detention report/report/index.htm, 21 April 2008. —— 2008. ‘The End of Temporary Protection Visas for Refugees is a Step Forward for Human Rights.’ Media release, 14 May. Accessed online at www.hreoc.gov.au/about/media/media releases/2008/56 08.html, 16 July 2008. Hyland, Tom, 2007. ‘World Takes Cynical View of Africa Ban.’ Sunday Age, 7 October: 10. Jackson, Andra, 2005. ‘Last Children in Detention Freed Today.’ Age, 29 July. Keller, Allen, Barry Rosenfeld, Chau Trinh-Shevrin et al., 2003. ‘Mental Health of Detained Asylum Seekers.’ Lancet, 362: 1721–3. Kelly, Paul, 1998. ‘Hanson – Symptom of a Deeper Problem.’ In Two Nations: The causes and effects of the rise of the One Nation Party in Australia, ed. N. Davidoff. Melbourne: Bookman. Kevin, Tony, 2004. A Certain Maritime Incident: The Sinking of Siev X. Melbourne: Scribe. Mansouri, Fethi, 2006. Asylum Seekers in Howard’s Australia: The social and economic costs of temporary protection visas. Melbourne: Deakin University Press. Mares, Peter, 2001. Borderline: Australia’s treatment of refugees and asylum seekers. Sydney: UNSW Press. Marr, David and Marian Wilkinson, 2003. Dark Victory. Sydney: Allen & Unwin. Marston, Greg, 2003. Temporary Protection Permanent Uncertainty: The experience of refugees living on temporary protection visas. Melbourne: Centre for Applied Social Research, RMIT University. McAllister, Ian, 2003. ‘Border Protection, the 2001 Australian Election and the Coalition Victory.’ Australian Journal of Political Science, 38 (3): 445–63. McMaster, Don, 2001. Asylum Seekers: Australia’s Response to Refugees. Melbourne: Melbourne University Press. Neumann, Klaus, 2004. Refuge Australia: Australia’s humanitarian record. Sydney: UNSW Press. Newspoll, 2001a. Asylum Seekers Poll, September. Accessed online at http://newspoll. com.au/image uploads/cgi-lib.6364.1.010901asylum.pdf, 21 April 2008. —— 2001b. Asylum Seekers Poll, October. Accessed online at http://newspoll. com.au/image uploads/cgi-lib.7712.1.011005asylum.pdf, 21 April 2008. —— 2002. Asylum Seekers Poll, September. Accessed online at http://newspoll.com. au/image uploads/cgi-lib.5620.1.0805asylum-seekers.pdf, 21 April 2008. —— 2004. Asylum Seekers Poll, August. Accessed online at http://newspoll.com. au/image uploads/cgi-lib.22387.1.803 tampa.pdf, 21 April 2008.

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Parkin, Andrew, 2006. ‘Understanding Liberal-Democratic Politics’. In Government, Politics, Power and Policy in Australia, 8th edn, eds Andrew Parkin, John Summers and Dennis Woodward. Sydney: Pearson. Pickering, Sharon, 2005. Refugees and State Crime. Sydney: Federation Press. Radio 3AK, 2001. ‘Transcript of the Hon. Peter Reith MP radio interview with Derryn Hinch.’ 13 September. Accessed online at www.minister.defence.gov.au/ ReithSpeechtpl.cfm?CurrentId=999, 21 April 2008. SBS, 2006. ‘Government MPs Cross the Floor.’ 11 August. Accessed online at www. worldnewsaustralia.com.au/region.php?id=130704®ion=7, 23 October 2007. Senate Legal and Constitutional Legislation Committee, 2006. ‘Provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006.’ Accessed online at www.aph.gov.au/Senate/committee/legcon ctte/migration unauthorised arrivals/ report/index.htm, 21 April 2008. Senate Select Committee, 2002. ‘Report on a Certain Maritime Incident.’ Accessed online at www.aph.gov.au/senate/committee/maritime incident ctte/report/report.pdf, 21 April 2008. Shaw, Meaghan, 2003. ‘Tampa Refugees Head for Australia.’ Age, 2 September. Skehan, Craig, 2007. ‘Pacific Solution Ends But Tough Stance to Remain.’ Sydney Morning Herald, 8 December. Strangio, Paul and James Walter, 2007. No, Prime Minister: Reclaiming Politics from Leaders. Sydney: UNSW Press. Tavan, Gwenda, 2005. The Long, Slow Death of White Australia. Melbourne: Scribe. Taylor, Savitri, 2000. ‘Do On-Shore Asylum Seekers Have Economic and Social Rights? Dealing with the Moral Contradiction of Liberal Democracy.’ Melbourne Journal of International Law, 1: 70–97. United Nations High Commissioner for Refugees (UNHCR), 2003. ‘Submission to the National Inquiry into Children in Immigration Detention.’ Accessed online at www.hreoc.gov.au/human rights/children detention/submissions/unhcr.html, 21 April 2008. —— 2008. ‘Basic Facts’. Accessed online at www.unhcr.org/basics.html, 21 April 2008. Weller, Patrick, 2002. Don’t Tell the Prime Minister. Melbourne: Scribe. York, Barry, 2003. ‘Australia and Refugees, 1901–2002: An annotated chronology based on official sources’, Australian Parliamentary Library. Accessed online at www.aph.gov.au/library/pubs/online/03chr02.pdf, 21 April 2008.

Cases Al-Kateb v Godwin [2004] HCA 37. Mabo v Queensland (No. 2) [1992] HCA 23. Minister for Immigration v Teoh [1995] HCA 20. Re Woolleys [2004] HCA 49. Ruddock v Vadarlis [2001] FCA 1329. S395/2002 v Minister for Immigration [2003] HCA 71. VCCL [Victorian Council for Civil Liberties] v Minister for Immigration [2001] FCA 1297.

Chapter Eight

CIVIL AND POLITICAL RIGHTS IN AN AGE OF TERROR

Liberal democracies hold individual lives as ends in themselves with all people equally entitled to protection and preservation. These liberal-democratic rights and protections were fought for with much blood and toil over many centuries in order to control and limit the use of violence occurring horizontally between citizens and vertically between citizens and the state. The history of liberal democracy has been a protracted and concerted effort to dissolve political absolutism and establish in its place limited government and rule of law through an elaborate system of checks and balances. Such checks and balances not only protect citizens from arbitrary interference but also ensure open and accountable government. And yet, despite the prolonged and hard-won provenance of this fragile system, in times of perceived emergency, liberal-democratic majorities have generally proved to be less concerned with abridgements of rights (perhaps because they cause more harm to minorities) than with their own security. As a consequence, liberal-democratic states have tended to overreact and curtail freedoms too hastily (Ignatieff 2004, ix). Australia is no exception and might even be described as an emblematic case. Among lawyers and academics, the dominant view is that the federal laws enacted to fight the war on terror, so-called, have significantly damaged Australian democracy. A common presumption is that our precious and hard-won liberal-democratic rights should, as a matter of course, trump the collective need for security (hereafter conceived of as the ‘liberal-democratic soul-protection position’, the soul of liberal-democracy being not only the

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rights and freedoms embodied in liberal-democratic norms, practices and laws, but also an enduring collective commitment to their defence). By contrast, in his comments (and behaviour) while drafting and promoting this legislation, former Attorney-General Philip Ruddock1 expressed the majoritarian view that the rights of minorities may be justifiably violated in times of security crises (hereafter conceived of as the liberal-democratic matrixprotection position, the matrix of liberal-democracy being the nation-state that protects the people who inhabit it). After all, as Ruddock quite rightly assumes, security from internal and external threat is the first duty of the state, its raison d’ˆetre and chief justification for imposing limitations on the liberties of citizens.2 But the executive-led determination to provide security appears to have unjustifiably sacrificed important rights, particularly those affecting minorities. It is a perfect example of the way in which terrorism, as historian and rights specialist Michael Ignatieff puts it so aptly, manages to open up ‘a fissure between democracy defined as majority rule and democracy defined as minority rights’ (Ignatieff 2004, 75).

The Australian response to the war on terror Legal academics Edwina MacDonald and George Williams (2007, 27) note that over 40 Acts with anti-terrorism dimensions have been enacted by the Australian parliament since 2001. The aim here is not to analyse each of these new laws, rather it is to discuss four of the most significant of them before turning to consider whether any checks and balances have limited what the federal government has wanted to do. Two of the laws that will be examined have been criticised on the basis that they constitute an unnecessary incursion on the internationally recognised freedoms of political speech and freedom of association. Section 102.3 of the Criminal Code outlaws ‘[m]embership of a terrorist organisation’, with a member who ‘knows the organisation is a terrorist’ one liable to a 10-year jail term. The legislation gives the government relatively free rein in its ability to declare an organisation to be a terrorist organisation, though the Opposition leader must be told why the listing is to occur (sections 102.1 (2) and (2A)). This law has been criticised for reinstituting a kind of status offence. The prosecution of status offences breaches an important criminal law principle,

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namely, that particular activities should be punished, not particular classes of people (McSherry 2004, 364–5). Since membership of an organisation can be entirely passive, the problem is that a person might be a non-active member of an organisation and suddenly find that organisation listed as a terrorist one, thereby rendering the person vulnerable to a long prison sentence. The person’s conduct in that scenario – joining an organisation prior to its designation as a terrorist one – is not the sort of activity the criminal law normally targets. Instead of directing itself at a particularly troublesome kind of conduct, this law has been criticised for targeting a particular kind of person (Joseph 2004, 436–7; MacDonald and Williams 2007, 36–7). Such people, given the current fault lines in the war on terror, will tend to be of Middle Eastern ethnicity. The second anti-terrorism law with clear free-speech implications was the decision to reinvigorate and redefine the law of sedition. The Criminal Code (section 80.2) now renders people liable to seven years jail if they urge the ‘overthrow by force or violence’ of the government. While the Code allows for a number of ‘good faith’ defences (section 80.3), such as criticism of government activity, one of the concerns voiced about the law has been its potential application to works of satire (Williams 2006). The other two new anti-terror laws to be looked at here constitute a challenge to the age-old principle that people should only be punished once they have been tried and convicted of committing a crime. Under the amended Australian Security Intelligence Organisation Act 1979 (sections 34E, 34G and 34S), individuals can be taken into custody and held for up to one week, even though they may not themselves be suspected of committing a crime. They may simply be suspected of having information that ‘will substantially assist the collection of intelligence that is important in relation to a terrorism offence’ (section 34E (1)(b)). As legal scholar Sarah Joseph has argued (2004, 442), this law possibly breaches the human rights proscription against arbitrary detention in allowing ‘the detention of terrorist suspects and non-suspects without judicial authorisation’. Another criticism of this law concentrates on the restrictions it gives those in custody to legal representation of their choice (Joseph 2004, 441). Finally, the ability of suspects to be taken into preventative detention or be subject to control orders also constitutes a form of punishment without trial. As MacDonald and Williams point out (2007, 46), a person can now be held for up to two days under Commonwealth law and up to a fortnight

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under complementary state laws on the suspicion that a terrorist act is shortly going to occur, or for the purposes of collecting evidence where an act of terrorism has happened in the preceding month. A further mechanism available now to police, without the need for a trial, is to apply for control orders on a person, under which a person is not incarcerated but their movements and freedom to meet with people of their own choosing are restricted. Control orders are issued by a court, but without a regular trial (see MacDonald and Williams 2007, 46–7), and, depending on their terms, they can seriously constrain a person’s movements and activities. Reliant as they are on information provided by government agencies, control orders and preventative detention orders exist as further mechanisms by which power is subtly shifted to the executive at the expense of the legislative and judicial arms of government. The concern these forms of punishment generate is the scope they give for arbitrary exercises of power. These laws enable serious punishments to be inflicted on individuals without the need for, and safeguards imposed by, a standard criminal trial, which ordinarily requires punishments to be inflicted only where convictions have resulted from the satisfaction of a high evidentiary burden of proof. It is worth mentioning that a range of studies has shown how these and other new laws challenge existing criminal law principles. Legal academic Bernadette McSherry, for instance (2004, 360–1), points out how terrorism offences often require prosecutors to prove motive rather than just intention to do a crime. In this way a person’s action only becomes a terrorist offence if it is done with a particular motive in mind (such as the overthrow of a government). This need to explore the reasons for someone’s actions is unusual in the criminal law (generally, it is only relevant in sentencing a person after a conviction has been recorded) and its requirement has clear implications for policing and for the principle of the equality of all before the law (see also MacDonald and Williams 2007, 28–33). The use also of inchoate offences relating to terrorism, such as planning or inciting terrorist acts, gives wide power to authorities to criminalise preliminary activities (McSherry 2004, 366). This, too, is dangerous terrain for the criminal law, as it makes into a crime activities taking place in the stages before a terrorist act is actually committed or attempted. This is risky jurisprudential ground because a person becomes guilty before actually embarking on the prime activity in question (when a person may

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still decide not to proceed) and raises questions of how far back in the chain of events the criminal law might go in stopping terrorist activity. (Should it criminalise any discussion of terrorist plots, no matter how vague and unlikely?) Rather than punishing certain activities, as MacDonald and Williams explain (2007, 34), the creation of these offences ‘reveals a policy of using the law not merely to punish or deter specific conduct, but to prevent such conduct’ (see also McSherry 2004, 366–7). This aim of prevention rather than deterrence could generate a range of unpalatable developments in the criminal law, and thus in policing, ranging from racial profiling to long-term preventive custody.

Parliament as a constraint on government? The adoption of these new laws does not mean that there were no checks and balances in place in Australia to constrain the executive. The lack of a bill of rights did not leave the federal government entirely unconstrained in its anti-terrorism activities. Concern about the separation of judicial and legislative powers in the Australian Constitution, for example, has restricted Commonwealth provisions for preventive detention, limiting such detention to two days (state legislation is not so constrained) (see MacDonald and Williams 2007, 46; Carne 2004). Meanwhile, the implied Constitutional freedom of political communication possibly still has implications for the application of laws restricting membership of ‘terrorist organisations’ (Tham 2004b). In addition, the parliament moderated some of the more ambitious of the former Howard government’s policy ideas. One such, the legislative provision that ended up enabling non-suspects to be detained for up to one week, began life as a rather more extreme proposal. The original 2002 bill had provided for such detention to extend not just for a week, but also possibly indefinitely. As the Senate Legal and Constitutional Legislation Committee wrote, that bill enabled detention to extend beyond two days ‘if certain grounds are satisfied, with no maximum period of detention specified’ (2002a, 5). The ALP’s Senator John Faulkner (Parliamentary Debates Senate 17 June 2003, 11670) described the 2002 version of the bill as ‘perhaps the worst drafted bill ever introduced into the Australian parliament’, and listed among its key failings the provision for indefinite detention.

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When the bill was revised and returned to the Senate in 2003 it had replaced the possibility of indefinite detention with a maximum of seven days for which a person could be detained without charge. Though its preference was for a three-day maximum, the ALP ultimately joined with the government in passing the bill (44 votes to 8), while the Greens and Democrats continued to oppose it (Parliamentary Debates Senate 17 June 2003, 11671; 25 June 2003, 12600–1, 12620). While the Greens argued that the ALP’s support of the legislation made it complicit with the government in the erosion of civil liberties, the ALP claimed its negotiation of the bill in the Senate had ‘stacked [it] with safeguards’. Democrats Senator Brian Greig, meanwhile, made the subtle but important point that it was the Senate, not the ALP, that was responsible for bringing the legislation ‘light years from where it was’ (Parliamentary Debates Senate 25 June 2003, 12617–18). Nor was that the only anti-terrorism provision that the Senate forced the government to make less extreme. To take another example, the original bill enabling the banning of terrorist organisations and which gave the government enormous freedom to ban organisations, provoked a heated community response, a damning Senate Committee report and strong ALP opposition (Senate Legal and Constitutional Legislation Committee 2002b, 58–9; Parliamentary Debates Senate 20 June 2002, 2335). The Labor Party supported the legislation only when changes required organisations first to be listed as terrorist ones by the United Nations before they could be banned in Australia (Parliamentary Debates Senate 20 June 2002, 2337– 8; 27 June 2002, 2814, 2818). Although this requirement for UN listing was subsequently removed from the legislation when it proved ‘unworkable’ (Parliamentary Debates Senate 16 June 2003, 11360), this was another instance when the Senate had resisted simply rubber stamping the government’s legislative agenda. It is important to note here that the Howard government did not have a majority in the Senate when the most significant of the new anti-terrorism laws were being adopted. The Howard government gained a majority – of one senator – in the Upper House in July 2005 (with the Coalition retaining control of the chamber until July 2008), which all but stopped the Senate operating as an effective check on the Howard government. However, the checking power was returned to the Senate upon the election, without a Senate majority, of the Rudd Labor government in 2007.

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Even though the parliament managed to force some changes to be made to the government-sponsored legislation, Australia’s anti-terrorism laws have been criticised for the haste of their enactment (McSherry 2004, 371– 2). Another criticism concerns the laws’ concentration of power in the executive. Political scientist John Uhr (2004) has written about the limited role played by parliament in protecting the public from an overzealous executive, observing that ‘[e]xecutive governments have few if any incentives to invite closer parliamentary scrutiny of government conduct in national security policy and practice’ (2004, 352). Many commentators (for example Michaelsen 2003; Joseph 2004; Williams 2004, Alastair Nicolson, in Mark 2005; Law Institute of Victoria 2007; Eminent Jurists Panel 2006; Hocking 2004 and 2004a; the United Nations (UN) Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism 2007; Lynch et al. 2007) have also argued that the Commonwealth’s counterterrorism legislation breaches Australia’s international treaty obligations, particularly the International Covenant on Civil and Political Rights. When asked directly whether the new Australian laws do in fact breach our treaty obligations former Attorney-General Philip Ruddock replied, ‘We have examined each and every one of these measures against our international obligations. And they do not breach our international obligations’. Ruddock further insisted that ‘[o]ne of the first and primary international obligations that we’re party to is to the protection of the right to life – safety and security. Other rights in international instruments are not absolute’. Some speech freedoms, as well as freedom of movement, were, he said, justifiably ‘restricted in order to preserve people’s right to life’ (quoted in Mark 2005). Soon after he became Commonwealth attorney-general in 2003, Ruddock noted that an ‘unavoidable fact is that any tightening of security arrangements does involve some diminution of rights’ (Ruddock 2003). In an address to the American–Australian Association in New York in July 2005 he compared his predicament to that of Abraham Lincoln who had ‘agonised over whether he should have taken pre-emptive action’ to shorten the American Civil War by arresting rebel generals ‘before they actually committed an offence’. Like Lincoln, who had surmised that the time would come when he would be ‘blamed for having made too few arrests rather than too many’, Ruddock confessed that he did not ‘want to be the AttorneyGeneral’ accused by ‘grieving relatives that it was in my power to do more to

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protect their loved ones’ (Ruddock 2005a, 12–13). Rejecting the traditional view that counterterrorist efforts to increase national security competes with and undermines the protection of human rights, Ruddock claimed to be working within a ‘new theory . . . whereby national security and human rights are not considered to be mutually exclusive’. He said that his ‘human security’ program of legislation ‘protects both national security and civil liberties. Human security requires not only the absence of violent conflict but also respect for human rights and fundamental freedoms’ (Ruddock 2005b, 254). He also suggested that critics of his approach had ‘fail[ed] to recognise a national government’s obligation under Article 3 of the Human Rights Convention [sic] – that is, that governments have an obligation to protect human life’ (Ruddock 2005a, 12). In reiterating this theme on another occasion he suggested that Article 3 of the Universal Declaration of Human Rights (UDHR) explicitly ‘specifies that governments have a responsibility to protect people’s right to life, their safety and their security’ (cited in Walton 2005, 1). Ruddock admitted that while ‘[t]he tightening of security will have some effect on certain rights ‘it does not “unduly jeopardise” them’. He added, though, that ‘the Government has sometimes compromised on these points [human rights] to achieve the overriding goal of enacting new laws to combat terrorism’ (2005a, 255). Commentators, particularly civil libertarians, have disagreed with Ruddock’s interpretation of the state’s obligations under UN treaties; they have also queried his understanding of human security theory. Michael Walton (2005, 1), for example, points out that Article 3 of the UDHR ‘does not guarantee life, safety and security’ but actually states that ‘[e]veryone has the right to life, liberty and security of person’. Walton takes it as significant that Ruddock omits to mention the fundamental right to liberty in his adversions to the Article 3 provisions. Along similar lines, Christopher Michaelsen (2005, 23) disputes Ruddock’s interpretation of Article 3 as creating ‘a positive duty for the state to protect the safety of its citizens’. Although both the UDHR and the ICCPR are intended to protect the right to life, liberty and security of the person, it ‘is widely accepted . . . that this right does not relate to some broader right to safety or to any obligation for the state to protect the physical integrity of its citizens with positive measures’. In fact, ‘the right to life, liberty and security of person as enshrined in Article 3 of the Declaration’ is primarily concerned with confining the powers of the state ‘to coerce individuals through arbitrary arrest and detention’

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(Michaelsen 2005, 23).3 Michaelsen suggests further that Ruddock’s invocation of the idea of human security, whereby human beings rather than states are the focus of ‘security considerations’, is ‘equally problematic’ in the context of defending the anti-terrorism legislation (2005, 23–4). As he quite rightly notes, the concept of human security entails far more than the right to live free of violent conflict; it also includes an extensive range of positive and negative rights that yield conditions as broad as good governance and human flourishing.4 The Eminent Jurists Panel (2006, 31–2) was similarly concerned about Ruddock’s reading of Article 3 of the UDHR, suggesting it meant that he held that ‘any invasion of rights is permissible if it protects the right to life or personal security’. It also pointed out something that they believed he was ignoring, namely, that United Nations General Assembly Resolution 58/174 (10 March 2004) clearly stipulates that ‘measures to counter terrorism must be in strict conformity with international law, including international human rights standards and obligations’.

Case studies: Hicks and Haneef Some of the fears expressed by civil libertarians and legal commentators about Australian anti-terror laws at the time of their enactment have come to be realised. Two high profile terrorism cases, those of David Hicks and Mohamed Haneef, vividly demonstrate the ease with which the rights of terror suspects, especially their right to a free trial, can be infringed in the current environment. These cases are a reminder about the importance of authorities acting with caution when using their new extensive powers and highlight the vulnerability of people arrested outside their country of citizenship in the global ‘war on terror’. David Hicks David Hicks was captured in Afghanistan during the hostilities in 2001 for allegedly attending al-Q’aeda terrorist training courses, including an advanced course in surveillance, in which he conducted surveillance of the US and British embassies in Kabul. Upon his arrest, Hicks was held in detention by the US government first in Afghanistan, and then for the next five years at the US military prison at Guantanamo Bay, Cuba. During his

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last year at Guantanamo Bay, he was held in solitary confinement while he awaited a hearing before the controversial US Military Commission (for details see Lasry 2007). The commission had been established for the purpose of trying enemy combatants caught up in the war on terror. The term ‘unlawful enemy combatant’ was employed by the Bush administration to avoid treating the detainees as prisoners of war, a status that would require that they be afforded protection under the international standards set out in the Geneva Conventions (Tigar 2007). On 31 March 2007, in the first conviction from a US war crimes trial since the Second World War, Hicks was sentenced to seven years imprisonment. He was initially charged on 2 March 2007 under the new Military Commissions Act of committing the crimes of providing material support for terrorism and attempted murder in violation of the law of war.5 During the hearing, the second offence was dismissed by the presiding judge, and under a plea agreement, Hicks’ sentence was suspended by all but nine months. This period was to be served in an Australian prison (Burnside 2007, 172). As part of the agreement, Hicks pleaded guilty to the lesser charge of providing material support for terrorism in return for a reduced sentence; he was also bound by a one year gag order that prevented him from speaking to the media of his ordeal. In the process, he also agreed to drop his lawsuit against the US for alleged abuse and mistreatment (filed in December 2004). Hicks returned to Australia in May 2007 and served out his sentence at Yatala Prison, South Australia. The detention and conviction of David Hicks raises questions about the precarious position of all terror suspects when it comes to their basic rights. The prison itself, and the process by which Hicks was tried and convicted, fell outside existing international, US and Australian legal systems, leaving him and his fellow detainees in a legal black hole. Hicks had no access to a judicial hearing about the length of time he was held in detention without trial. The alleged use of torture at Guantanamo to extract evidence also caused concern among the international legal community (see Robertson 2006; Elliot 2008; International Committee of the Red Cross 2007). Further, the offence with which he was charged and convicted was applied retrospectively (see Law Council of Australia 2007). Prior to the 2006 Military Commissions Act, providing material support for terrorism could not be applied to a non-US citizen. Until now, the strict prohibition on applying laws retrospectively has been a cornerstone of the justice system of most Western liberal democracies.

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While critics directed their strongest condemnation of the treatment of Guantanamo inmates toward the Bush administration, the Howard Coalition government was not immune from censure. The focus of much of this criticism was on the unwillingness of the federal government to take action to bring Hicks (as well as a second Australian inmate, Mamdouh Habib) back to Australia. Unlike Britain and Spain, who both successfully lobbied the US government to return their nationals to their custody, Australia refused to do so (Rosenberg 2008). Prime Minister John Howard and Attorney-General Philip Ruddock maintained that Hicks could not be tried in Australia because his alleged crimes were not illegal in Australia at the time of his capture (Debelle and Nicholson 2006); they continued to express the view that he should be tried in the USA, in spite of the fact that the system under which he was to be tried was found to be unconstitutional by the US Supreme Court, and that the eventual conviction was based on the application of a retrospective law. As Williams and MacDonald argued at the time of trial, ‘If trying Hicks in Australia under a retrospective law is abhorrent, it is hypocritical to support such a trial under the new American law’ (2007). In 2006 when the US Supreme Court ruled that Hicks and other inmates at Guantanamo Bay were protected under the Geneva Conventions, the Australian government maintained its position. The government’s intransigence led human rights lawyer Geoffrey Robertson to suggest that ‘there must come a point at which Australian law officers who willfully authorise or approve an unfair and irregular trial of an Australian citizen become complicit in a grave breach of international law’ (Robertson 2006). Others took it as evidence that the government was willing to ‘sacrifice fundamental principles of due process and the rule of law where accusations of terrorism are involved’ (Eminent Jurists Panel 2006, 3; see also Lasry 2007). In January 2007 the Australian government did eventually pressure Washington to lay charges against Hicks and within a month charges had been filed. There were suggestions that the timing served to ease an impending visit to Australia by US Vice-President Richard Cheney, who needed to arrive with good news for Prime Minister Howard (Elliot 2008). With increasing public criticism over the federal government’s handling of Hicks’ incarceration, the laying of charges meant that a negative item was removed from the government’s agenda in an election year. When Hicks walked out of the Yatala Prison in December 2007 after serving his sentence, he was not a free man. As soon as he left prison he

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was subject to a 12 month control order (with the possibility of renewal) on the grounds that he was a risk to society. As noted, these orders had been added to the Commonwealth Criminal Code in 2005 with the purpose of preventing a terrorist attack (Lynch and Williams 2006, 42). The application of the control order in Hicks’ case was controversial as he had never been found guilty of a crime in an Australian court, and no test had been applied to determine the degree of risk he posed to society. The control order limited Hicks’ freedoms of communication and movement by forcing him to reside in South Australia, placing him under a curfew and requiring him to report regularly to police (see Walters and McAteer, 2007). Some commentators saw the application of these control orders to the Hicks case as an overreaction, especially given the manner in which the case was ultimately resolved (Burnside 2007, 172–3). Obviously, the incoming Rudd government did not. While the applications of these provisions were initially raised under the Coalition government, they were enforced by new ALP Attorney-General Robert McClelland. It was in the power of the attorneygeneral to remove or change the conditions of the control order but he left them intact. In 2008 a magistrate relaxed the control order to allow Hicks to move between states and attend the police station twice rather than three times a week (Dowdell 2008). On 20 November 2008, the Australian Federal Police stated it would not be seeking an extension of Hicks’ control order. Mohammed Haneef When it comes to terror suspects the case of Dr Mohammed Haneef also highlights a number of concerns about the application of the law as well as the potential for overreaction by law enforcers. On 2 July 2007 Haneef, a 27-year-old medical registrar working at a hospital on the Gold Coast, was arrested at Brisbane airport by AFP officers while attempting to board a flight to India. The AFP was acting on intelligence that Haneef was involved in a terrorist bombing at Glasgow airport in which persons known to him were alleged to be involved. The AFP had been informed – erroneously, as it turned out – by intelligence agencies in Britain that a SIM card found in the wreckage of the bomb blast at Glasgow belonged to Haneef and that he had lived with the alleged co-conspirators (Dodd and McMahon, 2007). In the 11 days after his arrest, search warrants were executed, associates at the hospital interrogated and Haneef held without charge in AFP custody using new AFP powers under section 23CA of the Crimes Act. It was not until 4 July that he was finally charged, under section 102 of the Act, with

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intentionally providing resources (a SIM card) to a terrorist organisation and being reckless as to whether the organisation was a terrorist organisation. The maximum sentence for this crime is 15 years imprisonment. Once charged, Haneef was released from AFP custody into the regular criminal justice system. Awaiting trial, the magistrate granted $10 000 bail on condition of a strict monitoring schedule after Haneef surrendered his passport. Hours later, the federal immigration minister, Kevin Andrews, intervened. He revoked Haneef’s visa on ‘character grounds’ after receiving undisclosed information about his association with the alleged terrorists. This executive act circumvented the magistrate’s decision to release him and Haneef was taken back into custody (White 2007). The minister’s involvement caused a furore in legal circles and prompted Haneef’s own lawyers to take the highly unusual (and illegal) step of releasing to the media a transcript of the AFP’s interrogation of their client. The transcript showed that the two central tenets on which the case was based were unfounded. In the original interview it was clear from the timeline that Haneef vacated the flat before the suspects arrived. Detectives in London further confirmed that the SIM card was found in Liverpool, not at the scene of the attack in Glasgow. With conviction now highly improbable, the prosecution withdrew all charges against Haneef on 27 July, nearly four weeks after his arrest. His passport was returned, but without work authorisation, and Haneef boarded a flight to India within hours of his release. At the time of writing Haneef has not returned to Australia, although he is now legally able to after a Queensland court found in August 2007 that his visa should be reinstated. The incoming Labor government established an inquiry into the matter, headed by retired New South Wales Supreme Court judge John Clark QC. The Clarke inquiry reported to the attorney-general in November 2008 that it found no evidence of Haneef’s involvement in the Glasgow attacks, and was critical of former immigration minister Andrews’ decision to cancel Haneef’s visa and some of the actions of the AFP and the Office of the Commonwealth Director of Public Prosecutions. Among his 10 recommendations (all of which the government accepted) Clarke called for an independent reviewer to be appointed to oversee Australia’s anti-terrorism laws, and for changes to the operation of the AFP and Immigration Department (Attorney-General’s Department 2008; Lynch 2009). The Haneef case highlighted a number of concerns that civil libertarians have expressed about the new anti-terror laws. It showed that the broad definition used in relation to the crime of associating with a terrorist

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organisation was open to abuse. Similarly, the ability of the AFP to hold Haneef in detention without charge under the Crimes Act for a total of 12 days by using the loophole of ‘dead time’6 demonstrated that these powers could also be manipulated such that ‘the detainee is subjected to the possibility of indefinite detention’ (see Williams 2007; Lynch et al. 2008). The operation of the immigration law was also condemned on the grounds that [t]he minister can cancel a visa in the ‘national interest’ using secret information and without allowing the person to put their case. This power is open to political manipulation and, as in Haneef’s case, can be used to circumvent the justice system. (Williams 2007)

At a more general level, the Hicks and Haneef cases demonstrate how vulnerable particular categories of people – in these cases those who are out of their country of citizenship at the time of their arrest – are to rights abuses. For Hicks and Haneef, their right to a fair trial was seriously impaired because they were arrested and eventually charged in countries where they were non-nationals. This meant that they were treated unequally before the law and had little recourse to existing rights protection measures. Given the global nature of the war on terror, this is a serious concern.

Proportionality These are just two case studies that underline how important it is for legislative measures to counter terrorism to be proportionate to the level of threat; otherwise they unjustifiably threaten the recognition and enjoyment of those human rights that liberal democracies hold dear. Some new laws are relatively anodyne. The ASIO Act 2003, for example, includes provisions allowing Australian Security and Intelligence Organisation (ASIO) officers to conduct security assessments of people involved in the manufacture, importation, transportation, possession and use of ammonium nitrate, a substance commonly used as an agricultural fertiliser but often used by terrorists in the making of explosives (Ruddock, 2004). Other measures are less proportionate, and therefore less benign. For example, as mentioned, non-suspects can be detained under ASIO legislation for up to one week without any suspicion that they themselves have committed any crime.

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The definition of what constitutes a terrorist offence is extremely broad and therefore overly capacious of interpretation. A terrorist offence includes a range of offences, many of which have only a tenuous link with the carrying out of a terrorist act (Hocking 2004, 323). The new legislation further gives the attorney-general powers to proscribe any organisation deemed to be terrorist (that is, ‘directly or indirectly engaged in preparing, planning, assisting in or fostering the doing of a terrorist act’) but this leaves the attorney-general with considerable discretionary power in determining which organisations can be proscribed, despite the fact that proscriptions are also meant to be subject to parliamentary and judicial review (Tham 2004a, 528–9). Criticism of the terrorism laws has been especially vigorous among libertarians and members of the legal profession, who have described them as, among other things, ‘draconian’ and a threat to ‘the fundamental values of an open and democratic society’(for example, Eminent Jurists Panel 2006; Tham 2004a; Williams 2003 and 2004; Michaelsen 2005 and 2005a; Law Institute of Victoria 2007). According to political commentator Jenny Hocking, the Australian government’s war on terror is not ‘simply endangering key liberal democratic values. It is threatening to vitiate democracy itself, reducing politics to security’ (Hocking 2004, 338). For law academic Joo-Cheong Tham the anti-terror laws ‘stifle public discussion, implicitly sanction lawlessness by ASIO and confer arbitrary power upon the executive’ (Tham 2004a, 512).7 Though it is admitted by some of these critics that ‘[t]he threat of terrorism is real’ (Eminent Jurists Panel 2006, 32, for example) laws drafted to meet this threat have been perceived as an overreaction to the extent of the threat posed. They are seen to be particularly egregious in the Australian case because, unlike most comparable settings, we lack a bill of rights against which such laws can be tested. And, unlike the UK, for example, where similar laws have been enacted, we do not have a Human Rights Act and do not have recourse to a supranational court of appeal such as the European Court of Human Rights (Eminent Jurists Panel 2006, 32). The level of secrecy surrounding the government’s anti-terrorist regime has also attracted opprobrium. In 2003, amendments to the ASIO Act brought about more stringent secrecy provisions in relation to public disclosure of the implementation of the government’s detention regime. The laws prohibited the disclosure of any operational information about ASIO’s existing warrants, ‘including even the name or fact of an individual being

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detained under warrant’(Hocking 2004, 328). The penalty for any breach of this law is five years imprisonment, regardless of whether the warrant is improper or illegal. Since the term ‘operational information’ is loosely defined as ‘information that [ASIO] has or had’ it is hard to judge what level of reporting (if any) on ASIO’s activities is allowed (Hocking 2004, 329). The new laws evoked consternation among Australia’s media, representatives of whom wrote in a letter to the Senate that ‘[s]uch a measure . . . is capable of being used by the government against Australian citizens while providing little tangible benefit save for a complete media blackout of those matters that are so important to this political climate’ (cited in Mitchell 2003, 1). In an effort to protect journalists from prosecution should they disclose any information that did not threaten national security, the Greens attempted to have a public interest test incorporated into the legislation; they were unsuccessful (Hocking 2004, 329). The new secrecy offences not only confer greater and seemingly arbitrary powers upon ASIO but also provide them with immunity from legal challenge since the disclosure of any information regarding the exercise of these powers is now an offence (Tham 2004a, 528). Others have queried the need for new laws. According to the Law Institute of Victoria (2007) ‘the criminal law as it stood prior to the amendments to counterterrorism, security and telecommunications interception laws since 2001 was adequate to deal with security and terrorism offences’. This point prompts some interesting questions. What is it about terrorism that requires new laws to deal with it? Why can’t terrorism be handled using laws that already exist to deal with a range of other crimes? Is the organised nature of terrorism its unique and defining feature? If so, why aren’t existing mechanisms to deal with organised crime adequate? Should the political nature of terrorism make any difference? Should the innocence of its victims have any bearing on how it should be tackled? Aren’t there other hazards in Australia today that pose a far more serious threat to human life than that of terrorism? The danger to the community posed by alcohol abuse, especially drunk driving, is almost certainly far greater than that posed by terrorism and yet the response to this demonstrable risk has been timid and extremely modest by comparison. Consider the facts. Since September 2001 around 100 Australians have been killed by terrorism (11 Australians died in the World Trade Centre attack and 88 died in the Bali bombings); around 8000 have been killed by alcohol or in alcohol-related incidents.8

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Is Australia at risk? The necessity or otherwise of special terrorism laws also gives us pause to consider: How much safer are we since their inception? Further, how likely is a terrorist attack on Australian soil? Clear answers to these questions are necessary if we want to make judgements about the reasonableness of the new laws. How do we know which (if any) freedom trade-offs are required when it is so difficult to gauge the real magnitude of the threat? The evidence around this issue is scant and mixed. In 2004 Prime Minister Howard confirmed that Australia is ‘a target for terrorists’, but added that it is not ‘as big a target as some other countries’ due to the fact that ‘we don’t have terrorist cells operating in Australia’, unlike Spain, for example, ‘which does have an al-Q’aeda presence’ (Howard, quoted in Kirk, 2004). In 2003 the World Market Research Centre risk assessment panel ranked 168 countries for likelihood of a terrorist attack. Australia was placed at 38, which is medium to high but well below the US ranking of fourth and Britain’s tenth (Healy 2004, 10). There has never been a successful terrorist attack in Australia; further, the National Counter-Terror Alert Level has been at medium since the four-graded system (low, medium, high and extreme) was introduced in June 2003 (Eminent Jurists Panel 2006, 2). This is not to suggest that no terrorist activity has been detected in Australia; in fact it has. In 2004 Jack Roche pleaded guilty to charges under s. 8 (3C)(a) of the Crimes (International Protected Persons) Act 1976 (Cth) of conspiring to bomb the Israeli embassy in Canberra and on 1 June 2004 was sentenced to nine years in prison. On 6 April 2005 Zaky Mallah was acquitted by a jury of charges of committing an act in preparation for or in the planning of terrorist act, contrary to s. 101.6 of the Criminal Code Act 1996 (Cth) (CCA). He pleaded guilty to a charge of threatening to kill a Commonwealth officer and was sentenced to 2.5 years imprisonment. On 26 February 2006 a jury found Joseph Terrence Thomas guilty of receiving funds from a terrorist organisation and using a falsified passport . . . On 8 November 2006 17 people were arrested on terrorism related charges in simultaneous raids in Sydney and Melbourne. (Eminent Jurists Panel, 2006, 2)9

Other terrorist activity involving Australians include the Bali bombings of 2002 in which a significant number of Australians were either killed or badly

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injured. It is a widely held belief that Australians were deliberate targets of the attack. Finally, in 2004 there was an attack on the Australian embassy in Jakarta (Eminent Jurists Panel 2006, 2). But whether the current counterterrorism regime is proportionate to the risk is another matter. This is partly because of the high level of secrecy cloaking anything to do with terrorism. As Mark Rix has noted, the question of proportionality is impossible to determine for anyone who is not on the staff of the federal Cabinet or the security and law enforcement agencies (Rix 2007, 9). The question of how much longer such measures will need to be in place is also uncertain, an uncertainty that is compounded by public statements issued by Western leaders to the effect that the war on terror will be ‘a global enterprise of uncertain duration’ (Bush 2002) and that ‘[t]he war we are engaged in now may not end in my life time’ (Ruddock 2005a, 18; Howard 2006; Rix 2007, 9). It is highly likely that the new counterterrorism measures will endure beyond the period of threat due to the natural tendency of governments to jealously cleave to any powers they have managed to retain or secure for themselves. Laws introduced in the 1970s to combat the IRA in Northern Ireland and the Red Army Faction in Germany were still in place in November 2001, after which they were tightened still further. As Michaelsen suggests, ‘[i]t is rather unlikely that Australia’s anti-terrorism legislation will be an exception to this rule’ (Michaelsen 2005a, 334). Although sunset clauses are commonly held to be useful safeguards against unwarranted periods of rights abridgements this is not necessarily the case. The UK’s Prevention of Terrorism (Temporary Provisions) Act (1974–89), for example, designed to deal with the IRA, did have a sunset clause that was subject to an annual parliamentary vote. Yet this did not lead to its abandonment in spite of a ‘cessation of mainstream IRA subversive activity’ (Gearty 2007, 341). Similarly, in Australia, the terrorism provisions added to the ASIO legislation in 2003 have been extended beyond their initial review date and now have a sunset clause of July 2016 (ASIO Act 1979, section 34ZZ), which could easily be extended again. Even though it is difficult to gauge whether the Australian state’s legal reaction is proportionate to the threat posed it is probably safe to assume that there has been some degree of overreaction given the extent of rights abridgements allowed by the laws coupled with the fact that the National Counter-Terror Alert Level has never risen above medium. Certainly, the

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former Howard government had much to gain politically by overstating any such risk, especially on the eve of an election. In the wake of the 9/11 attacks and the Bali bombings, the Howard government launched a highly publicised campaign to promote public awareness of terrorist threat. The most vivid and perhaps alarming aspect of this program was an anti-terrorism kit distributed to all Australian households in early 2003. The government used the kit to promote its response to terrorism and to enlist the Australian public in efforts to prevent and deal with terrorist attack. Security specialist Matt McDonald has suggested that the kit deliberately ‘portrayed the threat of terrorism as imminent and ubiquitous’ in order to position ‘militaristic responses to this threat’ (such as the war in Iraq) and restrictive anti-terrorism legislation (such as the ASIO Act) as the most appropriate means for dealing with it (McDonald 2005, 171). If this is true, then the campaign was probably a success. An opinion poll published in the Sydney Morning Herald in April 2004 found that 68 per cent of Australians believed that a terrorist attack on Australian soil was imminent (cited in Michaelsen, 2005, 330). Robert Goodin describes the Neighbourhood Watch approach to counterterrorism as a ‘particularly perverse’ aspect of the former government’s war on terror. As he quite sensibly points out, ‘Just how likely is it that ordinary citizens are going to stumble across a facility for storing enriched uranium or anthrax that the intelligence services have missed?’ This strategy, he suggests, has low benefits and high costs in terms of the ‘damage to the populace’s peace of mind’. But the worst damage is inflicted on liberal democracy itself because instilling fear in a population ‘undermines rational discourse’ and ‘deprives us collectively of the capacity to be genuinely self-governing, reasoning together’ (Goodin 2006, 154, 157–9). In any attack upon a constitutional democracy, a key aim of terrorists is not merely to retaliate, destroy, disrupt and terrify. More insidiously, terrorists hope to destabilise and delegitimise liberal democratic regimes, to generate doubt that they are capable of coping with violence and conflict, that is, of providing security. Terrorists’ ultimate goal is to reduce the society ‘to pockets of frightened individuals concerned only with their personal safety’ and therefore willing – even desperate – to trade rights for security. In effect terrorism aims to ‘destroy the very structure that enables a liberal and democratic way of life to exist in the first place’ (Chalk 1998, 376). Terrorist attacks on liberal democracies also lead their citizens to regard the

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strengths of such societies – ‘public debate, mutual trust, open borders, and constitutional restraints on executive power’ – as ‘weaknesses’ that may, and perhaps should, be jettisoned (Ignatieff 2004, 80–1). This is why Goodin has condemned anti-terror scaremongering on the part of liberal states as another form of terrorism (terrorism being defined as the strategic use of fear for political advantage) since it makes liberal-democratic states complicit with their terrorist adversaries in the erosion of the liberal democratic way of life that they claim to be defending (Goodin 2006, passim). If the goal of terrorists is to cause liberal democratic citizens to doubt the value of their vital and hard-won institutions, they seem to have been successful in the Australian case. It would certainly explain why Australians seem willing to allow their already precarious freedoms to be traded for the sake of a security that may be unnecessary and perhaps illusory. In any case, Michaelsen considers Australia to be an unlikely terrorist target for a number of reasons. First, Australia is a ‘poor strategic choice’ because, although it is ‘undoubtedly seen as a Western country’, it fails to qualify as a Western sponsor of those ‘Arab regimes’ that al-Q’aeda now routinely targets. Further, ‘[c]ontrary to common belief, Jemaah Islamiya is not a branch office of the bin Laden network’ (Michaelsen 2005a, 331 (this view is disputed; see Sherlock 2002). Apart from being a ‘bad strategic choice’, Michaelsen also suggests that we are unlikely targets due to our geographical isolation and our ‘effective system of border and immigration control’. He suggests that, unlike European countries, Australia enjoys considerable insulation through the ‘so-called sea–air gap’. Accordingly, he regards Australia’s terrorism laws as ‘a clear overreaction’ inspired more by ‘politicians wanting to appear resolute and virtuous’ than ‘by legal principle’ (Michaelsen 2005a, 333). Michaelsen may be right but some of these claims may also be controvertible (see, for example, Sherlock 2002). The problem is that, as liberal-democratic subjects attempting to gauge whether the government’s response is proportionate to the risk, we lack the right conditions and resources to make that assessment.

Options But assuming it is possible to accurately make that assessment, what should we do when confronted with terrorism? Can any liberal-democratic regime

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defend itself without dereliction of the first duty of the state (security) and without also destroying its own soul (its core values of toleration, individual rights, universalism, equality before the law and rule of law)? Liberal democracies place a high value on the rights and freedoms of each and every citizen. Liberal international law likewise requires us to acknowledge that foreigners, non-citizens and even our enemies have rights. But are there any conditions under which an abridgement of the rights of others might be permissible, especially in light of the fact that once they are lost, they are extremely difficult to claw back? This is a particularly fraught question in a place such as Australia where there is no bill of rights from which to mount such a clawback. According to Goodin, no action is necessary. The best response is to simply ignore terrorists: ‘Extraordinary security measures fulfil the wildest fantasies of the terrorists. They want the mighty to tremble. Why give them what they want, in that way?’ (Goodin 2006, 159). There is some logic to this suggestion but it could be a risky strategy (again, how can we be sure either way?). Further, ignoring terrorists is doubtless ‘psychologically’ and especially ‘politically impossible’ (Townsend 2002, 116). Yet it is hard to see what either securitists or libertarians have to offer by way of a complete answer to the question of how best to proceed. Curiously, a mantra common to securitists and libertarians alike, in their rhetoric at least, is a contradiction of the traditional assumption that counterterrorism efforts always involve a trade-off between security and rights. Both sides suggest that rights and security are perfectly compatible once they have been properly understood. The previous government repeatedly asserted that security equals rights (Ruddock, in Ackland 2004; Ruddock 2004), while those critical of the government argue that rights equal security (Michaelsen 2005; Hocking 2004).10 But when the logic of their substantive claims are followed through, each side implicitly (and sometimes explicitly) demands that either security or rights is trumps. Whereas majoritarians such as Ruddock argue that collective security is the primary right, libertarians and other critics of the current security regime argue that the best defence against terror lies in an unwavering commitment to the indissolubility of individual rights and the rule of law. It is hard to avoid the conclusion that both sides are missing something and perhaps refusing to face up to the tragic character of the tension between the necessary and the right that emergencies inevitably evoke (Gross 2003; Ignatieff 2004, 29).

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Can the state really meet its duty to protect the population from violence through the fortification of human rights alone? Some form of controlled force does seem unavoidable. Human rights were developed principally as a means by which citizens could protect themselves from violence and arbitrary interference from the state but this sequence should not be confused with the problem of violence and arbitrary interference perpetrated by fellow citizens and especially hostile foreigners.11 Strengthening – or at least standing firm on – rights in times of emergency is certainly the best way of protecting liberal democracy from fear-driven self-injury to its soul but not from a direct and violent attack upon its matrix. As academic Conor Gearty notes ‘[i]t is both inevitable and right that all legally enforceable human rights instruments in a democracy should allow for exceptions and derogations in the interests of national survival’ (2007, 349). One the other side, it is hard to see how a broad program of rights abridgement, such as currently prevails in Australia, could be seen as a positive service to human rights (nor does it bear any resemblance to the values embodied in human security theory; see above). Of course, it is true that the basic right to life can be well protected by a muscular or even moderate security regime, but it is hard to see how liberal-democratic freedoms will be enhanced by such efforts, except to the extent that freedom must have a matrix and that matrix is the liberal-democratic society or state that is under attack. But if the matrix of liberal-democratic society no longer protects the soul of liberal-democratic society or if the soul prevents the matrix from doing its protective job, then we have a problem. Something has to give but that surrender cannot be one sided. In other words, we cannot continue to insist that either rights or security are trumps in all places and at all times without doing some damage to some part of liberal democracy. Both the soul and the matrix must be protected. Let us be clear here. We do not endorse the Howard–Ruddock government’s response to terrorism. We regard it, for the most part, as a destructive and cynical overreaction. But we also insist that the state’s duty to provide security should not be trivialised. The problem with the Howard government’s approach to security was that it acted as if (and apparently sought to create the impression that) Australia has been in a state of emergency since 2001. But as far as we can tell, given the almost impenetrable veil of secrecy, it has not. At the same time, nor does it seem accurate to say that there has been no threat at all.

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A third way In his attempt to find a middle ground between the strict libertarian position that no rights violations are permissible and the pragmatic position whereby anti-terrorist measures are deemed acceptable so long as they get the job done, Ignatieff, in his book The Lesser Evil, has argued that the most effective response to terrorism is decisive force prudently constrained (2004, viii). Force, he says, need not undermine liberal democracy and may be necessary for its survival. Paradoxically, in defending the proposition that the political life of liberal democracies should be free of violence, the use of violence may be called for; so too may ‘coercion, deception, secrecy and violations of rights’ (Ignatieff 2004, vii). The real question for Ignatieff is not whether rights violations should be avoided but, rather, how they can be violated ‘without destroying the values for which they stand?’ In other words: ‘How can [we] resort to the lesser evil, without succumbing to the greater?’(Ignatieff 2004, vii). In this view, neither liberty nor majoritarian security interests ‘have trumping claims’. Instead, we must accept that there are times of emergency when these claims do, in fact, directly compete, so we should resolve to balance them but only ‘on the assumption that pre-commitments made in times of safety should be maintained, as far as possible, in times of danger’ (Ignatieff 2004, 32). Because reasonable people committed to liberal democratic ideals and security will still tend to disagree on where the bright line for any acceptable abridgements may lie (substance), it is vital that they ‘agree at least to strengthen the process of adversarial review that decides these matters’ (process). If they can agree on process at least, then democracy may be preserved ‘both from our enemies and from our own zeal’ (Ignatieff 2004, viii). Any violation of rights in a terrorist emergency must be carried out with extreme conservatism, that is, with transparency, due process, adversarial proceedings and appropriate sunset clauses: We need judges who understand that national security is not a carte blanche for the abrogation of individual rights; a free press that ferrets out the information an executive may wish to alter or withhold in pursuit of national security; a legislature that will not allow national security to prevent it from fulfilling its function of checking executive power. If a system of constitutional checks and balances continues to function effectively, that is, if power continues to be

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subjected to the test of adversarial justification, there is no reason to fear that a war on terror will lead us to betray the values we are fighting for. (Ignatieff 2004, 80–1)

Ignatieff thus countenances ‘emergency suspensions of rights in times of terror’ but only on the condition that governments are able to ‘justify such measures publicly, to submit them to judicial review, and to circumscribe them with sunset clauses so that they do not become permanent’. Rights are not unassailable in times of emergency; but respect for them must remain constant and this requires ‘that all rights infringments be tested under adversarial review’ and that any exceptions are ‘temporary, publicly justified, and deployed only as a last resort’ (Ignatieff 2004, viii). Accordingly, in the event of a terrorist attack (that constitutes a national emergency) abridgments of liberty are justifiable but only on condition that such abridgements ‘do actually enhance security’ and that it is agreed that some practices, such as torture, unlawful assassinations and renditions are ‘beyond the pale’ (Ignatieff 2004, viii, 136–43). If these conditions are satisfied, then, Ignatieff suggests, the detainment (without trial) of suspects should be lawful but only ‘until the nature of the risk they pose can be determined’. He also insists that suspects must have legal representation and that their detention should be subject to close judicial review (Ignatieff 2004, 29). As we have seen, few of these conditions are fully met in the Australian case, largely because of the unusually wide discretionary powers conferred on the executive by the anti-terror laws. Further, Australia is not in a state of emergency – only of alertness – therefore even the lesser evil approach would condemn our current security regime as an overreaction. The problem lies in knowing when a public emergency is upon us. Ignatieff uses consensus as his guide here: While it is presidents and prime ministers who declare emergencies, their use of this power can be subjected to democratic regulation. There must be some consensus, among the public and their elected officials, that the executive is justified in declaring one. Where this consensus does not exist, the proclamation of an emergency will be regarded as an abuse of executive prerogative. If the institutions of adversarial review in a democracy are doing their job, they will resist and set limits to both the proclamation of emergency and the exercise of prerogative. (2004, 36–7)

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On this view, September 11, for example, was an obvious emergency because of the wide consensus that it was. But we can do more than just apply the consensus standard. While both the ICCPR and the ECHR lack a precise definition of ‘public emergency’, jurisprudence arising out of cases that have appeared before the European Court offers some useful guidelines. A public emergency must ‘be actual or imminent. Its effects must involve the whole nation’; it must be disruptive to the ‘organised life of the community’ and the ‘danger must be exceptional, in that the normal measures or restrictions permitted by Convention for the maintenance of public safety, health and order, are plainly inadequate’ (Michaelsen 2003, 288–9). Assuming that we can trust our leaders to declare emergencies in good faith, Ignatieff offers a list of other lesser evils that are acceptable if we are to negotiate some balance between the maintenance of human rights (the soul of liberal democracy) and security for the community or state (the matrix of liberal democracy): executive proscription of organisations must be subject to judicial review (Ignatieff 2004, 30), an ‘intrusive regulation of market transactions of all kinds’ is reasonable in order to regulate and control ‘the small portion of international trade that poses a danger to our survival’ (Ignatieff 2004, 159–60), tighter regulation of the production and communication of scientific research is acceptable,12 as is pre-emptive military action that forestalls greater harm (Ignatieff 2004, 162–7).13 According to Ignatieff, ‘[m]ost human rights conventions’ admit suspensions of rights in emergencies but he reminds us that such admissions imply an acceptance that human rights are not, as libertarians claim, ‘a system of indivisible absolutes’. To those who would argue that this reduces rights ‘to pure instruments of political expediency’, Ignatieff responds that ‘realistic rights constraints are more likely to be effective than unrealistic ones’ (2004, ix). To those who complain that the above constraints ‘tie the hands of our governments’, Ignatieff replies that ‘[i]t is the very nature of democracy that it not only does, but should, fight with one hand tied behind its back’(Ignatieff 2004, 24). Speaking specifically of the Australian context, security analyst Peter Chalk has a similar, though less detailed, wish list of conditions that would place realistic limits on any counterterrorist regime and ensure that any measures are of the lesser evil order: ‘First the response needs to be limited and well defined’, that is, it should not exceed what is ‘demanded by the exigencies of the immediate situation’, and should be strictly limited to ‘the

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terrorist themselves’ rather than their families or sympathisers. The second condition is that ‘the response needs to be credible’. In other words, the public must be convinced that the state’s action is appropriate for ‘combating terrorism and protecting civil liberties’. Finally, ‘the introduction, use and continuance of all counter-terrorist measures, especially those initiated by the intelligence services’, should be subject to close and constant parliamentary and judicial oversight. Only under these conditions, suggests Chalk, ‘will anti-terrorist law enforcement action be accepted as a necessary evil that has been forced by the threat of extremist political violence rather than one conveniently excused by it’ (Chalk 1998, 386–8).

Conclusion One way of ensuring that Australian anti-terrorism laws are subject to the kind of liberal democratic adversarial processes that keep them proportionate is to have rights protections spelled out in a charter of rights. Such a charter could generate a fruitful dialogue about rights within parliament and between parliament and the courts. Recent parliamentary debates in the UK on a counterterrorism bill that would, among other things, allow police to hold terror suspects without charge for a period of 42 days provide some interesting food for thought about the difference a legislative bill of rights might make to the process of creating and amending anti-terror laws. Under the UK’s Human Rights Act, the government is required to make a statement of compatibility of any new law with the ECHR. Home Secretary Jacqui Smith has done this in relation to extending the detention provisions and has argued that they do not constitute a breach of the right to liberty provisions under the Convention. In defending her position, the secretary has argued that the need to detain terrorist suspects for longer than non-terrorist suspects before charging them is necessary because preventative arrests mean that not as much evidence as is usually required has been gathered at the time of the arrest, terror networks are often international, ‘requiring enquiries to be made in many different jurisdictions and often requiring finding interpreters for rare and remote dialects’ and ‘terrorist networks are increasingly using sophisticated technology and communications techniques’ that take more time to investigate and penetrate (House of Commons 2008).

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Smith’s justifications might suggest that the HRA has made little difference to the protection of rights: they disregard the spirit, if not the letter, of the right to liberty clause in the ECHR and attempt to justify further incursions on rights in terms of past incursions. However, the secretary’s position is not the last word on the matter. While the legislation made it through the House of Commons with some minor amendments, it faced strong opposition before the House of Lords from all sides of politics, including senior Labour MPs. After a lengthy debate and in an embarrassment to the Brown Labour government, in October 2008 the bill was roundly defeated by the Lords by 309 votes to 118 (Economist 2008). Some would consider this outcome as nothing more than the effect of an Upper House chamber doing its reviewing job but we suggest that it indicates more than that. The HRA, aside from requiring government reporting, has arguably engendered a stronger rights culture within parliament.

References Ackland, Richard, 2004. ‘Tolerating Shackles to Our Freedom.’ Sydney Morning Herald, 26 March. Attorney-General’s Department, 2008. ‘Australian Government response to Clarke Inquiry into the Case of Dr Mohamed Haneef.’ December. Accessed online at www.ag.gov.au/www/agd/ag.nsf/Page/Puglications AustralianGovernmentresponsetoClarkeInquiryintotheCaseofDrMohamedHaneef-December2008, 8 February 2009. Burnside, Julian, 2007. Watching Brief: Reflections on human rights, law and justice. Melbourne: Scribe. Bush, George W., 2002. Press release, 17 September. Accessed online at www.whitehouse. gov/nsc/nss/2002/nssintro.html, 14 May 2008. Carne, Greg, 2004. ‘Detaining Questions or Compromising Constitutionality?: The ASIO Legislation Amendment (Terrorism) Act 2003 (Cth).’ University of New South Wales Law Journal, 27: 524–78. Chalk, Peter, 1998. ‘The Response to Terrorism as a Threat to Liberal Democracy.’ Australian Journal of Politics and History, 44(3): 373–88. Debelle, Penelope and Brendan Nicholson, 2006. ‘Hicks turns up heat on PM.’ Age, 12 May. Dodd, Vikram and Barbara McMahon, 2007. ‘Australian police hit back over arrest of bomb plot suspect.’ Guardian, 30 July. Dowdell, Andrew, 2008. ‘David Hicks Control Order Relaxed.’ Herald Sun, 20 February. Economist, 2008. ‘Down but not out: The Lords deal[s] a blow to the government’s anti-terrorist plans’. 16 October edition. Accessed online at www.economist. com/world/britain/displaystory.cfm?story id=12429644, 17 October 2008.

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Elliot, Geoff, 2008. ‘Hicks case pushed to suit Howard agenda.’ Australian, 25 February. Gearty, Conor, 2007. ‘Terrorism and Human Rights’. Government and Opposition, 42: 340–62. Golder, Ben and George Williams, 2004. ‘What is “Terrorism”? Problems of Legal Definition.’ University of New South Wales Law Journal, 27: 270–95. —— 2006. ‘Balancing National Security and Human Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism.’ Journal of Comparative Policy Analysis, 8: 43–62. Goodin, Robert E., 2006. What’s Wrong with Terrorism?. Cambridge: Polity Press. Grattan, Michelle and Brendan Nicholson, 2008. ‘Andrews spared worst in Haneef inquiry.’ Age. Accessed online at www.theage.com.au/national/andrews-sparedworst-in-haneef-inquiry-20081222-73pf.html?page=-1, 8 February 2009. Gross, Oren, 2003. ‘Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?’ Yale Law Journal, 112(5): 1011–34. Healey, Justine (ed.), 2004. Terrorism, Thirroul: The Spinney Press. Hocking, Jenny, 2004. ‘Protecting Democracy by Preserving Justice: “Even for the Feared and Hated”.’ University of New South Wales Law Journal, 27(2): 319–38. —— 2004a. Terror Laws: ASIO, Counter-terrorism and the Threat to Democracy. Sydney: UNSW Press. House of Commons, 2008. Explanatory Note Counter-terrorism Bill. European Convention on Human Rights. Accessed online at www.publications.parliament. uk/pa/cm200708/cmbills/063/en/08063x-d.htm#index link 100, 14 July 2008. Howard, J., 2006. ‘A Sense of Balance: The Australian Achievement in 2006.’ Transcript of address to the National Press Club by Prime Minister the Hon. John Howard, MP, Great Hall, Parliament House. Accessed online at www.pm.gov.au/news/speeches/speech1754.html, 6 February 2007. Ignatieff, Michael, 2004. The Lesser Evil: Political Ethics in an Age of Terror. Edinburgh: Edinburgh University Press. International Commission of Jurists Eminent Jurists Panel, 2006. Sydney Public Hearings 14–15 March, 2006. Summary presented by New South Wales Council for Civil Liberties. Accessed online at www.nswccl.org.au/docs/pdf/ICJ%20submission.pdf, 15 May 2008. International Committee of the Red Cross, 2007. Washington Regional Delegate Report. Accessed online at http://icrc.org/web/eng/siteeng0.nsf/htmlall/ 738dx5/$file/icrc ar 06 washington.pdf?openelement, 8 July 2008. Joseph, Sarah, 2004. ‘Australian Counter-Terrorism Legislation and the International Human Rights Framework.’ University of New South Wales Law Journal, 27: 428– 53. Kirby, Michael J., 2005. ‘Terrorism and the Democratic Response 2005.’ University of New South Wales Law Journal, 28(1): 221–44. Kirk, Alexandra, 2004. ‘Government Argues Against Increased Terror Threat’. The World Today, 16 March. Lasry, Lex, 2007. ‘The United States V. David Matthew Hicks.’ Final report of the Independent Observer for the Law Council of Australia. Accessed online at www. lawcouncil.asn.au/hicksjustice.html, 9 July 2008. Law Council of Australia, 2007. ‘Jurists Conclude that Hicks’ Charge is Retrospective.’ Media release. 8 March. Accessed online at www.lawcouncil.asn. au/read/2007/2435666831.html, 9 July 2008.

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Law Institute of Victoria (Geoffrey Purvis, President), 2007. Letter to the Hon. Philip Ruddock, Attorney-General, 3 May 2007. Accessed online at www.liv.asn.au/ members/sections/submissions/20070503 40/20070503 UNSpecRapp Counter Terror Submission.pdf, 13 May 2008. Lynch, Andrew, 2009. ‘Learning from Haneef.’ Inside Story: Current Affairs and Culture. Accessed online at www.inside.org.au/learning-from-haneef/, 9 February. Lynch, Andrew and George Williams, 2006. What Price Security? Taking Stock of Australia’s Anti-Terror Laws. Sydney: UNSW Press. Lynch, Andrew, Nicola McGarrity and George Williams, 2008. Submission to the Clarke Inquiry. Accessed online at www.gtcentre.unsw.edu.au/news/docs/ Clark Inquiry Haneef.pdf, 8 June 2008. MacDonald, Edwina and George Williams, 2007. ‘Combating Terrorism: Australia’s Criminal Code Since September 11, 2001.’ Griffith Law Review, 16: 27–54. Mark, David, 2005. ‘Ruddock Denies Anti-terrorism Law Breaches Human Rights’. The World Today, 4 November. McDonald, Matt, 2005. ‘Be Alarmed? Australia’s anti-terrorism kit and the politics of security.’ Global Change, Peace and Security, 17(2): 117–89. McSherry, Bernadette, 2004. ‘Terrorism Offences in the Criminal Code: Broadening the Boundaries of Australian Criminal Laws.’ University of New South Wales Law Journal, 27: 354–72. Michaelsen, Christopher, 2003. ‘International Human Rights on trial – The United Kingdom’s and Australia’s Legal Response to 9/11.’ Sydney Law Review, 25: 275– 305. —— 2005. ‘Hardline Security is not a Human Right’, Civil Liberty: Journal of the New South Wales Council for Civil Liberties Inc. 23–4 September. Accessed online at www.nswccl.org.au/docs/pdf/(2005)%20202%20Civil%20Liberty.pdf, 7 May 2008. —— 2005a. ‘Anti-terrorism Legislation in Australia: A Proportionate Response to the Terrorist Threat?’ Studies in Conflict and Terrorism, 28: 321–39. Ministerial Council on Drug Strategy, 2006. National Alcohol Strategy 2006–2009, Canberra: Commonwealth of Australia. Accessed online at www.alcohol.gov.au/ internet/alcohol/publishing.nsf/Content/B83AD1F91AA632ADCA25718E0081F1 C3/$File/nas-06–09.pdf, July 15 2008. Mitchell, Selina, 2003. ‘Journalists Face Jail Under New ASIO Law.’ Australian, 11 December. New South Wales Chief Health Officer, 2006. Report of the New South Wales Chief Health Officer: Injury and poisoning. Alcohol related Injuries. Accessed online at www.health.nsw.gov.au/public-health/chorep/inj/inj alaf dthhos.htm, 5 May 2008. Paris, Roland, 2001. ‘Human Security: Paradigm Shift or Hot Air?’ International Security, 26(2): 87–102. Rix, Mark, 2007. Australia and the ‘War Against Terrorism’: Terrorism, National Security and Human Rights. Wollongong: University of Wollongong. Accessed online at http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1009&context=gsbpapers, 13 May 2008. Robertson, Geoffrey, 2006. ‘In thrall to the Bush lawyers’. Age, 17 August. Rosenberg, Carol, 2008. ‘Seven worst of the worst: Guantanamo captives back home.’ Miami Herald.

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Ruddock, Philip, 2003. ‘Opening Address to 12th Annual Conference of the Australian Institute of Professional Intelligence Officers.’ Canberra, 22 October. —— 2004. ‘ASIO Legislation Supports Ammonium Nitrate Regulation.’ News release, 17 November. Accessed online at http://209.85.173.104/search?q=cache: 77UyIQ1K 5gJ:www.dme.qld.gov.au/zone files/explosives pdf/asio legislation.pdf +www.law.gov.au/ag+AND+ruddock&hl=en&ct=clnk&cd=7&gl=au&client= firefox-a, 16 May 2008. —— 2005a. ‘No Better Friend.’ Speech delivered to the American–Australian Association. New York, 26 July. Accessed online at http://209.85.173.104/ search?q=cache:swp3Bd1KMqUJ:www.nswccl.org.au/docs/pdf/Ruddock%2520 speech20050726.pdf, 16 May 2008. —— 2005b. ‘Australia’s Legislative Response to the Ongoing Threat of Terrorism’. University of New South Wales Law Journal, 27(2): 254–61. Senate Legal and Constitutional Legislation Committee, 2002a. Provisions of the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. Accessed online at www.aph.gov.au/Senate/committee/legcon ctte/ completed inquiries/2002–04/asio/report/report.pdf, 13 May 2008. —— 2002b. [Inquiry into the] Security Legislation Amendment (Terrorism) Bill 2002 [No. 2] [and Related Bills]. Accessed online at www.aph.gov.au/Senate/committee/ legcon ctte/completed inquiries/2002–04/terrorism/report/report.pdf, 13 May 2008. Sherlock, Stephen, 2002. ‘The Bali Bombings: Looking for explanations.’ EBrief. Issued 14 October. Analysis and Policy Foreign Affairs, Defence and Trade Group. Canberra: Parliamentary Library. Accessed online at www.aph.gov.au/library/intguide/FAD/bali.htm, 26 May 2008. Smith, Adam, 1979 [1776]. An Inquiry Into the Nature and Causes of the Wealth of Nations. R. H. Campbell and A. S. Skinner eds. Reprint. Oxford: Clarendon Press. Tham, Joo-Cheong, 2004a. ‘Casualties of the Domestic “War on Terror”: A review of recent counter-terrorism laws.’ Melbourne University Law Review, 28(2): 512–31. —— 2004b. ‘Possible Constitutional Objections to the Powers to Ban “Terrorist” Organisations.’ University of New South Wales Law Journal, 27: 482–523. Tham, Joo-Cheong and K. D. Ewing, 2007. ‘Limitations of a Charter of Rights in the Age of Counter-Terrorism.’ Melbourne University Law Review, 31: 465–502. Tigar, Michael E., 2007. ‘A New Form of State: War and Criminal Law: A system of wholesale denial of rights.’ Monthly Review, 59(4): 1–11. Townsend, Charles, 2002. Terrorism: A Very Short Introduction. Oxford: Oxford University Press. Uhr, John, 2004. ‘Terra Infirma? Parliament’s Uncertain Role in the “War on Terror”.’ University of New South Wales Law Journal, 27: 339–53. United Nations (UN), 2007. Australia: Study on Human Rights Compliance While Countering Terrorism (Special Rapporteur’s Report). Submitted to the UN Human Rights Council for consideration at the Council’s fourth session in March. United Nations Development Program, 1994. Human Development Report. New York: Oxford University Press. Walters, Brian and Neil McAteer, 2007. ‘A Note on International Human Rights Law for Counsel for David Hicks.’ Accessed online at www.hrlrc.

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org.au/files/LXBD5QJXZ9/Note%20on%20International%20Human%20Rights% 20for%20McLeod%20and%20Detmold.pdf, 8 July 2008. Walton, Michael, 2005. ‘Two Attorneys-General, Counter-terrorism and Liberty.’ Sydney: New South Wales Council for Civil Liberties. Accessed online at www.nswccl.org.au/stories/story2005–05.php, 15 May 2008. Watt, Nicholas, 2008. ‘Impractical and Wrong in Principle: Former MI5 chief’s verdict on Brown’s 42-day plan.’ Guardian, 9 July. White, Peter, 2007. ‘Assistant Secretary, Character Assessment and War Crimes Screening.’ ed. Immigration Minister Kevin Andrews. Re: Dr Haneef, Mohammed edn. Sydney: Department of Immigration and Citizenship. Williams, George, 2003. ‘National Security, Terrorism and Bills of Rights.’ Australian Journal of Human Rights, 9: 2–7. —— 2004. The Case for an Australian Bill of Rights: Freedom in the war on terror. Sydney: UNSW Press. —— 2006. ‘At Last, Sedition May be Consigned to History.’ Australian Policy Online. Accessed online at www.apo.org.au/webboard/results.chtml?filename num =80505, 19 June 2008. —— 2007. ‘Dodgy Outcome Demands Review.’ Australian, 1 August. Williams, George and Edwina MacDonald, 2007. ‘No excuse for not bringing Hicks home.’ Age, 5 March. Wood, Leonie, 2007. ‘Haneef, Hicks and justice pay price: Law Council.’ Age, 25 July.

NOTES

Chapter One: Human Rights 1 Technically speaking, theism denotes a belief in one or more gods or divinities but the kind of classical theism reflected in natural rights-driven documents usually assume the existence of one true God. 2 Not all rights are inalienable; the right to freedom of movement, for example, can be justifiably alienated subsequent to conviction for a serious offence such as murder. Nevertheless, it must be hard to alienate alienable rights and the conditions for rendering them so must be subject to close parliamentary and judicial scrutiny. On the other hand, we hold that some rights are inalienable, such the rights to be free from torture and loss of life. 3 Some democrats have attempted to address this issue by calling for a ‘thicker’ conception of democracy that attends more closely to the rights of minorities, whereas other democrats have argued that over-attention to rights distort the democratic process by only protecting minority rights. 4 Chapter 4 demonstrates that this provision is more or less a dead letter now. 5 It is commonly suggested that Australian utilitarianism was more Benthamite in character; see Collins 1985.

Chapter Two: Protecting Human Rights 1 Literally translated as ‘friend of the court’, it refers to someone who is not a party to a case, but who provides information on a point of law to assist the court in deciding a matter before it.

Chapter Three: A Bill of Rights? 1 Gough Whitlam has suggested that the bill was abandoned because of a deal between Prime Minister Hawke and Western Australian Labor Premier Brian Burke because ‘the one vote, one value provision could have affected electoral boundaries in that state, with potential electoral implications for the Burke government (Williams, 2004, 60).

Chapter Four: Electoral Rights in Australia 1 At the federal level women were enfranchised in 1902. South Australia pioneered manhood suffrage in 1856 and was the first Australian colony to enfranchise women, which it did in 1894. New Zealand enfranchised women in 1893.

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Notes (Pages 86–92)

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2 Partly because women were enfranchised at the inception of Australia’s federal history, but mainly because of the effect of compulsory voting, there has never been a gender voting gap in terms of women’s lower mass participation in Australia. Accordingly, despite being denied voting rights in most prefederation state jurisdictions, women are not specifically considered in this chapter. For a discussion of women’s rights in other areas, see chapter 6. For further reading, see Oldfield 1992 and Lees 1995. 3 The Declaration is not a legally binding covenant and there are no signatories to it; it was ratified by proclamation in the General Assembly on 10 December 1948. Australia was among the many ratifying nations. 4 It is also set out in the International Covenant on the Elimination of Racial Discrimination (article 5(c)). Both treaties bind the Australian government. 5 ‘Senator Macklin of the Australian Democrats also introduced a Constitution Alteration (Democratic Elections) Bill into the Senate in 1985 and 1987. It did not proceed through the parliament, although it was the subject of consideration by the Joint Select Committee on Electoral Reform’ (Twomey 2000, 151–2). 6 ‘The official “NO” case . . . did not refer to the right to vote’ but ‘concentrated on the “one-vote one-value proposals”, and argued that they removed the rights of the States to order their own elections and would result in costly litigation. Accordingly, it is unlikely that those who voted against this referendum proposal disapproved of a constitutional right to vote, although the minds of the voters can never be known on such matters’ (Twomey 2000, 152–3). 7 ‘It was noted that Maori were represented in the New Zealand Parliament and were unlikely to come to Australia in large numbers. Discrimination against Maori was also thought likely to prejudice chances of federation with New Zealand’ (Norberry 2003, 89, 57). 8 This disqualification lasted only for the period of the First World War and for six months after. 9 Such citizens did not become enfranchised in Victoria and New South Wales until the 1920s (Sawer 2001, 4). 10 Section 127 of the Constitution had previously specified that ‘In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted’. 11 In New South Wales, ‘people in receipt of State aid or aid from a charitable institution were (until 1926) not entitled to enrol and this barrier was held to disentitle all Aborigines living on reserves or stations’. In South Australia, ‘the requirement that an enrolled elector be domiciled in a particular subdivision for at least one month operated in 1901 as an effective block to Aboriginal enrolment’ (Brooks 1993, 213). 12 For a detailed discussion of this interpretation see Brooks 1993, 231–47. 13 The report dismissed suggestions that criteria such as literacy, employment, financial status or receipt of public assistance should determine whether Aboriginal Australians could vote because ‘these criteria were not applied to the electorate at large’ (Norberry 2003, 86 n. 38); see House of Representatives, Report from the Select Committee on Voting Rights of Aborigines (1961), 8–9. 14 To be precise, 2.4 per cent.

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Notes (Pages 92–106)

15 For a discussion of the idea of reserved parliamentary seats for women, see chapter 6. 16 ‘The most successful and widespread of these, the Australian Indigenous Peoples’ Party, stood 25 House of Representatives candidates in 1996, but is not registered today’ (Orr 2003, 38). 17 As for the right to stand for election, ‘Under the Constitution, leaving aside treason, only conviction of an offence punishable by more than one year acts as a disqualification from federal candidature (and then only temporarily). But it is unlikely that a presently convicted person would be preselected or elected’. The more interesting issue is past conviction. Western Australia recently attempted to disqualify candidates simply because of any past conviction of an offence punishable by more than 5 years. As Orr notes, this is indefensible: ‘Generally, once rehabilitated there is no reason to bar a convicted person from public life’ (Orr 2003, 10). 18 For example, ‘Many ex-prisoners are homeless and cannot establish a stable address for the minimum one month required . . . It has also been suggested that ex-prisoners (and other homeless people) are reluctant to enrol because the electoral roll can be used to locate them or their families’. Further, ‘[e]videntiary requirements or dependence upon witnesses who may be in positions of power’ in order to re-enrol are other likely obstacles (Fitzgerald 2005, 6–7). 19 There have been rare times when even the ALP has shown reluctance to push for prisoner voting rights (Norberry 2003, 93; Hughes and Costar 2006, 82). 20 Which describes itself as ‘an international volunteer-run, non-profit advocacy and support organisation for the Australian Diaspora’. 21 The Australian Bureau of Statistics, meanwhile, estimates that ‘on any given night in Australia there are 105 000 homeless people’ (JSCEM 2005, 14). 22 Only 12 per cent of homeless people are aware that, as itinerant electors, their address would not be shown on the electoral roll, while only 21 per cent of homeless people are aware that they may apply for silent enrolment status. This is significant because 29 per cent of homeless people report an immediate past history of domestic or family violence and 14 per cent of homeless people indicate that a primary reason for their non-enrolment relates to concerns that, following enrolment, their name and address would appear on the electoral roll (Lynch and Tsorbaris 2005, 6). 23 Victoria in 1926, New South Wales and Tasmania in 1928, Western Australia in 1936 and South Australia in 1942 (McAllister et al. 1997, 71). 24 That is, at 8.00 pm on the day the election writs are issued, which is usually the day after the prime minister announces an election. There is a grace period of three working days after the writ is issued for people already enrolled to update their details, for 17 year olds who will turn 18 before election day and for ‘people who expect to become Australian citizens by election day’. Everyone else must enrol on the day of the writ, including first time enrolees and re-enrolees (AEC 2006). 25 ‘A provisional vote is a vote cast when, for example, an elector’s name cannot be found on the roll or has already been marked off the roll as having voted. The vote cannot be counted until a careful check of enrolment records and entitlements has been made’ (AEC 2006). 26 This allowed 77 000 new enrolments to be processed.

Notes (Pages 107–229)

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27 All states and territories except Queensland and the Australian Capital Territory have provisions for non-resident ratepayers to vote. 28 Malapportionment refers to the process whereby some electorates are deliberately drawn so that they will have smaller enrolments than others. The term is also sometimes used to describe how electorate numbers become uneven over time as a result of different growth rates. A gerrymander, strictly speaking, is the deliberate drawing of individual electorate boundaries to favour a particular party or candidate. 29 New South Wales has 4 148 000 voters and Tasmania has 325 000, yet both states elect 12 representatives to the Senate. 30 See McGinty v Western Australia (1996) 186 CLR 140. The other case was decided before implied rights had ever been found in the Constitution; see Attorney-General (Cth) ex rel McKinlay v Commonwealth (1975) 135 CLR 1.

Chapter Six: Gender and Sexuality Rights 1 According to a government spokesperson, its refusal to support the optional protocol was also ‘an expression of our unhappiness with the way the complaints mechanisms under the UN Treaty system were operating’ (Grattan 2000). This opposition also reflected the government’s unhappiness with the criticisms of the Committee on the Elimination of Racial Discrimination about Australia’s race relations (Parliamentary Debates, House of Representatives 29 November 2000, 23086). 2 This does not reflect the true rate of Indigenous unemployment as it does not include people involved in the Community Development Employment Projects (CDEP), which skills Aboriginal people for employment. In 2004–5 about 19 per cent of the total Aboriginal labour force was involved in CDEP projects (PC 2007, 43). 3 Nationally, as at February 2008, women hold 29.8 per cent of all Lower House seats and 33.6 per cent of Upper House seats. 4 Gender quotas are not without criticism, including claims that they essentialise women’s interests (see Mansbridge 2005). 5 Of course, this has never actually occurred in practice with government intervening in areas related to marriage and divorce, child rearing and death. 6 Although some transgressions, such as the commission of a serious crime such as murder, can result in the justifiable alienation of such rights as the right to free movement; see chapter 1 for further details.

Chapter Eight: Civil and Political Rights in an Age of Terror 1 The first raft of legislation enacted in 2003 was brought in under the then attorneygeneral, Daryl Williams. 2 As argued even by state sceptics such as Adam Smith (1979 [1776] V.i.a.42, 707). 3 Ruddock may have been confusing Article 3 of the UDHR with Article 4 of the International Covenant on Civil and Political Rights, which allows temporary relaxations of obligations in times of emergency. At the same time, paragraph 2 of Article 4 clearly stipulates that even in times of emergency Articles 6, 7, 8, 11, 15, 16 and 18, which provide for equal treatment before the law and protection from such practices as torture, ‘cruel, inhuman and degrading treatment’ and forced labour, may not be breached.

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Notes (Pages 229–41)

4 Human security theory was first outlined in the 1994 Human Development Report, which is published annually by the United Nations Development Program (UNDP). According to the report, ‘Human security can be said to have two main aspects. It means, first, safety from such chronic threats as hunger, disease and repression. And second, it means protection from sudden and hurtful disruptions in the patterns of daily life – whether in homes, in jobs or in communities.’ There are seven elements comprising human security: economic security; food security; health security; environmental security; personal security; community security and political security (United Nations Development Program 1994). But as Roland Paris points out (2001, 88–9) the concept ‘lacks precision’ and it is hard to see how ‘the concept of human security can serve as a practical guide to academic research or governmental policy-making’. 5 These offences differed from those he was accused of at the time of arrest and those he was charged with before an aborted military commission trial in 2003 (Lasry 2007). 6 Under the Crimes Act, a terror suspect can only be held for questioning for a total of 24 hours. However, during this time, a magistrate can grant permission for questioning to be suspended or delayed for the purposes of providing breaks for the detainee or for gathering evidence. This is known as ‘dead time’ (Lynch et al. 2008). 7 For a fuller treatment of these new laws, their effects and implications, see Tham 2004; Michaelsen 2005a; Eminent Jurists Panel 2006; Hocking 2004 and 2004a; Williams 2003 and 2004. 8 This figure derived from Ministerial Council on Drug Strategy data. According to the Council, the annual cost to the community of alcohol-related social problems is around $7.6 billion. On their figures, the estimated number of deaths from alcohol-related causes between 1992 to 2001 was 16 656. In the same period, 391 283 hospitalisations were also the direct result of alcohol abuse (Ministerial Council on Drug Strategy 2006, 4, 12, 14). A report of the New South Wales chief medical officer would put the number of deaths at a higher figure. According to this report, in 2001 there were 2685 deaths Australia-wide caused by alcohol, putting the figure over five years at around 16 000. ‘These deaths include those associated with long-term use of alcohol, such as liver disease, cancer and stroke, but the majority were the result of acute effects of alcohol consumption, such as injuries due to road crashes, violence and suicide’ (New South Wales Chief Health Officer 2006). 9 Joseph (Jack) Thomas’ conviction was overturned on appeal, although he was later retried on the basis of information he disclosed in an ABC interview. In October 2008 Thomas was convicted only of falsifying his passport. In February 2009 seven men received non-parole sentences of between four-and-a-half and twelve years imprisonment after being convicted in the Victorian Supreme Court of terrorism offences. 10 For example, Jenny Hocking suggests that ‘National security and individual liberties, far from being in competition with one another in a simplistic zero-sum game, are in fact mutually reinforcing’ (Hocking 2004, 336). Philip Ruddock has similarly suggested that the ‘perceived dichotomy’ between national security and civil rights is misplaced (in Ackland, 2004).

Notes (Pages 242–5)

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11 As Conor Gearty notes in relation to the events of 11 September, ‘[W]ere the attacks that then took place not violations of fundamental human rights merely because a state had not done them?’ (Gearty 2007, 360). 12 ‘Tightening up the security of labs, checking on the bona fides of all who work with sensitive agents, seems appropriate, provided that security remains in the hands of the free institutions – laboratories and university departments – that direct the research itself’ (Ignatieff 2004, 161). 13 ‘Two obvious kinds of preemption come to mind: strikes against individuals or training camps in order to prevent them from executing imminent attacks; and military action against states that harbor terrorists or that produce weapons of mass destruction. Hitting terrorists before they can hit you, provided that less risky and costly means are unworkable, is less problematic than full-scale war against states’ (Ignatieff 2004, 162–3).

INDEX

A Just Australia 54, 206, 207 Aboriginal and Torres Strait Islander Commission (ATSIC) 129, 131 abolition of 141–3 health responsibilities of 141–2 responses to ATSIC’s demise 142–3 Aboriginal Councils and Associations Act 1976 128 Aboriginal Land Rights (Northern Territory) Act 1976 41, 125 Aboriginal people Aboriginal land rights 41–2, 125–8 Aboriginal voters and the federation franchise 90–3 dispossession of 34, 41, 92 electoral participation 92 enfranchising of during WWII 90–1 and Hindmarsh Island Bridge Act 40 protection offered by the Constitution, section 41 90 reforms to the federation franchise 91–2 reserved seats 92–3 UN treaty committee system and Aboriginal rights 49 voluntary enrolment proviso 91 voting rights 37 ACT Human Rights Act 2004 (HRA) 77 activism 32, 123 to advance international consensus on sexuality rights 181

258

international women’s rights activism 175 advocacy individual human rights advocates 54–6 Public Interest Advocacy Centre (PIAC) 56 advocacy NGOs 54 Age Discrimination Act 2004 (AD) 37 American Constitution 16–18 and bill of rights 19 and limitations placed on Australian legislators 20 amicus curiae 56 Amnesty International (AI) 54 anti-discrimination legislation and Commonwealth administrative machinery 38–9 Human Rights and Equal Opportunity Commission Act 1986 21, 38 legislation addressing discrimination 37 anti-rights era (Indigenous Australians) 129–48 abolition of ATSIC 141–3 challenge of ‘passive welfare’ 133 Howard government’s implementation of anti-rights agenda 134–8 and One Nation party 129–31 opposition to Declaration on the Rights of Indigenous Peoples 146–8 and refusal of governments to negotiate a treaty 140–1

Index

anti-terrorism laws 35–6, 41 Australian Federal Police (AFP) and application of laws 232–3 civil libertarian concerns regarding 233–4 counterterrorism legislation 55 criticisms of 227, 235–6 David Hicks case study 229–32 haste of anti-terrorism laws enactment 227 level of secrecy surrounding anti-terrorist regime 235–6, 238 the media and information 236 Mohammed Haneef case study 232–4 Peter Chalk’s proposed limits on counterterrorism 245–6 proportionality to the level of threat 234–6 queries regarding new laws 236 sunset clauses 238, 243–4 apology (to the Stolen Generations) 138–40 Howard government’s response to Stolen Generations report 138–40 Rudd government’s response to Stolen Generations report 140 arbitrary detention 223 artificial reproductive technology 41, 186 ASIO Act 2003 234–6 asylum seekers 197 and A Just Australia 54 and ALP 202 Cambodian 198 children overboard claim 203–5 detention of 35, 38, 49, 50, 206–10 the federal election and stance against 201, 203, 216 Pacific solution 201, 205–7, 215–16 policy controversies surrounding 205–12 SIEV X 205 and terrorism 202 see also temporary protection visas Australian Democrats (AD) 173

259

Australian Greens 206 Australian Labor Party (ALP) and asylum seekers 202 and women’s political representation 172–3 Australian Security Intelligence Organisation Act 1979 223–4 Beijing Declaration 162 Beijing Platform for Action (BPFA) 162, 165, 170, 176 bill of rights absence of in the Constitution 16, 19, 21, 28 advantages of common law rights protection over a bill of rights 33 alternatives to a national bill of rights 76–80 anti-bill and anti-current rights protection views 69 anti-bill and pro-current rights protection views 68–9 Australian survey results 21 based on rights contained in ICCPR 73 basis of decision making 67–8 the Bowen bill 73 common complaints against a constitutional bill of rights 69–70 debate in Australia 67–76 defining 63–6 democracies and constitutionally entrenched bills of rights 66 legislative bill of rights 32 and litigation 70 the Murphy bill 73 opposition to an Australian bill of rights 67–70 and political leadership 80 promotion of a federal legislative bill of rights 73–4 the push for a legislative model of rights protection 72 schools of thought regarding 68–9

260

Index

bill of rights (cont.) and second generation rights 64 standard for identifying authentic bills of rights 64–5 and state action 63 statutory (legislative) bills of rights 66, 73–6 subnational governments’ bills of rights 76–8 support for an Australian bill of rights 70–6 US Bill of Rights model 65–6 Border Protection Bill 2001 201 Brotherhood of St Laurence 54 Charter of Human Rights and Responsibilities Act 2006 21 charters of rights 66 child abuse 144–6 children overboard claim 203–5 and Suspected Illegal Entry Vessel (SIEV) 4 7, 203–4 citizenship 85 of Indigenous Australians 41, 120 suffrage rights as key indicator of 85 and voting entitlements of prisoners 96 civil rights 120–3, 221 Clark clause (Constitution) 17–18 Committee Against Torture 49 Committee on the Elimination of Racial Discrimination 49 common law advantages of common law rights protection over a bill of rights 33 common law–international human rights law relationship 126 common law protection of rights 33–6 limits 35–6 as mechanism for dealing with rights issues 21 parliamentary generation of 18 role of international law in shaping 51

Commonwealth acquiring property 28 and anti-discrimination legislation 38–9 Commonwealth legislation overriding state legislation 73 Commonwealth parliament committee system – rights watchdog 42–3 powers of 32 response to Aboriginal land rights 41–2 retaining of power over marriage 184 and rights protection 15–16 Commonwealth Criminal Code 222–3, 232 Commonwealth Electoral Act 1902 93, 99 plural voting (‘one adult, one vote’) 107–10 Commonwealth Electoral Act 1918 107 preferential voting system of 108 Commonwealth Franchise Act 1902 18–19, 89, 93 communication 30–1 compulsory voting 37, 86, 91, 101–3 consensus (political and legal) 109 consequentialist theory (of rights) 12–13 Constitution absence of bill of rights in 16, 19, 21, 28 amendments to 22 and American constitutionalism 16–17 and ‘ancestor worship’ 22 Constitutional protection of rights 15, 28–33 constitutionally entrenched bills of rights 66 due process clause (Clark clause) 17–18 early rights protections 15 efforts to entrench rights – historical perspective 71–2 express and implied voting protection 87–8 express rights provisions 28–9

Index

fairness clause 108 federal division of powers aspect 31, 76–7 High Court and Constitutional rights challenges 29 High Court interpretation of 88 implied rights in 30–1, 109 insertion of rights 21 and limits of state authority over the individual 15–16 and the 1988 referendum 72 and preventive detention 225 protection of human rights 32–3 protection offered by the Constitution, section 41 88, 90 reasons for rights omissions 18–19 removal of racial discrimination from 72 resistance to insertion of rights 22–3 state governments and racial discrimination 17–18 and threat to liberty 18 threats to state autonomy 17–18 voting entitlements omission 87–9 Constitution Alteration (Fair Elections) referendum 88, 90, 109 Constitutional Alteration (Democratic Elections) Bill 88 control orders 224 and David Hicks 231–2 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 46, 51 ratification of 46 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 51, 154–5, 159, 163 Australia’s reservations to the Convention 159, 162 features 160 flaws and limitations 160–1 international standards of personal safety 178–9 and paid maternity leave 169–70 quotas and targets in preselection processes 174

261

ratification of 161 and SDA 536 and states’ commitments to anti-discrimination measures 160 and violence against women 175–6 women’s economic rights under CEDAW 166 women’s political rights under CEDAW 170 Convention on the Prevention and Punishment of the Crime of Genocide 46 Convention on the Rights of Persons with Disabilities 51 Convention on the Rights of the Child (CROC) 46, 47, 210 Convention Relating to the Status of Refugees 196 Coranderrk protest 123 counterterrorism legislation 55, 227 courts see judiciary Crimes Act loophole of ‘dead time’ 234 criminalised homosexuality 50 customary (Indigenous) law 129 damages, entitlement to 70 Declaration on the Elimination of Violence against Women 176 Declaration on the Rights of Indigenous Peoples 131, 146–8 decriminalisation (of homosexuality) 183 democracy 6, 15, 85 Australians’ level of trust in 18–19 democracies and constitutionally entrenched bills of rights 66 democracies and the introduction of compulsory voting 102 imbalances in state and local government political representation of women 173–4 liberal democracy 108–9, 221, 239–40

262

Index

democracy (cont.) limitations placed on legislators by the US Constitution 20 nature of 67 parliamentary democracy and Constitutional rights protections 18, 30 and refugees 195 see also Parliament diaspora (Australian), and federal elections 97–8 Disability Discrimination Act 1992 (DDA) 37, 101 discrimination against same-sex couples 38 against sexual minority groups 180–1 Age Discrimination Act 2004 37 on the basis of disability 101 and criticisms of government’s amendments to native title legislation 136–7 due to gender-based stereotypes 154 and ethnic minorities 18 legislation addressing 37 National Inquiry into Discrimination against People in Same-Sex Relationships 155, 184 racial discrimination 17–18, 49, 72, 122 Racial Discrimination Act 1975 21, 37, 40–1, 122, 127, 145–6 Sex Discrimination Act 1984 21, 37, 40, 163–4, 186 see also Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) disenfranchisement 93–4, 104, 120, 121 dispossession 34, 41, 92 domestic violence 156, 179 dualist legal systems 45 due process clause (Clark clause) 17–18 economic disadvantage 166–70 affordable universal childcare 169 gender pay gap 168

gendered assumptions regarding women’s role as mothers and carers 166–7 and Indigenous women 168–9 paid maternity leave 45, 169–70 and unemployment 168 unpaid work 167 and WorkChoices legislation 169 education (regarding rights issues) 76 elections 18–19, 23, 92, 109, 110 the federal election and stance against asylum seekers 201, 203, 216 see also Commonwealth electoral acts, disenfranchisement, electoral rights, voting Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 103 electoral laws 37, 103, 121 electoral participation 92, 101–2, 105–6 electoral rights 85–100, 111 Australian government’s electoral rights obligation 99 Australia’s obsession with electoral fairness 85, 86 exclusions 89, 98–101 federal elections and the Australian diaspora 97–8 of people with disabilities 100–1 of permanent residents 98 of prisoners 93–7 securing electoral rights 110–11 electoral roll 103–6 proof of identity requirements 106 vulnerability to fraud 104 enfranchisement 90–1, 120, 121 Equal Employment Opportunity (EEO) Act 1987 163, 177–8 ethnic minority groups, and discrimination 18 executive, the 18, 45 family violence Federal Court (rulings on Tampa) 200 federal legislative bill of rights 73–4

Index

federal parliament enacting human rights treaties 45–7 legislative scope 47 and rights of minority groups 43–4 federalism, division of powers aspect 31, 76–7 federation franchise 89 Aboriginal voters and 90–3 Commonwealth Franchise Act 1902 89, 93 compulsory voting and franchise status 102 Constitutional protection of the franchise 110–11 electoral roll legislation narrowing the franchise 103 enfranchising of Aboriginal people during WWII 90–1 reforms to 91–2 voluntary enrolment proviso 91 feminist activism 32 femocrats 165–6 first-generation rights 13–14 formal rights 7, 14 fraud (enrolment) 104 freedoms negative freedoms 10 parliament as natural protector of 19 positive freedoms 10, 102, 103 religious freedom, and the 1988 referendum 72 see also liberty gay, lesbian, bisexual, transgender and intersex (GLBTI) Australians 180–7 absence of international guarantee of sexual rights 181–3 recognition of gays and lesbians to equal parenting rights 185–6 sexuality rights of 180–7 gender-based disadvantage 158 clarification of the term ‘gender’ 157 gender equality commitment of the Australian Democrats 173 institutionalised gender norms 176

263

gender-based stereotypes 154 and gay and lesbian people 158–9 Gender Empowerment Measure (GEM) 166 gender pay gap 168 Gender-related Development Index (GDI) 166 genocide 46, 125 governments amendments to the SDA 40 Australian government’s electoral rights obligation 99 Australians’ level of trust in 18–19 bill of rights decision-making shift from the legislature to the judiciary 67–8, 72 developing dialogue between arms of government 77 federal division of powers aspect of rights protection 31, 76–7 and human rights 13, 49–50 Labor government’s challenge of improving women’s economic rights 169–70 majoritarian system of government 71 parliament as a constraint on government 225–9 policies to address domestic violence 179 providing avenues for NGOs to express views 55 refusal of governments to negotiate an Aboriginal treaty 140–1 relationship between government and people 15–16 responsible government (parliamentary supremacy) 29–30 rights watchdog over government legislation 42–3 state and local government political representation of women 173–4 state governments and racial discrimination 17–18

264

Index

governments (cont.) subnational governments’ bills of rights 76–8 symbolic governmental actions and Indigenous rights 123–4 women’s agencies and government policy concerning women’s rights 165–6 group rights 14 High Court affirmation of plural voting to liberal democracy 108–9 change in composition of 31 and Constitutional rights challenges 29 criticisms of High Court’s use of international standards in rights reasoning 52 criticisms of the High Court following Wik decision 134–6 and implied rights in the Constitution 30–1, 109 incorporation of international human rights laws 31 interpretation of the Constitution 88 interpretation of international legislation 51–2 Mabo judgement 33–5, 41, 51, 126–7 and mandatory detention policy 212–14 and parliamentary supremacy 29–30 significance of High Court appointments to native title 135 Teoh case 47–8 and voting rights 29 Hindmarsh Island Bridge Act 1997 40 history wars 132 homosexual rights 50, 182–3 human needs and rights 12, 14–15 human rights Australian perspective 15–21 disputes regarding claims about 9–11 Charter of Human Rights and Responsibilities Act 2006 21

courts as channel for addressing rights issues 55 a gender-based approach to 156–9 and governments 13, 49–50 historical perspectives 8 human rights acts 66, 73, 74, 77 and Ignatieff ’s views on responses to terrorism 243–6 inalienable nature debate 10–11, 14 individual human rights advocates 54–6 institutional mechanisms for advancing 78–9 international human rights norms and laws 31, 34, 44–53 internationalising women’s human rights 159–62 legislative protection of 36–44 measures to limit 40 and the notion of the public–private distinction 156 overturning of prisoner voting ban 94–5 and pastoral leases 136 prelegislative human rights impact analysis 43 and private nature of women’s vulnerability 157 proposed Australian Rights Council 78–9 protection from violence by human rights fortification 242 protection of 23, 27–33, 56 role of NGOs in shaping human rights agendas 53–6 and sexuality rights 181–2 traditional view of 53 transmitters of human rights tradition 8 and utilitarianism 12–13, 23–4 Victorian Charter of Human Rights and Responsibilities Act 2006 77–8 and voting entitlements of prisoners 97 Wik case 41, 128, 131, 134–6, 138

Index

women and human rights abuses 157 Yorta Yorta decision and native title 137–8 see also Universal Declaration of Human Rights, international human rights laws, rights Human Rights Act 2004 (HRA) 77 Human Rights and Equal Opportunity Commission (HREOC) 38–9 limited authority of 39 National Inquiry into Discrimination against People in Same-Sex Relationships 155, 184 response of Howard government to Stolen Generations report 138–40 and the suspension of the RDA 40–1 Human Rights and Equal Opportunity Commission Act 1986 21, 38 Human Rights Committee (HRC) 49 and criminalised homosexuality 50 naming and shaming tool 50 rulings of Australia’s human rights violations 50 Human Rights (Sexual Conduct) Act 1994 37, 50, 183 immigration 197 to Australia from Asia 197–8 Pauline Hanson’s criticism of Asian immigration 198 implied rights 30–1, 109 Indigenous peoples and citizenship 41, 120 and civil rights 120–3 customary (Indigenous) law 129 denial of rights 119–20 and dispossession 34, 41, 92 economic and social disadvantage and Indigenous women 168–9 educational achievement of 118 health status of 117 Indigenous women and violence 177–8 life expectancies 117 Mabo judgement 33–5, 41, 51, 126–7

265

measures addressing Indigenous affairs in the Northern Territory 40–1 political representation 92–3 and Reconciliation Australia 54 the Stolen Generations 38, 138–40 and violations 50 voting rights 37 Indigenous rights 117–29, 148 and activism 123 anti-rights era 129–48 Declaration on the Rights of Indigenous Peoples 131, 146–8 inquiries into Indigenous disadvantage 124–5 Noel Pearson’s views 132–4 opposition to 131 shared responsibility welfare paradigm 143–4 and symbolic governmental actions 123–4 International Committee of the Red Cross (ICRC) 54, 230 International Convention on the Elimination of All Forms of Racial Discrimination (1966) 122 International Covenant on Civil and Political Rights (ICCPR) 8, 9, 46, 161 as basis for ACT Human Rights Act 2004 77 as basis for Victorian Charter of Human Rights and Responsibilities Act 2006 77–8 bills of rights based on 73 breaches by counterterrorism legislation 227 and Human Rights Committee 49 and justification for rights 13 lack of definition of ‘public emergency’ 245 ratification of 46 and sexual privacy 183 and voting entitlements of prisoners 97 voting rights 86

266

Index

International Covenant on Economic, Social and Cultural Rights (ICESCR) 8, 9, 46, 161 and justification for rights 13 lack of prohibition for discrimination against sexual minorities 181 ratification of 46 International Criminal Court (Consequential Amendments) Act 2002 38 international customary law 44–5 international human rights laws 31, 34, 44–5, 53 breaches 208–9, 212–3 common law–international human rights law relationship 126 and voting entitlements of prisoners 96 international jurisprudence 127 international treaties 45, 128 and dualist legal systems 45 enacting by federal parliament 45–7 gap between ratification and enforcement of 52–3 ratifying a treaty 45–7, 52–3, 161 role of international law in shaping common law 51 status in Australian law 48 itinerant electors 99–100 Jesuit social justice organisation 54 Joint Standing Committee on Treaties (JSCOT) 42, 45 judiciary bill of rights decision making shift from the legislature to the judiciary 67–8, 72 combined input of legislature and judiciary in rights disputes 75 interpretation of statute law 35–6 judicial hegemony in rights interpretation 66 judicial interpretation of human rights treaties 44 the judicial realm and refugees 212–5

policy judgements and legislators versus judges 34, 36 role in rights adjudication 74–5 see also High Court jurisprudence 30–1, 127, 137 land rights 41–2, 125–8 see also native title law of sedition 223 legislation to amend the Native Title Act 1993 135–6 banning terrorist organisations 226 bill of rights decision-making shift from the legislature to the judiciary 67–8, 72 combined input of legislature and judiciary in rights disputes 75 Commonwealth legislation overriding state legislation 73 Commonwealth parliament committee system – rights watchdog over government legislation 42–3 counterterrorism legislation 55 criticisms of government’s amendments to native title legislation 136–7 electoral laws 37, 103, 121 faith in rule of law 19 High Court interpretation of international legislation 51–2 legislation not enacted by parliament 46 legislative bill of rights 32 legislative model of rights protection 72 legislative protection of human rights 36–44 legislative provision for indefinite detention 225–6 legislative role of states 32 legislative scope of federal parliament 47 limit on freedom of communication 30

Index

and marriage rights 184–5 the Northern Territory intervention 144–6 onus on parliament to enact legislation addressing rights issues 34 parliamentary scrutiny of 78 prelegislative human rights impact analysis 43 policy judgements and legislators versus judges 34, 36 recognition of same-sex partnerships 184–6 relating to the electoral roll 103 rights instruments established by 21 statutory (legislative) bills of rights 66, 73–6 WorkChoices legislation 169 see also anti-discrimination legislation, anti-terrorism laws liberal democracy 108–9, 221, 239–40 Liberal Party and women’s representation 172–3 liberal-democratic rights 221 and responses to terrorism 240–1 and security 221–2 liberalism and refugees 195 liberty the Constitution and threat to liberty 18 line between positive and negative liberty 10 negative liberty 7, 10, 102, 103 positive liberty 7 See also freedoms litigation and bills of rights 70 Mabo judgement 33–5, 41, 126–7 criticisms of 34 and role of international law in shaping common law 51 support for 34 malapportionment 107–8 mandatory detention 35, 38, 49, 50, 206–10

267

of asylum seeker children 209–10 breaching of international law 208–9 criticisms of 208–10 detention centres 206 detention versus imprisonment 213–14 High Court rulings 212–14 reforms 216 statistics 207–9 maternity leave (paid) 45, 169–70 maternity leave scheme 38 Migration Amendment (Excision from Migration Zone) Act 2001 201–2 Military Commissions Act 2006 230 Mill, John Stuart and consequentialist theory of rights 12–13 views of representative democracy 6–7 minority groups Australian federal parliament and rights of minority groups 43–4 discrimination against sexual minority groups 180–1 and ethnic minorities 18 and majoritarian system of government 71 and the meaning of self-determination 128 protection offered by the Constitution, section 41 88 security and liberal-democratic rights 221–2 vulnerability of 62 mobile polling booths 86 National Counter-Terror Alert Level 237, 238 National Inquiry into Discrimination against People in Same-Sex Relationships 155, 184 National Personal Safety Report 176–7 native title 33–5, 41, 51, 125–8 and evolving jurisprudence 137 and pastoral leases 136

268

Index

native title (cont.) response to Wik and the winding back of native title 134–8 significance of High Court appointments to native title 135 statutory recognition of land rights versus pre-existing native title recognition 126 and Yorta Yorta decision 137–8 see also land rights Native Title Act 1993 127–8 legislation to amend 135–6 Native Title Amendment Act 1998 136 natural rights 9 natural rights tradition 11–12 theories 11–12 negative freedoms 10 negative liberty 7, 10, 102, 103 negative liberty rights 13–14 New Matilda (online magazine) 73 non-government organisations (NGOs) 49 advocacy NGOs 54 arenas of public agenda influence 55–6 avenues for NGOs to express views 55 and individual human rights advocates 54 role in shaping human rights agendas 53–6 service-based NGOs 54 and women’s rights 161 Northern Territory intervention 144–6 obsolete rights 65 Oxfam 206, 207 Pacific solution (asylum seekers) 201, 205–7 criticisms of 206–7 dismantling of 216 legislative basis for 201 proposed changes to 215–16 paid maternity leave 45, 169–70 parliament

Australian federal parliament and rights of minority groups 43–4 Australia’s record of women’s representation in parliaments 171–3 Commonwealth parliament committee system – rights watchdog 42–3 enhancement of parliamentary role in rights framework establishment 74 federal parliament 43–7 and the generation of common law 18 influence of parliamentarianism 22 and legislation addressing discrimination 37 legislation not enacted 46 legislative provision for indefinite detention 225–6 measures addressing Indigenous affairs in the Northern Territory 40–1 onus on parliament to enact legislation addressing rights issues 34 parliament as a constraint on government 225–9 parliamentary democracy 18, 30 parliamentary scrutiny of legislation 78 parliamentary supremacy 29–30 as protector of freedoms 19 reasons for reluctance to act regarding Aboriginal land rights 41–2 refugees and the parliamentary realm 215–17 rights protection and parliamentary action or inaction 41 sovereignty of 87 suspension of RDA provisions and HREOC 40–1 and voting entitlements of prisoners 97 passive welfare 133, 144 pastoral leases 136

Index

people smugglers 211 persecution 196, 209 personal safety (right to) 175–9 international standards 178–9 regulation of the private realm (family) 176 see also violence plural voting (one adult, one vote) 107–10 policy mandatory detention policy 207–10 policy controversies surrounding asylum seekers 205–12 policy judgements and legislators versus judges 34, 36 pre-2001 refugee policies in Australia 196–8 temporary protection visa (TPV) policy 206, 210–12, 216 White Australia policy 196–7 political communication 30–1 political representation 92–3, 107, 170–3, 175 of ALP and Liberal parties 172–3 arguments for equal representation 170–1 of minor political parties 173 state and local government representation 173–4 2020 Ideas Summit appointments 174–5 women’s representation in the House of Representatives and the Senate 171–3 political rights 170, 221 positive freedoms 10, 102, 103 positive liberty 7, 10 preferential voting 86, 108 preventive detention 225 prisoners’ electoral rights 93–7 privacy 50, 183 privacy legislation 37 Public Interest Advocacy Centre (PIAC) 56 Public Interest Law Clearing House (PILCH) 99

269

racial discrimination 17–18, 49, 72 Racial Discrimination Act 1975 (RDA) 21, 37, 122, 127 and Northern Territory intervention laws 144–6 suspension of RDA provisions and HREOC 40–1 ratification 45–7 gap between ratification and enforcement of international treaties 52–3 ratification of CEDAW 161 reconciliation 131–2 support for 139–40 Reconciliation Australia 54 Redfern speech 124 referendums 72, 88, 90, 109, 121–2 Refugee Action Collective 206 Refugee Council of Australia 54 refugees 2001: refugees on centre stage 199 African refugees and assimilation 216 arrival by boat 197–203 Convention Relating to the Status of Refugees 196 and democracy 195 and excised offshore places 201–2, 206, 215 the judicial realm 212–15 liberalism and refugees 195 the parliamentary realm 215–17 pre-2001 refugee policies in Australia 196–8 the refugee policy compromise 195–6 Rudd Labor government and Australia’s approach to refugees 216–17 Tampa standoff 199–201, 203 temporary protection visa (TPV) policy 206, 210–12, 216 White Australia policy 196–7 Regional Partnership Agreements (RPAs) 143–4 Regulations and Ordinances Committee (ROC) 42

270

Index

religious freedom and the 1988 referendum 72 representative democracy 6–7 reproductive technologies 41, 186 right to life 77 right to self-determination 77, 128–9 and ATSIC 129, 141 rights attachment to humans assumption 10–11 Australian rights conservatism 22 charters of rights 66 civil rights 120–3, 221 common law protection of 33–6 consequentialist theory of 12–13 Constitutional protection of 15, 28–33 cultural reasons for Australian resistance to 20–1 definitions 9 denial of Aboriginal Australians’ rights 119–20 development of 13 diminution of 39 education regarding 76 efforts to entrench rights in the Australian Constitution – historical perspective 71–2 enhancement of parliamentary role in rights framework establishment 74 entitlement to 9, 14 express rights provisions 28–9 formal rights 7, 14 homosexual rights 67–8, 182–3 implied rights 30–1, 109 of Indigenous Australians 117–29, 148 insertion of rights into the Constitution 21 judicial hegemony in rights interpretation 66 justification for 11–13 land rights 41–2, 125–8 legislative model of rights protection 72

natural rights 9, 11–12 obsolete rights 65 origins 12 protection of 14–16, 20, 28–9, 31–3, 72 reasons for Constitutional rights omissions 18–19 rights challenges 23 rights instruments established by legislation 21 sexuality rights 180–5, 187 social rights 118 status theories of 11–12 statutory rights 9 substantive rights 7, 14 suffrage rights 85, 87–9, 171 theistic view of 11 threats to 19 types of 13–14 universalist nature of 8–9 violations of 13, 50 voting rights 18–19, 28, 29, 37, 86, 171 see also electoral rights, human rights, women’s rights Royal Commission into Aboriginal Deaths in Custody 124–5 rule of law 19, 206–7 same-sex couples and discrimination 38, 184 Scrutiny of Bills Committee (SBC) 42 role 42 second-generation rights 14, 64 secret ballot 86, 101 self-determination right 77, 128–9 and ATSIC 129, 141 Senate, the Howard government and anti-terrorism laws 226 and women’s representation 171–3 service-based NGOs 54 Sex Discrimination Act 1984 (SDA) 21, 37 amendments to 40, 164

Index

artificial reproductive technology and amendments to 607 and codification of parts of CEDAW 533 limitations of 163–4 social impact of 163 sexuality rights 180–7 activism to advance international consensus on 181 discrimination against sexual minority groups 180–1 equalisation of the age of consent 183 marriage rights 184–5 National Inquiry into Discrimination Against People in Same-Sex Relationships 155, 184 right to sexual privacy 183 Shared Responsibility Agreements (SRAs) 143–4 shared responsibility welfare paradigm (Indigenous rights) 143–6 SIEV 4 203–4 SIEV X 205 social rights 118 social welfare policy 134 socioeconomic status (SES) voting gap 37 sovereignty 50–1, 87, 111 state authority 15–16 state autonomy 17–18 states CEDAW and states’ commitment to anti-discrimination measures 160 Commonwealth legislation overriding state legislation 73 just compensation for property acquired by the state and the 1988 referendum 72 overseeing role of UN treaty monitoring committees 48 the state and bills of rights 63 state and local government political representation of women 173–4

271

states and territories Australian decriminalisation of homosexuality 183 developments at state and territory level affording rights protection 78 and infringement of human rights 32 introduction of Aboriginal land rights legislation 41 legislative role of 32 pattern of advancement of homosexual rights 182 status theories (of rights) 11–12 status offences 222 statute law (interpretation) 35–6 statutory (legislative) bills of rights 66 cultural value 75–6 draft law based on UK Human Rights Act 1998 73 enhancement of parliamentary role in rights framework establishment 74 promotion of a federal legislative bill of rights 73–4 proposals for the introduction of 73 role of judiciary in rights adjudication 74–5 supporting arguments 74–6 statutory rights 9 Stolen Generations 38 apology to 138–40 Stolen Generations inquiry 125, 131 substantive rights 7, 14 suffrage 85–9, 171 sunset clauses 238, 243–4 superannuation (accruement) 168 Tampa standoff 199–201, 203 temporary protection visa (TPV) policy 206, 210–12, 216 Teoh case (deportation) 47–8 terra nullius 126 terrorism 202 aims of terrorists 239–40 anti-terrorism aspects of the Criminal Code 222–3

272

Index

terrorism (cont.) Australian response to the war on terror 222–5 Australian Security Intelligence Organisation Act 1979 223–4 Australia’s level of risk 237–40 Bali bombings 237 the Constitution and preventive detention 225 control orders 224, 231–2 definition of terrorist offence 235 Howard government’s campaign to promote public awareness of terrorism 239 Ignatieff ’s views on responses to terrorism 243–6 inchoate offences 224–5 inmates at Guantanamo Bay 230–1 the law of sedition 223 legislation banning terrorist organisations 226 legislative provision for indefinite detention 225–6 motive and offences 224 National Counter-Terror Alert Level 237, 238 Philip Ruddock’s views on security arrangements 227–9 punishment without trial 223 responses to 240–6 securist and libertarian views on terrorism responses 241 security and liberal-democratic rights 221–2 theistic view (of rights) 11 third-generation rights 14 treaty 42, 44–7, 49, 128, 131, 140–1 treaty law 45 see also international treaty law trial by jury 29, 72 2020 Ideas Summit 174–5 UK Human Rights Act 1998 73, 74 unemployment and economic disadvantage 168

United Nations High Commissioner for Refugees 195, 209 United Nations human rights system 48–50 Australia’s position on 51 criticisms of 49 need for reform 50–1 universal childcare 169 Universal Declaration of Human Rights (UDHR) 8, 13–14, 120 lack of prohibition for discrimination against sexual minorities 181 the right to vote 86 and security 228 universal rights 8–9 universal suffrage 85, 86 unpaid work 167 US Bill of Rights 65–6 utilitarianism, and human rights 12–13, 23–4 Victorian Charter of Human Rights and Responsibilities Act 2006 77–8 violations (of rights) 13, 50 violence 144–6, 156, 175–9 ABS statistics 176–7 Australian government policies to address domestic violence 179 CEDAW and violence against women 175–6 challenges and limitations regarding policies and programs 178 hurdles to security 176 Ignatieff ’s views on responses to terrorism 243–6 Indigenous women and family violence 177–8 protection from violence by human rights fortification 242 see also personal safety (right to) voting 18–19, 28, 87–8, 107–10 compulsory voting 37, 86, 91, 101–3 malapportionment 107–8 preferential voting 86, 108 restrictions on right to vote 86 and a rights charter 111

Index

Saturday voting 86 secret ballot 86, 101 and universal suffrage 86 vote weighting 107–8 voting access 103–6 voting entitlements within the Constitution 87–9 voting rights 18–19, 28, 29, 37, 86, 171 see also disenfranchisement, elections, electoral rights Wave Hill protest 123 welfare passive welfare 133, 144 shared responsibility welfare paradigm 143–6 social welfare policy 134 welfare dependence 168 White Australia policy 196–7 Wik (1996) judgement 41, 128, 131, 134–6, 138 Women’s Electoral Lobby (WEL) 54 women’s rights activism for 175 agencies and policy concerning women’s rights 165–6 Australia’s substantive policy ranking 166 Australia’s women’s rights machinery 162–79 CEDAW as the first step towards encompassing women’s rights 159

273

Declaration on the Elimination of Violence against Women 176 gendered assumptions regarding women’s role as mothers and carers 166–7 international women’s rights conferences 161–2 internationalising women’s human rights 159–62 Labor government’s challenge of improving women’s economic rights 169–70 private nature of women’s vulnerability 157 protection of 32 right to equality 170–9 SDA amendments allowing discrimination between groups of women 40 and universal suffrage 86 women’s and human rights abuses 157 women’s economic rights 166, 170 women’s equality and bills of rights 69 women’s political rights under CEDAW 170 Women’s Rights Convention and treaties 45 WorkChoices legislation 169 Yogyakarta Principles 181 Yorta Yorta decision 137–8