Amnesty International Australia Public Forum, Melbourne Town Hall, 4 July 2008

Listen to an mp3 of Professor Larissa Behrendt's speech (duration=17:55, file size=6.2Mb)

The international human rights regime, of which the Declaration of Human Rights is a central instrument, has profoundly altered the world in which we live. While it has not stopped genocide, abuse, discrimination and other breaches of human rights it has fundamentally changed the way that we see the relationship between individuals and the state, or individuals and the government and changed how we assess whether behaviour does or does not breach human rights.

The notion that individuals hold certain rights inherently against the state or those who govern them could be found in the legal systems of the United States, of France, of Great Britain before the Declaration of Human Rights.

But the idea that these human rights are as broad, complex or comprehensive as they are, as inherent as they are, as sacrosanct as they are is a notion that has developed due to the normative effect of the international human rights regime established in the post-world war II era.

This human rights regime has provided us with a language to describe needs and to describe wrongs and it provides a framework against which we can assess human rights standards. And that is an important role to play in any country around the world where those within want to make a claim about the way their government treats them.

And this is a critical role here in Australia because our legal system has so few human rights protections. With no benchmark against which to assess human rights standards internally, we have been more reliant on the external rights benchmarks set by international human rights instruments and monitoring bodies.

Particularly when it comes to the treatment of Indigenous people, where we are often being told that policy being made is "in our best interests" and "with the best of intentions" the standards and language offered by the international human rights regime has been a critical tool for assessment and advocacy .

While the experience of Indigenous people in modern Australia offers many examples of the infringement of basic human rights - dispossession, genocide, cultural genocide, lack of access to services, racism in the provision of services - the policy of removing Aboriginal children from their families is one that also leaves a legacy in Aboriginal communities today.

In 1997, our High Court considered a case brought by several members of the "stolen generation" and a mother her had lost her child to the policy. The Aboriginal plaintiffs argued that the policy of removing children infringed on some of their basic human rights including the right to due process before the law, equality before the law, freedom of religion and freedom of movement.

That the High Court found that Australian law did not protect any of those rights gives us an important message about our legal system. It tells us that many of the rights that Australians would believe are protected by the laws of this country are actually not protected at all.

And the decision in the Kruger case also tells us that where there are gaps in rights protection in Australia, breaches of human rights are most likely to be experienced by the culturally distinct, socioeconomically disadvantaged and the historically marginalised.

Chief Justice Gleeson has referred to these gaps in protection of human rights as constitutional silences. And they raise the really important question posed by the Declaration of Human Rights and its companion international human rights instruments and that question is: how do we adopt these standards, these protections, into our legal system? How do we enshrine these principles into our domestic law?

A Bill of Rights is an important mechanism in seeking to remedy the harshest impacts of those omissions and the experiences in the Australian Capital Territory, which through its Human Rights Act has had a legislative bill of rights since 2004, highlights the important way in which increased adoption of international human rights standards into our domestic law can have a tangible and practical outcome.

The experience in the ACT has been that, while only relatively few cases have come to court using the Human Rights Act, the overwhelming impact has been on bureaucrats who are now required to think about the rights of the citizens of the ACT when they implement policies and programs. That is, the greatest impact has been to make government more accountable to the people in the way it does business. Every time a public servant wants to propose legislation and every time the ACT parliament wants to pass it, bureaucrats and politicians have to go through a process of thinking about how the laws they are seeking to pass are going to impact on the rights of the people of the ACT. And, in the case of parliament, they have to explain that impact and, importantly, explain when a right might be overridden or breached. They have to be more transparent and more accountable in the way that they govern and this can only strengthen the position of the individual in the relationship they have with the people who govern them.

The debates about how to balance the rights protected against other priorities remains in the public domain. It means that, when government’s debate the balancing of rights or propose to over-ride aspects of a Bill of Rights, this is a discussion that takes place in the public realm and allows citizens to become actively involved in that public debate about the way in which we balance and protect rights.

Bills of Rights are not about curtailing the rights of the majority. And they are not about giving more power to judges. Bills of Rights are aimed at ensuring a better balance between the rights of individuals against the state and as such are more often an infringement on the rights of governments than the rights of people.

When undertaking the community consultations as part of the work of the ACT Steering Committee on a Bill of Rights, I was struck at a view that, since the legal system works well enough, there is no need to tinker with it. Such a view applies a very narrow test of the success of Australia’s laws. It certainly excludes the experience of Indigenous people from that analysis.

The effect of this can be seen in Canada where the experience of a legislative Bill of Rights, that preceded the Constitutional enshrinement of certain rights, led to a more heightened awareness amongst Canadians that they held certain rights against their government. While a bill of rights there has not resolved all human rights issues, it has allowed for the creation of a culture of rights and this has meant that when it comes to debates about the valuing and balancing of rights - such as the rights of Aboriginal people against the rights of development - these debates are sophisticated and, unlike here in Australia, do not have to start with a discussion about why we are talking about rights in the first place.

In the absence of these benchmarks, we are left to trust the benevolence of government in order to have our human rights protected. And, again, as the experiences of Aboriginal and Torres Strait Islander people attest to, this blind faith that governments will do the right thing when it comes to human rights is no sure way to ensure their protection. Nowhere is this more clearly shown that in the approach taken by the Howard government and now the Rudd government in relation to the Northern Territory intervention.

Apart from the much needed additional resourcing of policing and health services, the key aspects of the intervention ignored what the evidence showed worked and instead embraced the ideologies of assimilation and mainstreaming (hence the failure to fund under-resourced Aboriginal health services on the ground), mutual obligation and shared responsibility (hence the quarantining of welfare payments), unlocking control of Indigenous controlled land so that it could be accessed by non-Indigenous interests (hence the repeal of the permit system and changes to land tenure) and that the "real Aborigines" live in the north (hence the extraction of resources from Indigenous programs in other states to fund the Northern Territory intervention).

The Rudd government has continued to support the intervention in government and has continued to roll out the quarantining of welfare payments with the justification that it is designed to improve school attendance.

The only clear evaluation of the linking of welfare payments to school attendance was undertaken with the Halls Creek Truancy Trial by Professor Robyn Penman who found that:

  • school attendance of the children did not improve over the course of the trial noting three factors:
  • lack of parental insistence that children get to school in the morning;
  • teacher quality (one teacher showed a 20% greater attendance rate than some of the other teachers), and
  • bullying and teasing and the general culture of the school.

The attitudes of the parents of Aboriginal children were only one of the factors that affected school attendance. The evidence pointed to the pivotal role that teachers and the school culture itself plays in a community where children decide their own time use patterns at a very early age.

There is no evidence that shows that linking welfare to behaviour reforms is effective. In fact, there is evidence to suggest that the imposition of such punitive measures in an already dysfunctional situation will exacerbate the stress in a household. And what the evidence does show works in getting Aboriginal children into schools are the following:

  • breakfast and lunch programs;
  • programs that bring the Aboriginal community, especially Elders, into the schools;
  • Aboriginal teachers aides and Aboriginal teachers;
  • Curriculum that engages Aboriginal children; and
  • Programs such as that developed by Aboriginal educationalist Chris Sarra that marry programs that promote self-esteem and confidence through engaging with culture with programs that focus on academic excellence.

This shows that there is much that the schools can also do to engage children with schooling. It suggests that, rather than simply punishing parents for their children’s non-attendance, the government should be providing schools and teachers that meet the needs of the Aboriginal community.

It should be noted that it cost the taxpayer $88 million to make the initial administrative changes in Centrelink to facilitate the welfare quarantining but not one dollar was spent in the intervention on any of the types of programs that have been proven to engage Aboriginal children in schools.

All this in communities where only 47c is spent to the $1 spent on non-Aboriginal student; in communities where there are not enough teachers and classrooms. A punitive measure placed on families to ensure their children come to school is hypocritical from any government that neglects the same children by failing to provide adequate funding for a teacher and a classroom.

I would also make this observation. I think it is deplorable that the government has made too many Aboriginal people who have been long deprived of basic funding for health, housing, education and policing in their communities receive these resources at the expense of their basic rights.

They have finally seen long needed resources coming into their community but they have been made to surrender their rights under the Racial Discrimination Act, the Trade Practices Act and the Northern Territory Land Rights Act. The provision of basic services should never have been intertwined with the stripping away of fundamental rights in this way. Nor should the provision of funding for basic services and infrastructure be given in circumstances that include the clawing back of their human rights.

As Australian citizens, Aboriginal people are entitled to adequate housing, adequate funding of teachers and provision of enough classrooms and an adequately funded and appropriate police service. They are entitled to these things without having to give up hard won rights to land and to forgo the protection against racial discrimination and unfair trading practices.

The quarantining of welfare payments in the Northern Territory was implemented in a blanket way and applied to people living in prescribed communities whether they were good parents or bad parents and whether they were parents or not. In order to do this, the government had to suspend the Racial Discrimination Act.

I have made it clear that I think that the policy of linking welfare payments to school attendance is one that cannot be supported because of it is simply bad, ineffective policy. But a government who cannot implement a policy, even a bad, ineffective one, without repealing the racial discrimination act is not a very good government.

There have only been three times that the Racial Discrimination Act has been suspended from applying since it was passed in 1975 - in relation to the Native Title Amendment Act, in relation to the Hindmarsh Island Bridge dispute and in relation to the Northern Territory intervention. Each time it has been repealed has been so that it cannot provide protection to the most vulnerable within the community.

The lack of protection from racial discrimination is not the only way in which Aboriginal people have experienced a failure of human rights protections in recent years.

Native title that has been extinguished will never be regained, cultural heritage that has been destroyed will never be recovered and failure to access adequate health services and opportunities for basic standards of education are difficult, sometimes impossible, to rectify. In fact, these losses are a reminder of why it is important to have rights protections in place when society moves away from valuing the importance of the rights of the vulnerable.

And it is these experiences of the infringements of the rights of the vulnerable that need to remain our focus. It is not enough to say that our human rights standards are better than other countries who have more brutal and systemic abuses of rights than those that occur on Australian soil.

I firstly question why we should not be as concerned about the Aboriginal child in Australia who has third world levels of health care as we are for the child actually living in the third world.

And secondly, it is not enough that we are better than the worst offenders on a human rights report card; we should be the best society that we can be.

Thomas Paine has said:

"When it shall be said in any country in the world, 'My poor are happy; neither ignorance nor distress is to be found among them; my jails are empty of prisoners, my streets of beggars; the aged are not in want, the taxes are not oppressive; the rational world is my friend, because I am the friend of its happiness': when these things can be said, then may that country boast of its constitution and its government."

Paine reminds us that a key function we should undertake in our society is to constantly question whether we are doing the best that we can.

I strongly believe and strongly advocate that Aboriginal people play a key role in assessing the fairness of our laws and institutions. I have always argued that it is never enough that laws, policies or the Constitution work for middle-class members of the dominant culture. The true test of their worth is the extent to which they work for the poor, the marginalised and the culturally distinct. Using this test, we can see that there is room for improvement in the rights of Indigenous people.

This is not a view that seeks to merely promote the views of minorities of that above others. Instead, it is a position that says that when those who are less well off in our society can find protection in the laws of this country, we have a better system of governance, a better society, and this is indeed a good outcome for every Australian.

The better protection of rights does not provide a panacea. It does not stop war, it does not stop poverty and it does not stop famine. But it provides a framework against which people in a community can judge itself, against which it can give itself a report card.

The challenge for us, 60 years on from the adoption of the Declaration of Human Rights is how we can better incorporate its principles and its protections into our domestic law. We need to think about a legislative bill of rights and we need to think about the entrenchment of perhaps three fundamental rights into the constitution - the right to be free from racial discrimination, due process before the law and equality before the law.

Professor Larissa Behrendt is Professor of Law and Director of Research, Jumbunna Indigenous House of Learning, at UTS. She is a practicing Barrister who has previously worked with the United Nations. She is currently Chair of National Indigenous Television, Director of Bangarra Dance Company and is on the board of the Museum of Contemporary Art. Larissa is also a judicial member of the Administrative Decisions Tribunal and the Serious Offenders Review Council and an Acting Commissioner on the Land and Environment Court, Fellow for the Australian Social Sciences Academy, a Foundation Fellow for the Australian Academy of Law and a member of the ARC College of Experts. She is published on property law, Indigenous rights, dispute resolution and Aboriginal women's issues and is a regular columnist for the National Indigenous Times. Home is her first novel.