By Paula Gerber and Melissa Castan
It’s easy to tell we’re in a federal election campaign – politicians are everywhere, parading around in high-vis vests and kissing babies who just want to be back in their parents’ arms.
You can also tell politicians are on the campaign trail by what they’re not talking about.
They’re not talking about human rights – neither major party has a policy to strengthen the protection of human rights in Australia.
This is shameful, given we’re the only Western country to not have a Bill of Rights. New Zealand, the US, Canada and the UK, for example, have all recognised that human rights are important enough to warrant protection in national legislation.
Not Australia. Mention a national Bill of Rights, and politicians run for the hills.
So why does Australia need a federal Human Rights Act? Aren’t human rights here already well-protected?
A recently published two-volume collection comprises 46 chapters by Australia’s leading human rights experts and documents the many pressing human rights issues facing Australia. It doesn’t make for pretty reading.
This article considers just two areas where human rights violations are being perpetrated across Australia with impunity – against Indigenous peoples and LGBTIQ+ people.
These issues need urgent attention, and should be part of the conversations we’re having in the lead-up to a federal election.
Little progress on Indigenous rights
We’re not making any progress in overcoming Indigenous inequality. A recent report found that:
“In the 30 years since the Royal Commission into Aboriginal Deaths in Custody, the NDICP [National Deaths in Custody Program] has recorded 489 Indigenous deaths in custody, including 320 in prison, 165 in police custody or custody-related operations, and four in youth detention.”
That equates to more than one death in custody every month for three decades. How can we as a country tolerate this?
The systemic racism and structural inequalities that enable this to happen must be addressed. These include raising the age of criminal responsibility from 10 to 14. This would significantly reduce Indigenous youth incarceration rates.
Indigenous youth comprise 6% of the 10-17 youth population, but more than half of all the young people in detention. This is because Indigenous youths are jailed at 20 times the rate of non-Indigenous children.
Australian governments, including state and territory governments, have committed to raising the age of criminal responsibility from 10 to 12, but this isn’t enough. The age at which a child can be held criminally responsible shouldn’t be lower than the age at which they can have a Snapchat or Instagram account (13).
The entrenched disadvantage Indigenous Australians experience is only possible because of the structural discrimination embedded in our legal system.
The Uluru Statement from the Heart is an invitation to work together to address this systemic discrimination by establishing a First Nations Voice to Parliament and a commission to explore treaty making and truth-telling.
The Uluru Statement was developed in 2017. Five years later, there’s no sign our government is ready to accept the invitation and work with Indigenous Australians to build a better, more equal, future.
Protest marchers, one with a sign with the Aboriginal flag, reading ‘We are still here‘.
No significant improvement for LGBTIQ+ rights
Marriage equality was attained in Australia in December 2017. Although many same-sex couples have tied the knot since then, there’s been no significant improvement regarding the human rights of LGBTIQ+ people. Some of the pressing human rights violations that need to be addressed are:
Prohibiting gender-normalising surgery on intersex infants
Approximately 1.7% of infants are born with sex characteristics that don’t reflect the binary medical and social norms of “female” or “male” bodies. Often, “normalising” surgery is performed on these intersex infants to try to make their genitalia conform to cultural and gender norms.
Such surgeries, which are not medically necessary nor supported by scientific evidence, constitute a breach of human rights, and must be prohibited.
Removing religious exemptions from anti-discrimination legislation
While all Australian states and territories prohibit discrimination of the basis of sexual orientation and gender identity, some exempt faith-based organisations from complying with these prohibitions, even if they’re providing services traditionally provided by government, such as healthcare, education and social services.
Banning ‘conversion therapy’
Conversion practices is the name given to pseudoscientific endeavours that involve psychological and physical interventions, often faith-based, to try to change a person’s sexual orientation or gender identity. Such practices are often psychologically damaging and lead to higher risks of psychological stress, poor mental health, self-harm, post-traumatic stress disorder and suicide.
Conversion practices are inherently humiliating, demeaning and discriminatory. Despite constituting a fundamental breach of human rights, they’ve only been prohibited in three Australian jurisdictions – Victoria, the ACT and Queensland.
A nationally coordinated response is required to ensure such practices are comprehensively and uniformly banned, and to support survivors of such trauma.
Protecting the rights of transgender and gender-diverse people
The tsunami of anti-trans laws being introduced across the United States is truly staggering. A moral panic is fuelling numerous pieces of legislation requiring transgender athletes to compete in sports according to the sex assigned to them at birth, which is completely contradictory to the IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations, which provides that:
“No athlete should be precluded from competing or excluded from competition on the exclusive ground of an unverified, alleged or perceived unfair competitive advantage due to their sex variation, physical appearance or transgender status.”
Laws have also been passed in multiple states, prohibiting any discussion of gender identity in classrooms.
Perhaps most troubling of all are moves to define gender-affirming health treatment as child abuse, turning supportive parents of trans children and medical practitioners into criminals.
In Australia, the anti-trans views being expressed by politicians such as Mark Latham and candidates such as Katherine Deves suggest we may be heading down a similar path.
We’ve already seen attempts to wind back the human rights protections LGBTQ+ people fought so hard to achieve. Some of these have failed; for example, neither the Religious Discrimination Bill 2021 (Cth) nor the Education Legislation Amendment (Parental Rights) Bill 2020 (NSW) were passed by parliament.
However, other attacks on LGBTQ+ people have been more effective, including the defunding of the Safe Schools program.
Having a national Bill of Rights would not immediately fix all of these problems. But it would be a good start. It would elevate the level of debate about human rights in this country, but would need to be accompanied by improved independence and increased funding for the Australian Human Rights Commission.
It’s time to ask our politicians the hard questions about what they intend to do to strengthen human rights protections if, on 21 May, the Australian people elect them to form government.
Paula Gerber is a Professor in the Faculty of Law at Monash University, and a member of the Castan Centre for Human Rights Law. She specialises in international human rights law, with a particular focus in LGBTI rights and children’s rights.
Melissa Castan is an Associate Professor in the Faculty of Law at Monash University, and the Director of the Castan Centre for Human Rights Law. She teaches, researches and writes on Australian public law, Indigenous legal issues, human rights law, and legal education.