There’s never been a better time: Enhancing the protection of human rights in Australia


By Professor Paula Gerber

There are many factors which point to now being the right time to focus on improving human rights in Australia, including,

  1. change of government at the federal level, from one that was largely hostile to human rights to one that has made many commitments to enhancing respect for human rights;
  2. the COVID pandemic which saw far-reaching restrictions on human rights and stimulated greater awareness of, and debate about, human rights generally; 
  3. the US Supreme Court decision in Dobbs v Jackson Women’s Health Organization overturning Roe v Wade which has made women in Australia feel vulnerable to similar regressive steps regarding reproductive rights; 
  4. the frequency of floods and fires, and the devasting impact they are having on many communities, has led to an increased interest in climate change as a human rights issue; and
  5. the public’s strong rejection of politicians and political candidates attacking transgender women.

Given that the Australian landscape appears ripe for increased protection of human rights, the question becomes: What are the human rights priorities in Australia? Professor Paula Gerber and Professor Michael Mintrom discussed this with ABC host Paul Barclay, in a recent episode of Radio National Big Ideas they identified the following reforms of being of critical importance.

A Federal Charter of Human Rights

Australia is an outlier when it comes to national protection of human rights, at least within the West. We are the only western democracy that does not have human rights legislation that applies to the whole country. Some Australian states and territories have decided that they are no longer going to wait for the federal government to take the lead, and have enacted their own human rights legislation. The result is that people living in the ACT, Victoria and Queensland enjoy rights protection pursuant to legislation that gives effect to the International Covenant on Civil and Political Rights (ICCPR), while people in New South Wales, the Northern Territory, Western Australia, South Australia and Tasmania have no such protection. This patchwork quilt approach to human rights is unacceptable and the enactment of a federal statutory charter of human rights is long overdue. 

Human Rights Education

The absence of a national Human Rights Act, is one of the barriers to comprehensive school based human rights education. Research demonstrates that having a national human rights instrument, increases education and awareness raising about human rights. Currently our national curriculum mandates that students learn about the Constitution, but in the absence of a federal Charter of Rights, they do not learn about human rights. This is in stark contrast with countries like the United States, where all students learn about the American Bill of Rights.

A key aspect of having a society that respects and protects human rights, is having a population that knows and understands human rights. This requires ensuring that children learn about human rights from an early age, so that they grow up knowing about their rights and the rights of others and understand them as an inherent part of coexisting in a harmonious and peaceful community, both locally and globally. 

Respecting the rights of LGBTIQA+ People

There is no denying that the rights of LGBTIQA+ people took a significant battering under previous coalition governments. The postal survey that preceded the attainment of marriage equality in 2017, was unnecessary, divisive and sanctioned homophobic and transphobic hate speech under the guise of “civilised debate”. This was closely followed by further attacks and regression, including the defunding of the Safe Schools program and Scott Morrison’s relentless (unsuccessful) efforts to pass his Religious Discrimination Bills, that were described as a sword rather than a shield, and legislation that would have given people of faith license to be bigots.

Repairing the harm done to LGBTIQA+ people by this sustained persecution requires the Albanese to implement a variety of reforms including, 

  • amending the Sex Discrimination Act to ensure that religious schools cannot expel LGBTIQA+ students nor dismiss teachers because of their sexual orientation, gender identity or intersex status; 
  • counting LGBTIQApeople in the next census, including same-sex families; and 
  • greater consultation and funding for LGBTIQA+ health services, to address the unique health issues and barriers to accessing health services that LGBTIQA+ Australians face.

In addition, the Albanese Government would do well to follow the lead of Victoria and the UK, by appointing a Minister for Equality. Having such a Ministry would help the government to focus on promoting equality of opportunity for everyone.

Conclusion

The specific human rights reforms outlined above are by no means an exhaustive list and there are many other human rights priorities that also need to be addressed, including, 

  1. giving effect to the Uluru Statement from the Heart and advancing and expanding the Treaty and Truth-Telling process that is taking place in Victoria, to other parts of the country;
  2. raising the minimum age of criminal responsibility to 14-years-old and reducing the youth incarceration rates, particularly the disproportionately high rate of incarceration of First Nations your people;
  3. ending indefinite and arbitrary immigration detention of refugees and asylum seekers; 
  4. achieving gender equality and combatting family violence; and
  5. implementing just transition policies and practices to facilitate the move from fossil fuel to clean energy in a manner that protects the rights of all people impacted by these changes; and 

Australia’s reputation as a country that respects the rights of all people has taken a significant battering in recent years. The Albanese Government has the opportunity to start repairing that damage by implementing the long overdue reforms highlighted here. Such reforms would benefit individuals, minority groups and society as a whole, as well as businesses and governments who derive economic benefits from respecting human rights.


You can listen to the episode of Radio National Big Ideas featuring Professors Paula Gerber and Michael Mintrom here, on the ABC Listen app or wherever you get your podcasts.


Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law. Professor Gerber has expertise in international human rights law generally and has a particular interest in children’s rights and the rights of LGBTQIA+ people.

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