THE HON MARK DREYFUS QC MP
Restoring a human rights-based approach
Annual Castan Centre for Human Rights Law Conference
22 July 2022
Acknowledgement of Country
I wish to acknowledge the Wurundjeri people of the Kulin Nations, on whose land the conference is held today. I pay my respects to their Elders past and present. I’d like to extend that respect to any Indigenous people joining the conference today.
Thank you for your welcome. It is a great pleasure to be here this morning to address the Annual Castan Centre for Human Rights Law Conference.
This is my second time speaking at the Conference and I am very happy to have been offered the opportunity to address this conference again as Attorney-General.
It is an honour to have the opportunity to once again serve as the first law officer of the Commonwealth, committed to ensuring that Australian laws reflect our national values of fairness and equality of opportunity.
Today I want to speak about the work the Albanese Government will be doing, as part of our election commitments, to restore a human-rights based approach to public life in Australia.
But, before I get into the detail of my speech, I’d like to reflect on Ron Castan AM QC, the namesake of the Castan Centre for Human Rights Law. Ron contributed richly to human rights in our country. He was known for his dogged pursuit of justice for individuals and communities, and he left a lasting influence across our legal system. I had the honour and privilege of working with Ron on a number of cases. As you know, Ron played a leading role in supporting the applicants in the Mabo case. Just a few weeks ago we celebrated the 30th anniversary of that momentous decision and honoured the legacy of the man behind that ruling, Eddie Koiki Mabo.
The Mabo decision recognised for the first time under Australian law that First Nations peoples have lived in Australia for thousands of years, and that rights to their land according to their own laws and customs not only pre-dated, but survived settlement and continue to this day.
The significance of this decision, and Ron’s part in it, was so aptly summarised by the Hon Justice Michael Kirby when he said:
“In two hundred years’ time, and more, they will still talk of Mabo. There was no more radical design than that which Ron Castan conceived with his colleagues to rewrite 150 years of settled land law. It was a plan breathtaking in its boldness. It challenged fundamentals. It did so in an area traditionally resistant to change in every legal system - rights in land… In a moment, 150 years of terra nullius was cast aside. A new chapter in the legal rights and national dignity of Australia's indigenous peoples was begun.”
Ron Castan and the Mabo case are particularly significant in the context of this address. As I stated in my 2013 address to this Conference, it is my intention that Australia continue to honour and build upon Ron Castan’s legacy of Indigenous justice. This government has committed to constitutionally recognising an Indigenous Voice to Parliament, and I will work closely with the Minister for Indigenous Australians, Linda Burney and with the Special Envoy for Reconciliation and the Implementation of the Uluru Statement from the Heart, Senator Patrick Dodson. This will be another long overdue chapter in recognising the legal rights and national dignity of Australia’s Indigenous peoples.
Constitutional Recognition/Voice to Parliament
The Albanese Government believes all people are entitled to respect, equality, dignity and the opportunity to participate in the social, cultural and economic life of our nation.
But principled statements about the importance of human rights are not enough – the onus is now on us, the new Albanese Labor Government, to make the necessary changes to enshrine these values in the laws of our nation.
There is a lot of work to do. I don’t need to tell you, as experts in the field, how bad things had become over the last near-decade of coalition government.
‘Human rights’ was not a phrase that regularly passed the lips of coalition ministers. The Australian Human Rights Commission, especially in the early years of the previous government, was treated with absolute contempt. It has been a shameful period.
But Australia has a proud history of human rights, and the situation can be recovered. In fact, I see this task as one of my most important jobs as Attorney-General.
Australia was a founding member of the United Nations and one of just eight nations involved in drafting the Universal Declaration of Human Rights, which was adopted in 1948.
This Albanese Labor Government acknowledges Aboriginal and Torres Strait Islander peoples as the Nation’s First Peoples. We recognise their inalienable right to self-determination; their right to maintain language, cultural lore and practices; and connection to, and custodianship of, their traditional lands, seas and waterways.
We are committed to implementing the Uluru Statement from the Heart in full, including recognising First Nations people in the Constitution by enshrining a First Nations Voice.
Enshrining the First Nations Voice in our Constitution is a landmark reform for our nation. It will ensure First Nations people are heard and that they are given a direct say in matters that affect them.
Our Government has begun work on the Voice referendum. There is a lot that goes into building a proposal, building a consensus and organising the timing and practicalities of a referendum. However, we are committed to this referendum.
A successful referendum requires as much community support as possible, at the heart of which lies support from First Nations people. We will work in partnership with First Nations people, and consult the Australian community more broadly, throughout the lead‑up to the referendum. This will include, I hope, productive engagement with the Opposition and the cross-bench. The engagement with Indigenous and non‑Indigenous Australians will be broad, it will be based on respect, and it will be focused on building consensus.
There is a paragraph from the Uluru Statement which I find to be one of the most moving. It reads:
“Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.”
Addressing over-incarceration of Indigenous Australians is critical to our human rights agenda.
It has been over 30 years since the Royal Commission into Aboriginal Deaths in Custody, and it is unacceptable that incarceration and deaths in custody rates for First Nations people remain so tragically high.
Turning the tide on incarceration and deaths in custody is not impossible. First Nations people have always held the solutions to these issues. In line with the National Agreement on Closing the Gap, these solutions must be community-led and implemented by First Nations people and organisations.
To enable these solutions, the Albanese Government is committed to working in full partnership with First Nations people to expand justice reinvestment initiatives across the country, through the establishment of locally tailored initiatives that address the underlying causes of incarceration and deaths in custody.
To achieve this, the Albanese Labor Government has committed landmark justice reinvestment funding of $79 million, including establishing and expanding community-led justice reinvestment initiatives across the country.
I will be working closely with the Minister for Indigenous Australians, and my state and territory counterparts, to ensure these important justice reinvestment initiatives are fully implemented across the nation.
In speaking of the rich history of First Nations Australians we are reminded of the diversity of Australia which is so essential to our success as a nation. It is necessary to protect this diversity, and in doing so, uphold and strengthen those fundamental human rights which allow diversity to flourish.
Australia’s anti-discrimination framework promotes equality in Australia and provides protection against certain forms of discrimination. These laws contribute to fostering acceptance and appreciation of diversity in our community. I have long been a champion of this framework, and the Albanese Government is committed to updating anti-discrimination law to ensure that rights are protected, and at the same time, ensure that those rights do not lead to discrimination.
Accordingly, part of this government’s human rights agenda is the introduction of legislation to prevent faith-based discrimination.
It is central that the right to freedom of thought, conscience and religion in accordance with Australia’s international obligations, including our obligations under Article 18 of the International Covenant on Civil and Political Rights, is upheld and protected.
Every Australian has the freedom to have or adopt a religion or belief, or to change a religion or belief, or not to have or adopt a religion or belief. This freedom is absolute.
However, federal anti-discrimination law currently does not protect against discrimination on the basis of a person’s faith, whether that be a Muslim person refused entry into a business on the basis that they wear a hijab, or a Hindu person refused a job because of their faith. Accordingly, the Albanese Government will introduce legislation in this parliamentary term to prevent faith-based discrimination, and fill this gap in the law.
We will also include anti‑vilification protections in the legislation to ensure that no-one can be the target of hate on the basis of their faith.
I want to be clear, however – these protections must not, and will not, come at the expense of the rights of other Australians. This is not a zero sum game. We can improve the rights of a particular group of Australians while also keeping protections for others intact. It can be a difficult job, of course, but nothing that is beyond the ability of a good and careful government.
In my 2013 Castan Centre address I noted that reforms to better protect human rights will necessarily spark debate within communities and we must be able to conduct an honest and constructive debate on the policies that are required.
This is our guiding principle - strengthening our anti-discrimination laws are an opportunity to unite our nation, rather than divide it.
Amendments to the Sex Discrimination Act
The Albanese Labor Government believes that LGBTIQ Australians deserve the same human rights, equality, respect and safety as every other Australian. Accordingly, the government is committed to amending section 38(3) of the Sex Discrimination Act to prohibit schools from discriminating against students because of who they are.
We know most religious schools don’t expel or discriminate against their students because of who they are, nor do they want to. Changes can be made to protect all children, while still ensuring that religious schools are able to conduct themselves in accordance with the teachings of their faith.
The Government also wants to ensure that staff in religious schools are protected from discrimination while, at the same time, maintaining the right of religious schools to preference people of their faith in the selection of staff.
The [email protected] Report, and a range of more recent reports and inquiries, continue to highlight the unacceptable levels of workplace sexual harassment in Australia.
We know that sexual harassment is not just a women’s issue and that to create safe and inclusive workplaces, we must address the underlying drivers of gender inequality. I want to acknowledge the impact sexual harassment has on Aboriginal and Torres Strait Islander people, and people with a disability, and other groups such as the LGBTIQ+ community, who are much more likely on average to experience workplace sexual harassment.
I was pleased to recently attend the [email protected] Council Forum and as I said then, and I will say here, sexual harassment is unacceptable but it is by no means inevitable. It is preventable.
There is now a lot of work being put into that preventive effort – and I would like to acknowledge here the significant work done by the union movement in the wake of the [email protected] report, but also for the many decades before, when they have been supporting workers who may have been harassed at work, and in agitating for systemic change.
The Albanese Government is working full steam ahead on implementing the recommendations from the [email protected] Report in full.
The Federal Government will lead the work to implement these reforms, and will look to partner with regulators, employers, and unions to fully implement all recommendations. I know that the [email protected] Report is also informing the work of state and territory governments to prevent and address workplace sexual harassment.
The Albanese Government is committed to introducing in the Sex Discrimination Act a positive duty on employers to prevent sexual harassment in the workplace. We will do this in the course of pursuing all the outstanding legislative reforms including to explicitly prohibit sexual harassment under the Fair Work Act.
The Albanese Government has also committed to investing more than $35 million over 4 years towards [email protected] implementation – including $24 million to properly fund Working Women’s Centres across Australia. This funding will also enable the Australian Human Rights Commission to establish a one-stop shop and put in place a disclosure process to assist those who have experienced sexual harassment, to hear and confidentially document their historical disclosures.
Integrity and merits-based appointments
A central part of the government’s agenda is to restore integrity and confidence in government. The Albanese Labor Government is committed to legislating a National Anti-Corruption Commission by the end of this year. The Commission will operate independently from government and will have broad jurisdiction to investigate serious and systemic corruption across the Commonwealth public sector, including parliamentarians and staff, public officials, and contracted service providers. The Commission will be a long overdue addition to our integrity frameworks.
In addition to the NACC, the government is committed to strengthening integrity of government processes. In my own portfolio, I will be particularly focused on ensuring that processes for appointments to the judiciary and independent tribunals and statutory bodies are transparent and merits-based.
An independent Human Rights Commission is fundamental to Australia’s human rights agenda - both internationally and domestically. The Albanese Labor Government strongly supports the work of the Australian Human Rights Commission and is committed to restoring integrity to the process of Commissioner appointments.
Our commitment is that all future appointments to the Australian Human Rights Commission will be made via a transparent and merit-based selection process that is publicly advertised.
This is important to progress as a priority as many of you here today would be aware that in March 2022, the Global Alliance of National Human Rights Institutions’ Sub-Committee on Accreditation deferred the Commission’s re-accreditation until October 2023, on the basis that the selection and appointment process for Commissioners did not fully comply with the Paris Principles. Specifically, the Sub-Committee were concerned about three direct appointments that were made to the Commission without going through a selection process.
If Australia’s National Human Rights Institution is downgraded to ‘B’-status this would do considerable domestic and international reputational damage. It would also limit the ability of the Commission to independently engage with international fora, such as the UN Human Rights Council, which restricts access to ‘A’-status institutions.
To address this we will be introducing a Bill early in coming weeks to amend relevant legislation to ensure that all future statutory Commissioner appointments to the Commission will be made using a merit-based and transparent process that fully complies with the Paris Principles. The legislative amendments will remove the ability for direct appointments to be made to the Commission without a merit-based and publicly advertised process.
Another matter that I want to address this morning is the Privacy Act. As I said recently, one of the greatest dangers to privacy and personal information in the modern era is people losing control of their own information.
Australia’s privacy laws give effect to Article 17 of the International Covenant on Civil and Political Rights which provides that no one shall be subjected to unlawful or arbitrary interferences with their privacy. They seek to balance the protection and promotion of individual privacy with other legitimate interests, including entities carrying out commercial activities. But in an increasingly online world, people’s personal information is being used in ways that are highly invasive, in a manner which they have not truly consented to, and which is ultimately not fair or reasonable.
Privacy laws are also vital for the protection of human rights where personal information may be used to unlawfully discriminate. Strong privacy laws are therefore critical both for the right to privacy and the right to non-discrimination.
This is why the Privacy Act 1988 needs reform for the digital age. The Government will consider the extensive feedback that has been provided to the Attorney-General’s Department over the course of its review of the Act. The review will provide a report to the government later this year.
Of course, privacy rights involve more than the protection of personal information. Article 17 of the ICCPR also provides that no one shall be subjected to unlawful or arbitrary interferences with their privacy, family, home or correspondence, nor to unlawful attacks on their honour or reputation. It is a fundamental human right that underpins our freedom to associate, to think and express ourselves, and to be free from unlawful discrimination. It is important that we continue to remind ourselves of this broader conception of privacy and to closely scrutinise all laws and proposals against its high standard of protection.
As I said when first appointed Attorney-General in 2013 by Prime Minister Gillard, “Australia’s legal system should provide a framework that allows us to protect and care for all Australians, including our elderly, our sick, our injured, our workers, our new arrivals, our Indigenous people, our young and our outspoken writers, artists and journalists.”
I still believe that. A greater focus on human rights in Australia can help us reach these aims, and that is what I hope to achieve as Attorney-General.
Friday, 22 July 2022