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Stott Despoja, Natasha --- "Stop undermining human rights" [2003] AltLawJl 49; (2003) 28(4) Alternative Law Journal 165

Stop undermining human rights

NATASHA STOTT DESPOJA[*]

Natasha Stott Despoja proposes measures to strengthen and protect human rights in Australia.

As the highest legal officer in the land, it is arguable that the Federal Attorney General holds the most significant position in the Executive aside from the Prime Minister. But these days, we are more likely to give this mantle to others-most often, the Treasurer. This is a sad reflection on the political reality in Australia-one in which money takes precedence over the rule of law, the separation of powers and the protection of fundamental human rights.

Of course, we are also witnessing this trend at an international level, with a departure from the notion of sovereignty in our pursuit of free trade, yet at the same time displaying a reluctance to reach through the borders of sovereign states when it comes to addressing human rights abuses.

Human rights

The protection of human rights and the separation of powers must be a core focus of the government's agenda. We must ensure that Australia becomes a model citizen in the international community with respect to the protection of human rights. To date rather than providing leadership on human rights issues, our current Attorney General has acquiesced to unprecedented attacks on such rights. His legacy as the Federal Attorney General will be a record of departures from foundational legal principles and fundamental human rights. I believe that future generations will look back on this period of our nation's history with a sense of great shame.

International Criminal Court

We must reaffirm our commitment to the International Criminal Court and decline the USA's request to enter into an agreement which would grant its citizens immunity from prosecution in the Court.

ASIO and anti-terrorism legislation

Changes to the ASIO Act and a number of other anti-terrorism laws constitute an entirely inappropriate response to the threat of terrorism and should be repealed. That is not, however, to deny that the threat of terrorism presents significant challenges for advocates of human rights. The 'right to life, liberty and security of person', enshrined in Article 3 of the Universal Declaration of Human Rights, is arguably the most fundamental human right and we must prevent it from being indiscriminately violated by terrorists. Since the terrorist attacks on September 11, there has been a great deal of talk about the need to balance safety on the one hand, and the protection of human rights on the other.

In my view, this dialogue is misconceived and dangerous. Like the government's package of anti-terrorism legislation, it is founded on the fallacy that safety from terrorism is somehow inconsistent with the protection of human rights.

On the contrary, safety from terrorist attacks comes within the scope of the right to life, liberty and security of person. For this reason we must adopt a holistic approach to the protection of human rights. A degree of balancing is, however, still necessary. This is not because safety and the protection of human rights are inconsistent, but because the simultaneous protection of different human rights can sometimes present practical challenges.

Human Rights and Equal Opportunity Commission (HREOC)

The Australian Human Rights Commission Legislation Bill 2003 seeks to emasculate the Commission. Instead we should explore ways to increase HREOC's capacity to protect the human rights of Australians, including the immediate appointment of a Disability Discrimination Commissioner and a Race Discrimination Commissioner.

Following unsuccessful attempts to abolish the offices of Disability Discrimination Commissioner and Race Discrimination Commissioner on two previous occasions, the government unofficially amalgamated these offices with other specialist offices, by failing to appoint replacement Disability and Race Discrimination Commissioners when the previous Commissioners retired in the late 1990s.

Since that time, the Human Rights Commissioner has held the dual role of Acting Disability Discrimination Commissioner and the Aboriginal and Torres Strait Islander Social Justice Commissioner has taken on the position of Acting Race Discrimination Commissioner, diminishing HREOC's capacity to fulfil its functions in relation to each of these human rights.

I would also advocate for a significant funding increase for HREOC, following a 40% reduction in funding under the Howard Government. HREOC plays an invaluable role, not only in protecting the human rights of Australians, but also in educating the community and providing leadership on important issues, as the Sex Discrimination Commissioner has done on paid maternity leave. It is imperative that HREOC is equipped with sufficient resources and powers, and its independence is fiercely protected, so that it can fulfil the very important mandate it has on behalf of the Australian community.

A Bill of Rights

Of course, the role of HREOC is fundamental as long as Australia remains the only common law country without a bill of rights. My Party has campaigned consistently for an Australian bill of rights and introduced Private Member's Bills to this end. Unfortunately, our efforts have come up against a government content to leave the human rights of Australians vulnerable and unprotected. As Federal Attorney General, I would introduce a legislative bill of rights as a first step before exploring the possibility of Constitutional change.

Constitutional change -The Republic

It is time to respond to the will of the vast majority of Australians and establish an Australian republic with an Australian Head of State. As a first step a plebiscite on the issue should be held at the time of the next federal election.

Gene technology

The issue of genetic privacy represents something of a missed opportunity for Australia, as our government has been content to sit back and let other countries take the lead on this issue. It has always been my view that this issue presented Australia with an amazing opportunity to provide vision and leadership in a context in which the cross-over between human rights and technological advancements raised unprecedented challenges.

For this reason, I introduced a Private Member's Bill in 1998 designed to protect the genetic privacy of individuals. The government and the opposition opposed the Bill on the grounds the proposed provisions were 'unnecessary' and 'futuristic'.

So when the government finally decided to extend privacy laws to the private sector, through the Privacy Amendment (Private Sector) Act 2000, I moved amendments which would have specifically protected genetic privacy. Although the Senate initially passed those amendments, Labor abandoned their support for them on the Bill's return from the House of Representatives.

Nevertheless, this work eventually resulted in an inquiry into genetic privacy, conducted by the Australian Law Reform Commission and the Australian Health Ethics Committee. The Inquiry, which presented its final report in May, represents an acknowledgement by the government that it will need to grapple with the issue of genetic privacy in the near future.

The pursuit of laws to prevent genetic discrimination and to protect genetic privacy has been my passion, so the chance to be Attorney General would present me with an irresistible opportunity to address the legal challenges associated with this rapidly developing area of biotechnology.

Conclusion

Many of these issues are difficult to grapple with but our focus must always be on the protection of human rights. Differences of opinion should be within a strong human rights framework, rather than pitting the protection of these rights against other interests.

This is where I would adopt an entirely different approach to the current Attorney General. Rather than introducing legislation designed to undermine human rights in Australia, I would initiate measures to strengthen their protection.


[*] Natasha Scott Despoja is Senator for South Australia, Democrats' spokesperson on Privacy, Science and Biotechnology, Higher Education, Foreign Affairs, Women, Work and Family, Local Government and Territories.

email: senator.stottdespoja@aph.gov.au

©2003 Natasha Stott Despoja


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