Charter of Human Rights and Responsibilities

01/11/2006

by Karen Jackson
Commission Member
Equal Opportunity Commission Victoria
Address to Koori Staff Support Network

Introduction

I would like to commence today by acknowledging the Wurundjeri and Boonwurrung peoples as the traditional owners of land and pay respect to their ancestors, Elders, families and community. I also want to acknowledge all of you mob, our connection to land and country, community and Elders.

I am a Yorta Yorta, Barap Barap woman and so very proud of my heritage. My great great grandmother was Kitty Atkinson, born 1832 near Moira Lakes in the Barmah Forest. My great great grandfather was Finnimore Jackson, born 1868 at Mt Hope, Pyramid Hill,near Bendigo. My grandfather, Eddie Jackson, married Ada Cooper, coached the Echuca East Football Club for many years, and was a bootmaker and the chief steward at the Working Man’s club. My dad was also Eddie Jackson, he played 92 games for Melbourne in the VFL.

I work full-time as the Indigenous Services Coordinator at the St Albans campus of Victoria University, in the western suburbs. I’m also a Board member of the Ilbijerri Aboriginal & Torres Strait Islander Theatre Co-op, and a recent appointment to the Victorian Aboriginal Heritage Council.

This afternoon I will speak briefly about the EOCV and the new Victorian Charter of Human and Responsibilities.

My role as a member of the Equal Opportunity Commission

I joined the Commission in 2005, to fill a vacancy left by Aunty Joy Murphy-Wandin, and have just been appointed for another 2 years. As a part time Commission Member I have to take on the normal tasks required, however, my particular interest is in relation to matters that affect Victoria’s Koori community.

The ongoing grip of discrimination

There is a lot going on in Victoria at the moment that will enhance the Commissions capacity to address discrimination. But first, let me talk briefly about our ongoing “relationship” with discrimination in Victoria.

I often say to people, Koori people fight the system on a daily basis. We do this as part of “the struggle”. Our struggle comes from the policies and programs that have dogged us since the invasion of our lands. It comes from dispossession, dispersal, protection, assimilation, genocide, sovereignty, land rights, traditional owners, removal, concentration camps, poisonings, massacres, punitive expeditions and discrimination. Discrimination has been and remains a normal occurrence for blakfellas, where many of us are beyond being fed up and are at the point of giving up the fight against it. I understand why we can get to this point, but also find it alarming that we find it easier to let it go in a world that continues to disrespect and not recognize us.

It disturbs me that discrimination can affect Koori chances of completing, let alone excelling at school, enjoying a great career, renting the house of our choice, having access to all health and other important services and generally having the same opportunity to live life with the dignity and respect that any Victorian reasonably expects.

While discrimination complaints from Indigenous people are low at the EOCV, we know this is not representative of the actual situation out there in the community. As a government service we are faced with the challenge of making our service accessible to Indigenous Victorians. While we are currently reviewing the cultural appropriateness of our complaints process with a view to making it more accessible for Indigenous people, we do not fool ourselves by thinking that addressing Indigenous disadvantage is an easy task, or indeed in need of a quick fix.

It is for this reason that we welcome the Charter of Human Rights and Responsibilities which, in theory, aims to improve the work of State and local government compelling decision makers (be they law makers, bureaucrats, the courts, public authorities) to consider the human rights dimension of all matters before them and act compatibly with human rights.

The Charter of Human Rights: what does it mean and how will it work?

Parliament passing the Charter of Human Rights and Responsibilities was the first important step in embedding human rights into our daily lives. But the biggest challenge is still to come – to show Victorians the Charter’s importance and relevance to their everyday lives. In delivering the Inaugural Mabo Oration in Queensland last year, Noel Pearson said, “My primary concern with human rights is not so much their recognition but their enjoyment in reality rather than mere theory.” This too is the Equal Opportunity Commission’s concern and it is also our role.

In theory, the Charter aims to improve the work of State and local government. In practice it calls for statements of compatibility or incompatibility when new laws are introduced, and gives enhanced powers to the Parliamentary Scrutiny of Acts and Regulations Committee in assessing legislation against clear human rights principles. The Courts can interpret and make declarations of inconsistent interpretations but will have no power to strike out laws.

The EOCV will soon become the newly constituted Victorian Equal Opportunity and Human Rights Commission. We will have a number of tasks including informing Victorians about the existence and application of the Charter; annual reporting on the operation of the Charter and the provision of human rights education. Our educative role will be to develop and deliver a more sophisticated understanding of human rights and how the Charter may be used to extend human rights protections.

What difference will the Charter make?

The most fundamental contribution of the Charter will be to compel decision makers (be they law makers, bureaucrats, the courts, public authorities) to consider the human rights dimension of all matters before them and act compatibly with human rights.

This duty of consistent action is a very powerful tool in promoting human rights compliance. One of the benefits of a human rights instrument is that it gives prominence to human rights considerations within a very crowded public policy process that often renders human rights invisible or secondary, or worse, are only considered when they become a problem.

If we accept that new laws and policies should be subject to an economic and environmental appraisal so should they also be subject to a human rights assessment. This is, after all, a fundamental definition of our efficacy as a democracy – how we treat each other and how we expect to be treated. I hope that over time human rights will become understood principles that enhance public administration, just as good economic management is demanded of public administration.

Equality Rights and the Recognition of Aboriginal Culture in the Charter

The Charter makes explicit reference to Aboriginal culture in two parts – as part of the preamble, and then in the context of the right to culture under Section 19. The preamble states:

Preamble On behalf of the people of Victoria the Parliament enacts this Charter, recognising that all people are born free and equal in dignity and rights.

This Charter is founded on the following principle

human rights have a special importance for the Aboriginal people of Victoria, as descendants of Australia's first people, with their diverse spiritual, social, cultural and economic relationship with their traditional lands and waters.

Given the ongoing levels of discrimination experienced by Indigenous Victorians, the equality provisions in Section 8 of the Charter are also extremely important – even though they do not make a specific reference to Aboriginal issues:

When these provisions operate together with the procedural and enforcement provisions of the Charter it has the “potential” to result in public authorities being required to place significant prominence on the obligation to acknowledge, respect and support Aboriginal culture and to avoid any form of racial discrimination. This will happen in a range of ways:

whenever new laws are being drafted and developed the starting point must be that except where there are exceptional circumstances, the law must be written in such a way as to promote equality and respect the right of Indigenous people and communities to their culture.
in relation to both new and existing statutes, government departments and agencies that administer those statutes, and any courts or tribunals that are called upon to interpret and apply the law in a given situation, must follow a human rights compliant interpretation whenever the purpose of the law permits this. In other words, follow an interpretation that promotes equality and the cultural rights of Indigenous people.
when public authorities are developing policies and procedures they must identify the human rights dimension of what they are doing, and unless they have clear legal authority to do otherwise, only pursue an option that is compatible with human rights.

This is not to suggest the Charter requires a pre-determined outcome in relation to any issue, but what it does require – and this is genuinely significant – is a comprehensive consideration of the human rights dimension of a particular matter from it’s beginning through to it’s final response.

The Charter also varies or expands the framework for human rights analysis.

Firstly, it integrates international human rights norms into the interpretation and application of Charter rights – which should prove useful given the work by the UN towards a Universal Declaration on the Rights of Indigenous people.

The Charter also makes compliance with human rights a matter of complying with the domestic law of Victoria – this is particularly important from the perspective of those organisations and communities looking to use the Charter as an advocacy tool, the negotiation is no longer about just doing what is right, the negotiation is about doing what is required by the law.

Disappointments and what can be done

A number of advocates have been disappointed by the Charter not having as expansive a coverage as may have been hoped. Two omissions are particularly relevant to the Indigenous community.

the absence of a right to self determination; and
the absence of economic and social rights – in particular employment, housing, education and health care.

The Charter consultation committee commented that self-determination represented an unclear area of international human rights law that still needed to develop considerably, and as such recognition in the Charter was premature.

The continuing rates of Indigenous disadvantage across the spectrum of economic and social rights makes their absence from the Charter especially disappointing.

So where does that leave us? Still disappointed? Yes. Still fighting the struggle? Yes.

And as we all know, government legislation should be viewed as a starting point for further action towards change and that the notion of economic and social rights and self-determination trigger anxiety. This is because governments across the world are concerned that their inclusion in a human rights instrument means courts will make decisions that direct governments as to how they must allocate and spend resources. As the recent public response to the successful native title claim of the Nungar people in Perth demonstrates, the notion of Indigenous self-determination can be used to whip up near hysterical concerns and fears in the general community.

What this Charter does do is compel a review of its operation and coverage in 4 years time, and two of the issues that must be examined in this review are the addition of economic and social rights, as well as the concept of self-determination.

So between now and then, the government and the broader community need to be educated about these rights. Time must be taken to explain the content of economic and social rights and the concept of self-determination, and demonstrate that the recognition of these rights neither destroys the right of government to govern, nor splits the community into two like the notion of land rights does - “handing homes and backyards over to the descendants of first nations”.

This will be difficult task, however I see it as a vital step to having an appropriate debate about what this Charter can really give to Koori people. The Commission has a key responsibility in leading this educative process and it must do so by working closely with Koori communities.