Joanne Knight

April 29, 2009

Democracy, the old-fashioned way

Filed under: human rights — joanneknight @ 9:29 am
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Just as the grand old Windsor Hotel survived the wrecking ball and has been revived through an extensive restoration, so democracy in Australia is having new life breathed into it by the Human Rights Consultation. An Indian woman in a pink sari rises and laments the death of a soldier in war and proclaims the best way to protect human rights is to end war. A disabled woman from a peak disability body remains seated and advocates to protect the rights of disabled people to vote because the Electoral Commission has just decided that assistance to blind people to vote in privacy is beyond their resources.

Mary Kostakidis, one of the panel heading the consultation, said that the passage of a Human Rights Act represented the hallmark of a civilized society.

Various right wing and Christian groups advocated the rights of the unborn child and the right to express unpalatable religious views. One speaker referred indirectly to the controversy of anti-Islamic views expressed by Catch the Fire Ministries in 2004, as an infringement on freedom of expression and religion. Another speaker alluded to the recent debate surrounding the Victorian abortion legislation and the rights of doctors to refuse treatment. Certain groups see the requirement for doctors to refer patients to other help where they are unwilling to advise on abortion as an infringement on freedom of religious belief.

The variety and plethora of issues, causes and interest groups represented at the morning session of the Federal Government’s Human Rights Consultation in Melbourne represents democracy at its best. Numerous views of the pros and cons for a Human Rights Act in Australia were aired.

Our table heard a heart-wrenching story from a grandmother who has a grandson with a severe brain injury, unable to move or communicate, whose entire needs must be provided by another. Her concern for his welfare has fallen on deaf ears as she desperately seeks assistance in the bewildering world of human services bureaucracy and legal confusion. The concern that governments remain unaccountable was expressed over and over, as others articulated unease that a Human Rights Act would take decision-making out of the hands of Parliament into the hands of the judiciary.

As other countries, like Thailand, descend into turmoil because the people lack a voice to call their politicians to account, I felt proud of our country’s political system for the first time in many years. All listened with interest and tolerance to the views of others. Any disagreements were aired as differences of opinion, in a way that many politicians in Parliament could learn from.

While I felt ambivalent about the opulence of the Grand Ballroom at the Windsor Hotel as a venue, it seemed that the figures in the stained glass windows peered at us with curiosity and benevolence. The atmosphere of this grand room imbued the proceedings with an air of dignity which heightened the atmosphere of tolerance and rational debate.

The views expressed portrayed a Human Rights Act as the answer to many ills in our society, which of course it cannot be. We can only hope that the positions voiced will not simply disappear into some bureaucratic black hole but will inform the decision making process in this milestone in Australia’s history.


Human Rights and Corporate Responsibility

The debate in the Australian Parliament over the Fair Work Bill, earlier this year, highlighted some important issues on corporate responsibility and human rights. Rachel Nicholson from Allen Arthur Robinson law firm argues that under the Victoria Charter of Human Rights and Responsibilities, in certain circumstances, businesses already have a responsibility to protect human rights. The continuing small business exemption from unfair dismissal violates the rights of these workers to a fair hearing. Despite any legal ambiguity, it seems the drive for a culture protecting human rights is gaining force and business needs to be prepared.

Under the WorkChoices legislation, some businesses have been a little too eager to abandon corporate responsibility and impinge on labour rights, working conditions and fair pay. Internationally, companies have invested massive resources and money into countries like Indonesia and Burma, turning a blind eye to gross human rights violations, including the use of child labour.

A growing body of evidence details human rights violations due to corporate activities in poor communities in developing countries. A study undertaken by the International Network for Economic, Social and Cultural Rights (ESCR-Net) in June 2008, found that in 159 cases from 66 countries, business enterprises have had significant negative impacts upon the enjoyment of all types of human rights, in different political systems, around the world and across industries. Professor John Ruggie, UN Special Representative of the Secretary-General on Business and Human Rights in 2006 found that the oil, gas and mining extraction sector were responsible for two-thirds of reported abuses. The damage caused to company image in the past has been severe and lingers on even when the company cleans up its act.

Rachel Nicholson from Allens Arthur Robinson law firm, at the Everyday People, Everyday Rights Human Rights Conference on March 17, argued that a national human rights charter may make it possible to pursue human rights violations committed offshore by subsidiaries and related entities of companies incorporated in Australia.

In its Submission to the Senate Inquiry into the Fair Work Bill 2008, the Australian Human Rights Commission raised concerns that the Bill fails to fully implement Australia’s international human rights obligations. The continuing exemption of small businesses from unfair dismissal procedures violates the rights of more than a third of the workforce (36%) to procedural fairness and a fair hearing. It recommended that employees of all small businesses be entitled to the same protections from unfair dismissal as all other employees. The WorkChoices legislation seriously eroded the labour rights of Australian workers and the current government is continuing these appalling practices.

However in a seeming contradictory move last year the government launched a consultation process on how best to promote and protect human rights. Sixty years after the Universal Declaration of Human Rights, Australia is the only modern democracy without a national charter of human rights. Rachel Nicholson argues that under the Victoria Charter of Human Rights and Responsibilities, in certain circumstances, businesses already have a responsibility to protect human rights.

Under the Charter, where a company wins a government tender or otherwise receives government funding, it may be acting as a ‘public authority’. It is unlawful for a public authority to act in a way that is inconsistent with human rights set out in the Act and it has an obligation to give proper consideration of the impact of any decision on the rights protected.

Councils, Government Ministers and public officials have an obligation to act consistently with and give proper consideration to human rights in relation to all acts, omissions and decisions of a public nature, including the granting of contracts, project approvals and licences and the reviewing of impact assessments. Thus businesses applying for contracts, projects and licences are likely to be required to take human rights into account in the development of their project and be able to demonstrate that they have done so.

Telstra has expressed a general interest in having better protection of human rights in Australia. In its submission to the federal government last year it called for a national charter of rights, similar to the charters introduced in Victoria and the ACT, based on the statutory model adopted in Britain in 1998. However Telstra’s manouvering around negotiating a new enterprise agreement since June last year does not suggest a great respect for employees’ rights to freedom of association.

Ben Schokman of the Human Rights Law Resource Centre asserts that there is a sound economic case for a human rights charter. ‘When you look at human rights violations, whenever you’ve got the violation of a human right, that’s essentially a real cut to any human potential, it’s a cut to the economic potential of their society.’

With the passage of the Fair Work Bill, the arrangements for unfair dismissal procedures still fail to apply to significant numbers of the Australian workforce. If a human rights charter is passed, it leaves corporations in doubt as to their legal position. In spite of any legal uncertainty, it seems the movement to protect human rights is gaining momentum and business needs to be in position to meet the challenge.

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