Ed Santow, Human Rights Commissioner speaks to an audience at the Queensland Council of Social Service (QCOSS) Annual General Meeting.

He provides insights into the issues being faced by the LGBTIQ community beyond changes to marriage law, the potential benefits of Australia ratifying Optional Protocol to the Convention Against Torture, insights on a Human Rights Act and a number of other topics.

Transcript

Kate Tully:

Ed has been the Human Rights Commissioner for the Australian Human Rights Commission since August of last year. He leads the Commission's work on modern slavery, on detention and on implementing the optional protocol to the Convention Against Torture or OPCAT. As well as working in marriage equality and other human rights issues affecting the LGBTI community. Ed also has primary responsibility for the Commission's work on freedom of expression, freedom of religion and freedom of association. So you can imagine he's been a little bit busy this year. His areas of expertise include Human Rights, public law and discrimination law. Ed's a senior visiting fellow at the Uni of New South Wales and he also serves on a number of boards and committees including the Australian Pro Bono Centre. In 2009 Ed was presented with an Australian leadership award and this year he was recognised as a young global leader by the World Economic Forum. From 2010 until to his appointment to the Commission in 2016, Ed was the Chief Executive of the Public Interest Advocacy Centre, a leading non-profit organisation that promotes human rights through strategic litigation, policy development and education. In a former life, which I can't imagine when that was, he was also a senior lecturer at Uni of New South Wales law school, a research director at the Gilbert and Tobin centre of Public Law and also a solicitor in private practice. Would you please join me in welcoming Ed Santow.

 

Ed Santow:

Thank you very much Kate for that warm introduction. I'd like to add my own acknowledgement to the Aboriginal owners of the land on which we meet the Jagera people and their Turrbal people. I'd like to acknowledge Mark Henley as CEO of QCOSS and the board members, the staff and the members of QCOSS. None of you do the excellent work that you do for gratitude but you certainly deserve it.

Reflecting on the current state of US politics, the writer Rebecca Solnit dreamed up something that she called the compliant compass. This is a wonderful device because it agrees that North is wherever you want it to be. You could be lost in the middle of the jungle worrying about the crocodiles snapping at your heels and how you'll survive. But then you remember you have your trusty compliant compass. You whip it out and you're relieved to see that home is straight ahead. The best part is that it doesn't matter which direction you walk in because you're always right. As someone with a poor sense of direction and there's also a bad with maps this would be very reassuring to me. You can stride on confidently knowing that in two shakes you'll be sitting in your easy chair with a nice refreshing drink. Of course, there's also a downside eventually the happy delusion is shattered and you have to confront that you're lost. To make matters worse with all the frolicking you've had with your compliant compass it's now dark and the crocs are looking really peckish.

We all know intuitively that there's real danger in someone telling you everything's fine, you're a hundred percent right if you're not. As annoying and dispiriting as it might be to hear in the moment, it's far better to know that north is the opposite direction to where we thought it was when we set out for our morning stroll. It's better to know that we're a long way from home and will be hard to get back. It's better to know these things because that knowledge is a precondition to formulating a realistic plan to get on the right path.

I don't think anyone has ever mistaken the Australian Human Rights Commission for a compliant compass or QCOSS for that matter. Our independence and yours is crucial to the task we each share of promoting fairness and addressing disadvantage. For QCOSS this means being a leading force for social change to build social and economic wellbeing for all. Vitally QCOSS's leadership is inclusive that is you work with your members throughout Queensland to identify the systemic problems that contribute to poverty and disadvantage then you said about developing and implementing policy that will address these problems. Being an independent helps you, and for that matter us at the Commission, to be clear-eyed not beholden to the government and others we're trying to influence.

Then again independence doesn't mean being in constant disagreement with government. I think as Kate aptly put it we're each trusted advisers, our independence is crucial but also so is our capacity to find realistic practical solutions. To give an example we at the Commission find ourselves in agreement with the government on many of our greatest human rights challenges for example the need to address historic and ongoing inequality experienced by Aboriginal and Torres Strait Islander people, the importance of protecting the basic rights of especially vulnerable group, such as children, and the need to strike the right balance between competing rights.

Disagreement of course is most likely to occur on how best to address those issues but I think there's a real risk in over emphasising that disagreement, because it can blind us to the very real opportunities that exist to work cooperatively and to find practical compromise that allows incremental improvement in human rights protection.

As Human Rights Commissioner, I have to admit that sometimes I look around and feel daunted by some of the apparently intractable human rights problems that face us. Especially when it comes to issues in my bailiwick, such as refugees counter-terrorism and some indigenous issues. My wife pointed out the other day she saw this photo of me with our two-and-a-half-year-old son and our six-month-old son. The two-and-a-half-year-old was clearly, kind of you know, had this big smile as did that as a six-month-old and a two-and-a-half-year-old was kind of leaping around. And I was there, I thought I was smiling, but she said you know despite that smile I can see that the weight of the world's human rights problems are hanging heavily on you. Which, which, might be true but I think, I think, what we need to do especially those of us and that's probably everyone in this room who work on issues that feel big that feel difficult where we know that there are people out in our community who have great difficulty in enjoying their basic rights, we need to be looking for opportunities for change.

And so today I want to give what is essentially a hopeful message. Right now, we are on the cusp of some important presented to us remains open questions. But I'm convinced that those opportunities are there and we should grab them. In this connection, I want to talk about two quite different human rights issues, the first relates to reform of our marriage law and LGBTI issues of human rights, more broadly. And the second relates to how we treat people in detention.

So unless you've been living under a rock and I know that none of you have, two weeks ago you'll be aware we saw the results of the Australian Marriage Law postal survey. The results were historic and clear. 61.6 per cent of people said yes to the question should the law be changed to allow same-sex couples to marry. 38.4 per cent said no and just under 80 per cent of people who could participate did so. That was, give this precise number 12 million seven hundred and twenty-seven thousand nine hundred and twenty people. It's a really, really significant number. I was pleased by this result it makes it more likely that Australian law will be amended very soon to enable LGBTI people to marry.

The Commission's position on this issue is informed by our reading of international human rights law. We consider that it would enhance their quality to make civil marriage available without discrimination to all couples regardless of sex, sexual orientation, gender identity or intersex status. Now I emphasise the term civil marriage the corollary of this is that any bill to amend our marriage law should distinguish between civil and religious marriage. In order to protect freedom of religion, a religious Minister would be guided by their faith alone in determining whether, whether, to solemnise a marriage between two women or two men. In other words, no religious minister, that is no priest, rabbi, imam or other pastor would be required to solemnise a same-sex marriage if it contravened the religious ministers faith.

Then as that is precisely the position adopted in a major parliamentary inquiry on this issue early in the year. That report was unanimous and included members from all of the major political parties. The parliamentary committee essentially proposed that the approach that has existed in our law for over 30 years now since the Sex Discrimination Act was passed in 1984 which sets out important ways in which religious freedom is protected, that, that approach should apply to this new context of same-sex marriage.

But how we go about this reform is also important the Commission has always deposed resolving the marriage question by reference to a plebiscite or survey and it's important that this not be seen as a template for how we deal with other difficult human rights questions. Just this month the United Nations Human Rights Committee conducted its five-year review of Australia's human rights record under the International Covenant on Civil and Political Rights. The committee said, and I'm quoting, resort to public opinion polls to facilitate upholding human rights in general and equality and non-discrimination of minority groups in particular is not an acceptable decision-making method and such an approach risks further marginalising and stigmatising members of minority groups, end quote.

I've been thinking a lot about this over, over, the last few months initially the idea of putting this question to the Australian public I think gained a fair, fair ,degree of support. As someone who's not directly affected by this I was trying to think about how I would feel if something fundamental to me were put up for public vote. My background, my religious background, is largely Jewish and you may be aware that in Australia right up until the 1950s there was a quota in terms of how many Jewish people were allowed into Australia. It was a very specific number from time to time the government would change that number higher or lower but it was a very specific number there could be no more than that number in any given year. In the 1950s, that, that quota was abolished. But I've asked myself the question what would have happened if a condition was set that prior to considering whether to abolish that quota we had instead put to the Australian people the question, should the quota be abolished. Can't we all be confident that more than 50 per cent of the Australian population would have voted yes, I genuinely don't know. But I also know that what was very much still the immediate aftermath of the Holocaust simply asking that question and, then knowing, walking into a room imagine that the results have been the same as in respect of the marriage law postal survey just over 60 percent of people voting YES for change, imagine walking into a room of 10 people and thinking well yes six out the 10 people are pretty happy about me being here but four of the 10 probably aren't. Imagine how you would feel imagine the further marginalisation, the further stigmatisation you would feel if those sort of thoughts were playing around in your mind and there unresolvable.

And so, it is for precisely that reason that we have to find better ways of resolving difficult human rights questions and I'm not pretending for a moment that this was an easy or even remains an easy human rights question to resolve. There are many, many people of good faith who have a good heart I should say, as well as good faith, who have the opposite view to me on the question of marriage reform. And I fully respect that but I also want to urge that we not resolve these sorts of human rights questions in this way. So, I guess that raises the question how can we improve how we respond to other human rights issues that especially affect the LGBTI community?

Before I completely move off the topic of marriage I want to point out something that happened yesterday in Canberra that I suspect very few, if any, of you would be aware of. There are, they're, essentially two bills that are being considered in respect of marriage law. There is the main bill, which is commonly referred to as the Dean Smith Bill but it's been signed on now by lots of people of different parties, but there's also a more technical bill which is referred to as the consequential amendments. That technical bill has already passed the Senate and it contains a provision in that, that was, that was added at the last moment that essentially says that state and territory laws will not be affected by this in anyway, specifically in respect of identity documents.

Now this may seem like a really esoteric issue but can I say in all but two of Australia's jurisdictions, if you are, if you want to change the legal record of your sex or gender, if you're especially for a transgender or intersex and you want to identify not as male but as female or vice versa, then in most Australian jurisdictions you have to jump through two additional hoops than in most other countries that we would compare ourselves to simply don't exist. The first is that you cannot be married so that means that you would have to divorce and that a number of people have done that they're transgender want to change their legal record of their sex or gender under state law that means their birth certificate or their drivers license or so on, they have to do that. Which seems unnecessarily cruel this has been the subject of a major UN Human Rights court case, which, which has said that it's also discriminatory under international law. In addition to that there's a requirement that you also undergo gender reassignment surgery, major, major surgery. Again as a human rights lawyer I'd ask the question what is the mischief that we're really worried about here. Are we really genuinely worried that people will mischievously go out there wanting to change their gender on their birth certificate because there's so much advantage in doing that? And we have to make sure that they jump through those additional very high hoops. Now my point is the consequential amendments will preserve that position, it will mean that it will remain up to the states and territories as to whether or not they will change their law, if and when we have marriage equality in Australia. And that's a very peculiar outcome.

There are other issues as you I'm sure very well aware that may be just as important to the LGBTI community in terms of human rights that gain much less attention. I've just referred to one of those, those, ID document issues are among the most important issues to many transgender and intersex people. I've worked with lots of different communities over the years who've suffered human rights violations and it's a really dangerous thing to do what I'm about to do which is to compare, different, different groups. But I've got to say something which I know to be true, the people that I've come across who seem consistently most desperate, most worried about their loved ones are the parents of transgender children. What so many of those parents have said to me, independently of each other, is essentially the same thing and that is my biggest struggle and this is a struggle that I deal with on a daily basis is to stop my child killing themselves. The sort of prejudice that is infused in those sorts of requirements that I just referred to it's precisely the sort of prejudice that causes young LGBTI people, in particular, to have far higher rates of mental ill-health, far high rates of suicidal ideation, self-harm and worse. And so, what we need to do is calmly look at the evidence. We need to avoid really emotive rhetoric and we need to look at the basic human rights of some of our most vulnerable people and work out how best we can protect them.

So I've talked a bit about LGBTI issues affecting, sorry human rights issues affecting the LGBTI community. I want to talk about a completely different context now and that is another group, particularly vulnerable group, that is people in detention. The first question we have for us is how should we characterise Australia's detention system. We should start by understanding how people end up in detention in the first place, in other words, who do we lock up, why do we lock them up and for how long? There's a growing understanding that many of our policies at the front end of the justice system cause what is commonly referred to as over incarceration, that is we're locking too many people up especially for relatively minor offences. They're detained for too long and what that means is that opportunities for rehabilitation are missed.

There is an absolutely clear-cut correlation between high rates of detention and high levels of socio-economic disadvantage, not to mention intellectual disability, mental illness, and so on. And these things can't be ignored. Um, it was mentioned by Kate in the introduction that I used to work at the Public Interest Advocacy or PIAC. PIAC runs test cases in the human rights area, and I can't claim the credit of this, but but while I was there we had an incredibly high success rate and that was largely because of excellent lawyers that I was working with, fantastic barristers and so on.

But we didn't win every case and there are a few cases that's still really caught me, and, and here's one of them our client was a young woman by the name of Joanne Darcy. Joanne had an intellectual disability and questionably as a consequence of that she came, to use that euphemism, she came to the attention from time to time of the police. And, and, she was in respective fairly minor crimes, she stole a bicycle at one point that, that, sort of thing. Eventually she was charged with an offence and brought to court. And the court, in my view, gave the right answer they said, well, factually yes it seems very clear that she, she, did these things that she's been accused of but her intellectual disability is such that she shouldn't be held, criminally, criminally responsible in the ordinary way. So instead what the court orders ordered was that she be sent for psychological assessment. And that takes place in a mental-health facility which is called a forensic hospital, which is, which is essentially a secure unit, very much like a prison but that has also that therapeutic dimension to it.

So as I say she was sent to such a facility for psychological assessment. She was then held there for five and a half years but not days, not weeks, not months, five and a half years. Just imagine that but for a psychological assessment obviously much longer than if she'd been convicted of the criminal offence and then held in in jail. And she was eventually released and so this is a civil case that we were running largely with the view to prevent anybody else going through something like this and we lost. We lost at every stage. We lost right up until getting special leave in the High Court. And, and, and, the conclusion I would draw from that is that the law was against us and the law should change and that's that's essentially a question for another day. But my point though is that our law is calibrated in a way that often has a tendency towards incarcerating more people than we absolutely need to incarcerate and there is a cost to that. I don't mean a financial cost although clearly there is. But I also, what I really mean is a cost in terms of the basic dignity of the individuals who are incarcerated. And frankly even if you don't care about that, I know you will do, it also costs us as a community.

The policy settings in Australia that produced these results have been heavily influenced by the United States. But very interestingly over the last five to ten years US policymakers are starting to rethink and intriguingly some of the strongest push for change in this area isn't coming so much from the political left but rather from the political right. For example, conservative voices like Newt Gingrich have taken the lead in identifying the counterproductive impact of high incarceration and they're pushing to reverse the ever-increasing growth in the prison population. If we understand better what causes people to be sucked into the criminal justice vortex and we seek to address those causes we're much more likely to build a safe and more harmonious community.

We can see some green troops have change here in Australia, for example, the increasing application of justice reinvestment strategies that have the explicit goal of reducing incarceration are important. Logically changes like that will help us reduce the number of people we detained but I'm also realistic enough to accept that there's a strong abiding consensus that relatively large numbers of people will still be detained in Australia in places as diverse as prisons, youth detention centres, mental health facilities, immigration detention and elsewhere. So that means we also have to turn our attention to how we as a community treat people in places of detention.

In my view problems in how we treat detainees in Australia are rarely the result of a deliberate policy to do systemic harm. In the case of Joanne Darcy, that I mentioned before, I don't think that that anybody in the system, in adverted commas in the system, actually set out to do her harm. But a combination of the legislative and policy settings and perhaps a lack of creativity on all of our part meant that the outcome for problems in those policies and practices that govern who is incarcerated, what circumstances, for how long, and so on. I would say that they're inadequate those policies and practices in the sense that they don't do enough to protect the basic rights of people in detention.

Too often what this allows is small problems to be left unaddressed and then to fester. For example, we can see inadequate protections of vulnerable detainees, insufficient safeguards to protect against incorrect mistreatment by detention centre staff and practices that needlessly put detainees at risk. We're daily assaulted with bad stories about what happens in places of detention but as I said at the start I do want to offer some hope. And the hopeful part of what I want to say starts with the federal government's decision earlier this year to ratify and implement a treaty, that Kate referred to, the optional protocol to the Convention Against Torture, known as OPCAT. The government has stated several times as recently as last month that it's committed to taking the key legal step of ratification by the end of this year.

Now OPCAT is an unusual treaty in that it creates no new substantive rights, yet it could be the single most positive development in a generation in improving conditions in all Australian places of detention. Now why do I say that? Unusually, scrap what I just said then. Um from time to time at the UN there's a recognition that perhaps more practical work could be done than sometimes happens in places like Geneva and New York. And there was this recognition, a really exciting recognition, that the rules on how we treat people in places of detention are actually absolutely clear. Countries that sign up to the Convention Against Torture and the International Covenant on Civil and Political Rights and so on, they're not under any illusions about what obligations apply to them. And yet there was still at the time and remains today far too many instances of non-compliance with those obligations.

And so, what a number of countries at the UN – they had to go there to think about was, well, what can we do in a practical way to improve compliance? And that's how they came up with OPCAT. And so, as I say OPCAT doesn't create any new rights that, or obligations, so those are already clear, instead what OPCAT does is that it creates a regime of independent inspections of all places of detention for every country that signs up to, and ratifies and implements the treaty. And it creates that independent inspection at two levels - there's a UN body that will come from time to time to conduct inspections. But more importantly it also requires each country to set up its own independent regime of inspections. And it will literally include all places of detention.

What we've seen from other countries who have implemented, ratified and implemented OPCAT is that this can have a really positive effect because what it allows to happen is problems to be identified before they become grotesque. So, let me give the example of Don Dale, you all be well aware that just a week ago the reporting to the Northern Territory Royal Commission was made public. And that again as we all know was, was, prompted primarily by those horrifying images broadcast on the ABC from the Don Dale Youth Detention Centre. Particularly of Dylan Voller, and others, children who were being detained there in conditions that we would describe as a violation of Human Rights. Things like spit hoods being chained to chairs and so on.

Now I guess I posed the question what if Australia had ratified OPCAT some years ago? What would have been different? Well the first thing is you would have had an inspector go in there and they would have said to the detaining authority what on earth is going on? Why, why on earth are you putting spit hoods on children? Now the answer would have probably been quite interesting it's not as if that was a completely, kind of baseless, insane thing to do. What they would have said, I think, is, well, we need to stop the spread of disease, hepatitis, and various other conditions are a problem in all enclosed spaces, including prisons, detention centres, but also schools, and hospitals. And so we need to have an effective mechanism to stop the spread of disease. What the inspector then would have said is that's fine that's, that's all very well. I conduct lots of inspections to lots of different places of detention and I can tell you, you don't need spit hoods to achieve that. Here are half a dozen alternative ways to achieve that end without impinging so violently on the human rights of the children who are being held here.

And so what that would have given the opportunity for that authority to do is come up with a practical solution that met what, what, definitely there was definitely a legitimate aim in there somewhere that met that legitimate aim but did so in a way that was protective of the children's human rights. And, that, that is really, really crucial so that is the opportunity that we are presented with.

When, when he announced that Australia would ratify and implement OPCAT, the attorney-general George Brandis asked myself as Human Rights Commissioner to consult with people who have direct experience, especially from civil society, with a view to advising the government on how to make OPCAT work in a real really practical constructive way. So, we've, we've started that process we've consulted with some of the organisations in this room as well as throughout Australia. And we, we, put a very, very, brief interim report for the government to consider on that very small list of issues that they've identified need to be resolved prior to ratification. The bulk of this work will take place over 2018 after ratification takes place but will flesh out precisely how to make the most of what I think is a really important opportunity to improve conditions of detention.

The establishment of Australia's inspection regime will require careful planning and there's unquestionably a risk in all of this. If we talk about opportunities than the corollary of that is that you actually have to grasp those opportunities. And we've seen too many times especially in detention policy we as a country and I blame myself as much as, as, anybody else, we as a country have often failed to grasp those opportunities so what I'm urging, stroke, begging is that you participate particularly if you have experience in respect of people who are held in place of detention, as I say not just prisons but all forms of detention. That you participate in you are able to feed in your knowledge and expertise when we call for submissions and other input, in the second part of our, our, consultation process next year.

So to draw some of the strands together how can we contribute to and lead good social change? It starts in my view with being clear eyed. The compliant compass cannot lead itself much less anyone else because it has no idea which way is north. Knowing our principles, being guided by our principles, these have to be the touchstone. There's also nothing wrong and everything to gain with looking for common ground and being opportunistic in seizing a moment that may make good social change more feasible. We should do that. And I look forward to working with many of you to do just this in our shared work to address disadvantage and protect human rights. Thank you very much.

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