Why federal human rights don’t ‘entrench racism’
By Dr Kristine Klugman, President of Civil Liberties Australia
Rebuttal of Quadrant article: Entrenching Racism as a Human Right, authored by Augusto Zimmermann and Gabriel Moens 17 April 2024
To these authors, the status quo is too avant garde.
Their attitude to progress in social policies is best reflected in the moaning predictions of Hanrahran – “We’ll all be rooned.”*
They view any change in the social order as a threat to their own positions of privilege as old white men. They fear losing prestige and power. Their dread is unfounded.
They launch into a broadside attack on the Australian Human Rights Commission report Free + Equal, citing it’s “uncritical approval of UNDRIP” and state that the effect would be “to accelerate the entrenchment of racism as official government policy in Australia”.
The United Nations Declaration of the Rights of Indigenous Peoples is an assurance of Indigenous People’s rights to self-determination, participation in decision making affecting them, respect and protection of culture and equality, and non-discrimination. It was formally endorsed by Australia in 2009.
In view of the vast evidence of Indigenous disadvantage in Australia (in health, education, housing, justice) it is hard to comprehend how any person of conscience could not support UNDRIP principles…as do all the like-minded countries with whom we compare ourselves.
But the authors assert that “disparate impact” results in the appointment to positions not on ability but on race: Aboriginals and non-Aboriginals are judged by different standards (seemingly because they are the experts in their own culture which one would think was similar to appointing academics to learned university boards).
In fact, race is only ever one of the variables taken into consideration by most organisations. To do otherwise is counter to their organisation’s best interests and successful operation.
‘Collective madness’?
The authors contend that positive discrimination for Indigenous people demonstrates a “collective madness which eviscerates the principle of political equality and the promise of a colour blind society”. Nowhere in the national Human Rights Act (HRA) debate is a promise for a colour blind society made, whatever that is.
Perhaps it is code for a “wilful blindness” and emanating from the privilege-based, dominant cohort of the super-educated and super-rich that the WA-based ‘Writers of Righteousness’ represent.
Further, it is a gigantic leap of logic to state: “It is easy to conclude that Australia has become a race fixated society which seeks the eradication of traditional notions of merit and excellence”. In which parallel universe are most Indigenous peoples equal? In which universe are academics not recipients of enormous privilege?
The authors argue that proportional diversity and meritocracy are mutually exclusive, which for a publication which claims intellectual status is an extremely simplistic argument.
Rich get rights; poor get cells
They argue that: “The elevation of group rights at the expense of individual rights demeans the democratic principle of equality before the law and the concept of inalienable rights of the individual”. This assumes that there is currently equality before the law, which is blatantly untrue. Just count the number of Aboriginal deaths in custody or suicides in the ‘care’ of the state – WA in particular – to rank inequality in Australia.
The author’s ivory tower viewpoint flies in the face of the entrenched inequality in our society, based on privilege, inheritance, class…and simply money. Rich people employ expensive lawyers for their defence: the poor end up in jail, especially if they are Indigenous.
Quadrant then revives the tired old argument of a small unelected elite determining a whole hierarchy of human rights and interests. “Judges would exercise quasi-legislative powers, a development abrogating the separation of powers principle”. BUT courts evaluate questions of legislated policy every day: it is what they do, that is the job of judges.
The authors concede that the “proportionality test” can be applied, but assert it is meaningless because it can be manipulated, which displays very little trust in the integrity of judges. This is surprising, given their legal backgrounds.
A Human Rights Act would, they claim, encourage speculative legal action, but this is NOT the experience in those jurisdictions which have HRAs in Australia collectively now for more than 40 years. The existing state and territory HRAs operate under the dialogue model. If there is doubt, the parliaments have the final say over the courts.
Would a federal HRA have serious implications for the federal system, as they assert? Currently state and federal laws coexist quite comfortably, and there is no expectation that a federal HRA and state HRAs could not operate in tandem.
Be awake to ‘woke’
Finally, the authors twice use the word beloved of and used exclusively by the conservative right: WOKE. It is instructive to look up the actual meaning of the word.
Woke is an adjective derived from African-American Vernacular English meaning “alert to racial prejudice and discrimination”. Beginning in the 2010s, it came to encompass a broader awareness of social inequalities such as racial injustice, sexism, and denial of LGBT rights. Wikipedia
The Oxford English Dictionary defines it as follows: woke, adjective: Originally: well-informed, up-to-date. Now chiefly: alert to racial or social discrimination or injustice.
So why is Quadrant so critical of Woke? To these authors, Woke means Nope!
Australia’s major problem is the anchor of negativity, with predictions of calamity, as demonstrated by these authors. Here is another instance of those claiming to support individual rights who would negate individual rights in law through HRAs for ordinary Australians.
In fact, a federal HRA which incorporates the No Rights Without Remedy provisions for complaints handling would provide an avenue through which inequalities in our society and individual rights could be addressed.
We could have a society which truly gives everyone a fair go.
Dr Kristine Klugman OAM
President, Civil Liberties Australia
www.cla.asn.au
* Said Hanahran, by Australian bush poet John O’Brien, the pen name of Roman Catholic priest Patrick Joseph Hartigan 1919
Dr Klugman has a BA in History, an MA in Community Studies and a PhD in Politics, gained after first becoming a double-certificated nurse. She was instrumental in women having the opportunity to become firefighters in NSW, and has led and founded museums. https://en.wikipedia.org/wiki/Kristine_Klugman