Without regulation, human rights become artificial

Angela had her rights from her stripped from her as she underwent compulsory mental health treatment. Kathy was coerced into buying funeral insurance that she didn't want. Bob continued to be abused in Oakden Aged Care facility, despite his family reporting it to health authorities. Eddie Betts and other Indigenous AFL players continue to dodge racist abuse and epithets. Women are controlled, rather than liberated, by a family court system that reinforces patriarchal relations.

In many cases these experiences reveal human rights breaches. They also reveal the failure of regulation.

In response to these and many other failures, governments call Royal Commissions and inquiries. Since 2013 there have been nine Royal Commissions at a Commonwealth level, with many more at State and Territory levels. While these processes can be worthwhile, they also cost taxpayers millions, extract trauma from communities who bare their souls, and can delay taking action now.

Invariably these Royal Commissions and inquiries – into mental health, disability, aged care, banking and financial services, institutional responses to child sex abuse and media diversity – highlight a central theme. The failing of regulatory oversight from institutions that were meant to protect the community.

In the Royal Commission into Victoria's Mental Health System, the final report stated:

'[I]t is difficult to see what actions are being taken to hold services to account for quality and safety or human rights failings.

The Royal Commission into Aged Care and Quality found that:

'There is a poor track record—in both home care and residential care— on enforcement, and a reactive approach to monitoring and compliance.'

It noted that only "lip service" was paid to the welfare of aged care residents by regulators. Justice Hayne made similar observations, who, in criticising under-enforcement and "light touch" regulation, found that banking and financial services regulators had failed to protect Australians. Justice Hayne had additional words to say about the window-dressing that was used by services to avoid accountability:

"Industry codes are expressed as promises made by industry participants. If industry codes are to be more than public relations puffs, the promises made must be made seriously."

Regulators – Ombudsman, human rights and equal opportunity Commissions, mental health, disability and aged care oversight agencies – and regulation have critical roles in society.

They keep our food and buildings safe, our loved ones cared for, and our systems fair. Regulators are usually unelected, but are granted enormous powers to apply the rules of fairness set out by Parliament. These are powers that can hold organisations accountable for endemic sexual harassment, breaches of human rights in mental health and disability settings, or to ask governments to account for new policies like Robo-debt.

[Check out my conversation with Professor Terry Carney on Robo-debt]

However too often we see these powers left un-used. This renders your human rights artificial.

Though regulation can be used for good, it can also be used for evil. In conversation with Wamba Wamba man and constitutional law expert, Eddie Synot, we discussed how First Nations are infantilised and denied self-determination through continued violence, dispossession, incarceration and removal. How the Australian Constitution and the broader socio-political constitution of the nation, with their basis in racist exclusion, and the lack of meaningful, institutional engagement with First Nations, have been enablers of structural racism and barriers to meaningful reform.

[Check out my conversation with Eddie Synott and the Victorian Aboriginal Legal Service]

This week we will hear the need for reforms such as a National Charter of Human Rights. I implore all of you to sign onto this call and share it with your family and friends.

But we also need a more sophisticated conversation about regulation and regulators. When laws are drafted, it is the regulators who become the administrators of justice. Their action or inaction has real impacts on our lives.

Let’s avoid the next round of Royal Commissions by asking our regulators to ensure that rules and community standards become reality.