肯尼迪讲稿Human Rights and Family Planning Workshop_肯尼迪演就职讲稿

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China Australia Human Rights Technical Cooperation Program

Human Rights and Family Planning Workshop

Kunming 28 – 31 March 2007

Human Rights, Gender Equality and Reproductive Health

Distinguished guests, ladies and gentlemen.It is a pleasure to have the opportunity to addre today a group of people who are working in an area that holds a great deal of potential to promote and protect the rights of a significant part of the population.Human rights have a long tradition.They are neither western nor recent in origin.While some of the language we use to describe and debate human rights might seem new, the fact is that the concepts that underlie human rights are to be found in all cultures and throughout history.Concern for the welfare of society and of individuals is to be found throughout the short history of my country, throughout the long history of your country and in fact throughout the history of all cultures and civilizations.The term “Human Rights” encompaes a disparate group of rights and freedoms.While there is disagreement about whether some rights should be included as human rights, there is no disagreement about the broad body of rights and freedoms which every society strives to respect and which form the basis for people’s enjoyment of a life based on the centrality of human dignity.Human rights have three fundamental characteristics:(i)first, that they are inherent, in the sense that they are the birthright of all humans – people enjoy these rights simply because they are human, these right cannot be granted or bestowed by governments or any authority because they are already inherent;(ii)(iii)second, they are inalienable, they cannot be removed and people cannot agree to give them up;and third, they are universal, they do not apply only to men, or only to citizens, or only to certain ethnic groups, they belong to all persons regardle of nationality or sex, status or race.These three characteristics represent the fundamental belief that underlies human rights.And we can talk at length about this fundamental belief, we can theorise and debate, but doing so will not lead to any result unle we link our discuion with action.And actually acting to ensure that rights are fully protected is much harder than talking about the theory of human rights.To quote Australia’s Foreign Minister:

So talking about human rights is one thing, acting to protect them is another.Today we will talk about them for a bit, but I hope that most of our discuion will not be about human rights theories, but mostly about practical matters – about practical ways in which your work can help to ensure that the rights of the people you serve are fully respected.And after this workshop is over it will be up to you to take the action neceary to ensure that whatever practical measures are discued are put into practice.Our modern conception of human rights can be traced to the Universal Declaration of Human Rights which dates from 1948.This declaration was not meant to be a legally binding document but rather a statement of principles.However it has enormous moral force and today all nations endorse the principals that are laid out in that declaration.The UDHR led to the creation of six major multilateral human rights treaties.The most important of these are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.China has signed both of these treaties.It has ratified the treaty protecting economic, social and cultural rights and is currently working towards ratifying the treaty protecting civil and political rights.What this means is that as a nation China has committed itself to take measures to ensure that the human rights described in those treaties are fully respected.“It is only through the pursuit of practical and effective efforts that we show our real commitment to the welfare of individuals and society” Those of us who work in the international area know that some nations sign treaties with no intention of actually carrying them out.This is not the case with China.We know that China will only make an international commitment if it has the intention of carrying out that commitment.So when China signed the multilateral treaties that guarantee the promotion and protection of human rights we knew that China would be taking all the action neceary to carry out the commitments that are contained within those treaties.When Australia ratified these treaties it created a body whose purpose was to make certain that the treaties were fully honoured.That body, called the Human Rights Commiion, started its work in 1981.It was intended that the Human Rights Commiion would only exist for five years and that by 1986 all of the measures neceary for the promotion and protection of human rights in Australia would be in place and that from that point no further action on the part of government would be neceary.But by 1986 it had become clear that the protection of human rights is not something that you do once and can then forget about.In fact ensuring the ongoing protection of human rights is no different to anything else.The reality is that in order to promote and protect human rights we have to be continually active.We have to incorporate specific measures into our work so that in everything we do we pay attention to the rights of individuals and of society.So because the protection of human rights is an ongoing task, and one that can never be finished or completed, in 1986 the Australian Human Rights and Equal Opportunity Commiion was created as a permanent body responsible for ensuring that human rights are promoted and protected in Australia.The work of the Human Rights Commiion includes:

-human rights education and promotion, which includes embedding human rights education into school and university courses, working with private employers and government;monitoring the actions of government to ensure that all branches of government fully honour Australia’s commitment and reporting to government and to the public;-

This workshop is focusing on a number of those rights.I was asked to speak about the right to privacy and while I am by no means an expert on the right to privacy I can at least tell you about Australia’s experience in attempting to respect people’s right to privacy.The Universal Declaration of Human Rights – the international statement that I mentioned a moment ago states, in Article 12, that people have a right to “freedom from arbitrary interference with privacy, family, home and correspondence.” This right is endorsed in Article 17 of the International Covenant on Civil and Political Rights.The Constitution of China was amended in 2004 to make it clear that the Chinese State “respects and promotes human rights” while Article 40 of the Constitution provides for a right to privacy.Thus freedom from arbitrary interference with privacy is a human right that is acknowledged by the international community generally and by Australia and China specifically.Of course it is easy for countries to say that they respect the right to privacy.But that is not enough.In order to ensure that people can enjoy their right to privacy, some action must be taken.In Australia the Privacy Act, a law of the federal government, was paed in 1988.This comprehensive law covers the collection and use of private information both by the right to life, liberty and security;the right to health, reproductive health and family planning;the right to decide the number and spacing of one’s children;the right to consent to marriage and to equality in marriage;the right to privacy;and, the right to be free of discrimination.the State and by private organisations.It creates the office of the Privacy Commiioner as an independent body responsible for administering the law.The Privacy Commiioner carries out his functions in ways similar to by agency, the Human Rights Commiion and in fact the Privacy Commiioner and the Human Rights Commiioner share office space and support staff.There are eleven principles contained within the Privacy Act.These principles are intended to give practical substance to the law.The principles are:(1)Personal information should not be collected except for a lawful purpose that is within the area of responsibility of the body collecting the information(2)(3)A person from whom information is collected must be advised of the purpose for which the information is collected and how it will be used Only information that is relevant to the purpose should be collected, the information should be up to date and complete and the collection of the information should not intrude unreasonably on personal affairs;(4)(5)Personal information must be stored securely to prevent unauthorised acce or use;Bodies that hold personal information must keep a record of the nature of the information, the reasons for keeping it and how persons may gain acce to the information;(6)(7)(8)(9)(10)(11)Persons have the right to acce any personal information kept on them;Persons have the right to correct information held about them;Bodies that hold personal information must make every effort to ensure that the information is accurate and up to date;Information may only be used for the purpose for which the information is relevant;Information may only be used for the purpose for which it was gathered(except in defined circumstances – for instance to prevent a crime)Information shall not be disclosed to other bodies(except in defined circumstances – for instance to prevent a crime)The enforcement of these principles follows a pattern that is common in Australia(where we seek to avoid force or compulsion):

(i)In the first instance organisations are expected to follow the principles.The Privacy Commiion provides information and education to aist health care providers fulfil their obligations;(ii)(iii)If a person believes that an organisation has failed to follow the principles, they may complain to the Privacy Commiioner;The Privacy Commiion will then seek to conciliate the complaint, working with both the complainant and the organisation to try to achieve a solution for the particular complaint and any changes to the organisation that may be neceary to ensure that there are no further complaints;(iv)Most complaints are succefully conciliated but if no agreement can be reached the Privacy Commiion will iue a determination, which instructs the parties on the measures they must take;(v)Finally, if the determination is not followed, the Privacy Commiioner may seek to have in enforced by the Federal Court.The Court will compel the parties to take the neceary action.One of the areas in which the privacy principles have proven to be most used is in health care.The law creates the general right for patients to examine their own health records and to be informed about their health care provider’s policy for handling personal information.The Privacy Act applies to “personal information”, which means information about a person who can be identified.It therefore does not apply to statistical information.In the case of health care providers the Act covers a wide range of service providers.These include doctors, pharmacists, dentists, chiropractors, physiotherapists, counsellors, social workers, nurses and psychologists.In fact it covers most people and organisations which might seek to collect “health information”.Health information includes all information or opinions about a person’s health or disability, whether in the past, the present or the future.It also includes personal information collected when receiving a health service.This includes:--

The Act covers information held in different forms including electronic, paper, Xrays, CT scans, photos and audio records.Generally, when a health care provider gathers information, it must obtain the consent of the person.That consent must be what is called, in legal terms, “informed consent”.This means that the health care provider must tell the patient how the information will be used and why it is being collected.Health information may be shared between health care providers, but this may only be done in ways that the patient may reasonably expect.For example if a patient agree to have a blood test your doctor will need to tell the pathologist doing the analysis about the patient’s relevant health details.The health care provider is required to tell the patient in general terms how the information will be shared.A patient can also request acce to his health records.In other words the patient can see what information has been collected about his health and about his health care.The patient can also ask to have the information corrected if it is wrong or if it is out of date.A difficult question is the age at which a person can exercise their privacy choices.This is a particular iue in Australia in relation to young people not wanting their symptoms described by the patient prescriptions billing details pathology reports dental records admiion and discharge information genetic information other sensitive information, such as race, sexuality or religion parents to know details of their health or health care.Although in general the age of majority in Australia is 18, the Privacy Act does not set an age.The general principal is that a person is able to exercise their right to privacy when they reach an age when they are able to understand and make their own decisions.For many people this point is reached when they are younger than 18.The health care sector is both easier and more difficult than other sectors when it comes to promoting and protecting people’s right to privacy.It is easier because the health care sector already has strong protections through the profeional and ethical codes of practice that have been followed by medical practitioners for many years.While these Codes of Practice do not have the force of law, their moral authority is very great and profeional medical practitioners tend to take them very seriously.Some of these Codes of Practice already apply stronger privacy protections than contained in the Privacy Act, although none provide patients with a general right of acce to their health records.On the other hand it is more difficult because effective health care often involves many individuals and organisations with particular specialties and the sharing of information is vital to the delivery of high quality health care.While the law provides that it is legal for health care providers to share information, they can only share information that is relevant to the treatment of the patient.Of course what is relevant is a matter of judgement.I think that many of you will realise that protecting people’s right to privacy, particularly in relation to health care(and perhaps even more so in relation to reproductive health)is not necearily an easy task.But it is important enough for it be mentioned in China’s constitution and important enough for both of our countries to sign treaties acknowledging that they will take the steps neceary to protect the right to privacy.Moreover it is important enough that both of our countries have paed laws protecting privacy.I have described some of the provisions of Australia’s Privacy Act.But it is useful to keep in mind that China also seeks to protect the right to privacy through its legal system.For instance Article 42 of the Law on Protection the Rights and Interests of Women specifically guarantees privacy.And Article 22 of the Law on Licensed Doctors, stated that all doctors are required to be:

So clearly, for both of our countries the protection of privacy in health care as in other aspects of human life is of importance.And I think it is equally clear that right to privacy will not be protected simply because we want it to be protected.We must take some action.The steps that Australia has followed have been:

(i)(ii)(iii)acceding to the UDHR and signing and ratifying the ICCPR, the international treaty that guarantees the right to privacy;creating a legal structure that makes the right legally enforceable educating health care providers and the general public as to their duties and their responsibilities and the nature of the right to privacy;(iv)(v)(vi)

This system has been in operation for a little le than 20 years now.Although I think that there are still complaints and there are new and novel iues that arise regularly, it seems fair to say that the system has gone a long way to protect people’s right to privacy, both in the health care sector and more generally in the community.But at the same time I think it is clear that the protection of people’s rights is not something that we can do once and then forget about.It needs to be an inherent part of the work of us all, now and in the future.preparing guidelines to aist people to aert their rights and health care providers to protect those rights;creating a complaint managements system aimed at conciliation and problem solving;and providing recourse to the courts for enforced settlement should all other attempts at settlement fail.“caring for, loving and respecting of their patients and preserving their privacy”