Australia's reputation in human rights
Elizabeth Evatt
If we truly wanted to stem the flow of asylum seekers, says Elizabeth Evatt in this article, should we not think globally? Should we not think about what Australia could do to prevent human rights abuses in the countries of origin and how we could do more to ensure basic standards of living in those countries? If we were to do that, we might understand that the world needs to work towards an effective and meaningful international system of human rights and that this must be necessarily linked to a fair and equitable global economic and financial system.
Globalisation and human rights
'Globalisation' is a term which is almost certain to attract hostility from many, especially when associated with trade and commerce. The World Trade Organisation (WTO), as a symbol of all that is wrong with globalisation, is a body much loathed by protesters, because it is run by a club of well-to-do nations, who are in league with powerful multinationals, and because it can enforce its rules against the weak through sanctions.
And yet there are areas, such as human rights, where there is a real need for globalisation, in the sense of the effective application of common minimum standards of protection from abuse. A matter for real concern is that in the globalisation of trade and commerce, a low priority is given to the human rights of the millions who are forced to participate on the terms dictated to them. Human rights organisations have called for human rights principles to be built into international trading laws and into the obligations of the WTO and other such organisations. But their efforts have not yet succeeded.
The Australian government accepts the globalisation of trade, but does not see the need for connections between trade and human rights. A few years ago, the Australian government rejected the inclusion of a human rights clause in a trade and co-operation agreement with the European Union.1 This was only one example of its resistance to any form of international monitoring of Australia's human rights record. The government's attitude is that it does not want foreigners daring to criticise Australia's human rights record or telling this country what to do. In maintaining this attitude, Australia is in danger of losing its reputation for the good work it has done in the United Nations over many years to develop an international human rights system and, instead, of being seen to undermine that system.
Australia's commitment to global human rights
Australia played an active role in the founding of the United Nations and in setting up the international system of human rights. Australia gained a lot of respect for its commitment to the new organisation. One mark of that respect was the election of Dr HV Evatt as President of the General Assembly, a position he held when the Universal Declaration of Human Rights was adopted by that body in 1948.
Australia supported the UN human rights system actively, and in due course, after some delay, it ratified the six major UN human rights treaties:
The Convention on the Elimination of All forms of Racial Discrimination;2
The International Covenant on Economic, Social and Cultural Rights;3
The International Covenant on Civil and Political Rights(ICCPR);4
The Convention on the Elimination of All Forms of Discrimination Against Women;5
The Convention Against Torture;6
The Convention on the Rights of the Child.7
But, though Australia accepted the obligation to give effect to all the human rights standards in these instruments, it did not take the action necessary to make the rights fully effective in Australian law. Only in regard to racial discrimination and sex discrimination did it legislate extensively to implement its obligations.8
The Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Convention Against Torture have not been made directly enforceable by legislation, other than in some minor respects, even though the High Court has upheld the power of the Commonwealth to legislate to implement human rights treaties which have been ratified by the executive.9 This means that Australian courts cannot determine whether this country has complied with its international human rights obligations under the instruments or enforce the rights protected by the instruments in the absence of legislation.10 The Courts have tried to fill some gaps by applying the principle that, where possible, laws should be interpreted and developed consistently with our international treaty obligations. But this falls far short of full implementation. The proposals of the Constitutional Commission in 1988 for rights to be incorporated into the Constitution were not implemented, and attempts to introduce a Bill of Rights, based on the ICCPR failed.11
In 1995, in the Teoh case, the High Court decided that when Australia ratified the Convention on the Rights of the Child, this gave rise to a legitimate expectation on the part of people in this country that government decision-makers would exercise their discretion in matters affecting children in conformity with that Convention, even in the absence of legislation to give effect to it.12 The Convention requires that in all actions concerning children undertaken by administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.13 The Court referred for further consideration a deportation decision, because the decision maker had not taken into account as a primary consideration the interests of children affected by that decision, and had not notified the appellant of his intention not to do so.
The Labor government was appalled by the implication from the Teoh decision that government decisions might be challenged on the ground that they did not comply with treaty obligations which had not been implemented by legislation. It responded by asserting that entering into a treaty is no reason for raising any expectation that government decision-makers will act in accordance with the treaty, if the relevant provisions of that treaty have not been enacted into domestic Australian law. Legislation was introduced almost at once to overrule the High Court and to make it clear that no one should expect the government to honour treaty obligations in making administrative decisions (despite our international obligation to do so). The Bill tells the courts not to be concerned with whether or not Australia respects its human rights treaty obligations. It lapsed, and was revived by the present government. It was talked out by the Democrats in April 2001.14
The Teoh decision may remain applicable a little longer. But its effect is limited, and does not change the overall situation, which is that there are many human rights standards which are not directly enforceable in Australia. There is, however, a recourse for Australians who consider that their rights under human rights treaties have been violated. In the early 1990s, the Australian government ratified all the individual complaint procedures under the UN human rights instruments mentioned earlier.15 Since then, Australians can take their cases to the treaty bodies in Geneva which supervise those instruments.
At first this new opportunity looked promising. When, in 1994, the Human Rights Committee found that the Tasmanian anti-gay criminal laws violated Mr Toonen's right to privacy, the Commonwealth government responded by enacting the Human Rights (Sexual Conduct) Act 1994 to provide a specific remedy for arbitrary interference with the privacy of sexual conduct between consenting adults.16 So far, so good. But in recent times, the Australian government has radically changed its attitude towards the treaty bodies. In a statement to the United Nations in late 1999, Australia praised the contribution of the treaty bodies to the protection and promotion of human rights through their monitoring work.17 A few months later, however, Australia took actions which seemed to be aimed at undermining the treaty bodies, which seriously damaged Australia's human rights reputation, and set back the goal of an effective global system of human rights.
The treaty bodies view of Australia
The six treaty bodies are independent committees of experts, nominated and elected by the states which are parties, to monitor the compliance by with obligations under the treaties. They do this by considering reports from the states which are parties and drawing up their own observations on the level of compliance in that state. Where applicable, they can also consider individual complaints of violation of rights. The treaty body system is far from perfect, but with hard work and with support and co-operation from states, it could be made more effective.
The members of the treaty bodies bring considerable expertise and experience to their task. The members of the Human Rights Committee, for example, are mainly academic lawyers and judges. Because the treaty bodies deal with a large number of ratifying states, they are able to develop a global outlook on human rights issues. They have, over time, interpreted their instruments and defined more precisely the obligations of states. They are often critical of states which fail to meet their obligations. What have those bodies said about Australia, and what has been the government's response?
Australia's record in submitting reports to the treaty bodies has not been particularly good in recent years, but in 2000 four different committees considered reports from Australia: the Committee for the Elimination of all forms of Racial Discrimination (CERD), the Human Rights Committee, the Committee on Economic Social and Cultural Rights and the Committee Against Torture. There were areas of concern common to more than one committee.
One such concern was that many of the human rights which Australia has promised to implement cannot be effectively enforced in Australia, due to the lack of effective legal remedies under Australian law.18 The Human Rights Committee also took the view that the proposed legislation to overrule the Teoh decision would be incompatible with Australia's obligations under the Covenant. It urged the government to withdraw the Bill. The Government did not accept this criticism, but pressed on with the Bill.
Each of the treaty bodies also raised with Australia its concerns about the situation of indigenous people in this country, including: the lack of remedies for the stolen generations;19 the high level of discrimination, disadvantage exclusion and poverty experienced by indigenous people;20 the limited role of indigenous people in decision-making over their traditional lands and natural resources;21 the lack of effective protection of Aboriginal heritage and traditional activities;22 and the disproportionate effects of mandatory imprisonment in Western Australia and the Northern Territory.23
Nor did the treatment of asylum seekers by Australia escape attention. The Human Rights Committee had determined in the A case, dealt with in 1997, that the prolonged detention of asylum seekers required by law was arbitrary, and that it contravened Australia's obligations under the Covenant. The government had rejected the Committee's views in the A case, on the basis that those views were not legally binding, and that, in any event, the government did not agree with the Committee's conclusions.24 When Australia's report under the Covenant was considered in 2000, the Human Rights Committee said that Australia had undermined the communications process by rejecting the Committee's views in the case; it urged reconsideration of the policy of mandatory detention of "unlawful non-citizens".25
The government still prefers its own view to that of the Human Rights Committee. The end result is that the Australian government has chosen to ignore or reject the views of the international body whose competence it has recognised to determine whether there has been a violation of human rights. This leaves many of the rights Australia has undertaken to respect without effective protection. A glaring example arises under the Torture Convention, which protects a person from being deported to a country where that the person would be at risk of torture.26 It is left to the decision of the Minister whether there is such a risk without recourse to an Australian court.27 While it is possible to take a case to the Committee Against Torture in Geneva, that will be of little value if the government considers itself free to ignore the views of the Committee. The democratic process could step in to defend rights which are at risk. But that process is not well suited to defending the rights of unpopular groups or minority interests.
Australia falls out with the treaty bodies
Not content with rejecting the views of the treaty bodies, the Australian government has sought to justify its position by denigrating those bodies, by questioning their integrity, and by limiting its co-operation with them.
The trigger to this approach appears to have been the displeasure of the government at the criticisms of Australia made by the Committee on Racial Discrimination (CERD) in March 2000. These criticisms related mainly to the Wik amendments to the Native Title Act. After its encounter with CERD, the government issued a statement condemning the Committee, and announced that it would reassess its relationship with the treaty bodies. A somewhat secretive process of inquiry resulted in the publication, in August 2000, of a statement by the Australian government. The effect of this was that the government would intensify its current efforts to reform the treaty committee system and that it would adopt a more "robust and strategic approach" to its interaction with the treaty bodies, in accordance with a four point plan. The four point plan covered limitations on participation in the reporting process and on visits to Australia by UN human rights mechanisms, the removal of unsuccessful Asylum seekers from Australia, and the refusal to sign or ratify the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), under which a new complaints procedure is established.
The details of the four point plan need not be gone into in detail here; it has been refuted in detail elsewhere. The important point is that the government tried to justify its actions in regard to the treaty bodies by making a number of misleading statements about those bodies, their functions and membership. It tried to deflect attention from the considered views expressed by the treaty bodies about human rights issues in Australia by focussing attention on the procedural and practical difficulties faced by those bodies. No doubt, with more time and more resources, the treaty bodies could do their work more efficiently, and with fewer delays. Their practical difficulties are real enough, but they bear little relationship to the substantive issues of compliance by Australia. The lack of resources, which contributes to delays, cannot be a reason for Australia failing to give serious consideration to the committees' opinions or failing to review the incompatibilities with treaty obligations of our domestic laws and practices when this has been pointed out by the expert body.
On 5 April 2000, the government announced further plans "to improve the effectiveness of the United Nations Treaty Committee system". Some of its proposals are aimed at reducing or streamlining the burden of work of the committees. It also wants more Australian involvement in the treaty bodies and on the Commission on Human Rights. No objections can be raised to these practical suggestions. They are in keeping with the efforts of the treaty bodies to improve their work and to secure more resources. But there are some significant contradictions in the government's attitude. Why should it be interested in improving procedures, reducing delays, etc, while it steadfastly refuses to accept the views of the treaty bodies? Why does the Australian government assert that its aim is to secure ratification of the human rights treaties by all countries in this region if the system is as deeply flawed as it has claimed? How will ratification help to improve the human rights situation in those countries, if they follow Australia's example of ignoring the views of the treaty bodies?
Australia's current position appears to be that it is a matter for the Australian government alone to determine whether or not it has complied with its human rights treaty obligations. In taking this attitude, and in promoting the idea that the international monitoring system is flawed, the government is discounting the role of the independent treaty bodies in interpreting the provisions of human rights treaties, and undermining the whole concept of an international system of human rights, under which states are accountable for their actions. The government's rejection of international human rights scrutiny and its limitations on co-operation with treaty bodies drew some flack from Amnesty International. The government rejected the Amnesty report. Once more, it is a case of 'everyone is out of step but our Johnny'.
Australia's reputation as a good international citizen has been badly dented by these events. I learned that at the diplomatic level there had been a certain loss of confidence in Australia because its criticisms of the treaty bodies seemed to have arisen because its own record had been criticised.
Tests of Australia's intentions
Can Australia pull back from this extremely negative approach to the international human rights system? Several issues which will come up for decision in the near future may provide a litmus test of the government's intentions and good faith in these matters. A useful step was the agreement by the Australian government to host a mission to this country by the UN Special Rapporteur on Racism in April-May 2001.28 More difficult tests are on the way.
An important issue, due to be decided soon, is Australia's support for the International Criminal Court (ICC). This is a permanent court, which will have jurisdiction over crimes of genocide, war crimes, and crimes against humanity. The ICC will come into force when 60 states have ratified the Statute. Australia took a major part in the drafting of the Statute, and the Minister for Foreign Affairs and the Attorney-General have expressed their commitment to it. (The strong and positive support given by the Ministers to the ICC is, incidentally, in stark contrast to their attitude to the treaty bodies). But since the ICC issue was referred to a parliamentary committee, the backwoodsmen, and lobby groups, such as the National Civic Council, have come out in opposition to ratification, raising false claims that the court is a threat to Austrlia's sovereignty and that its jurisdiction is threatening to us. A test of the government's resolve will be whether it does in fact ratify the ICC statute.
Another test arises in relation to Genocide. Australia is a party to the Genocide Convention, but has not made its provisions enforceable in Australia. Genocide is not, as such, a crime under Australian law. Many reports have recommended legislation to rectify this omission, and there has been a Bill pending for some time. Will the Government allow this Bill to proceed?
Yet another issue is whether Australia will ratify the two new Optional Protocols to the Convention on the Rights of the Child, one on Sale of Children, Child Prostitution and Child Pornography (aimed at the sexual exploitation of children), and one on the Involvement of Children in Armed Conflict (raising the age for recruitment and participation in armed conflict).29 Australia has always supported these protocols, but will the government now use the excuse that the treaty system is in need of reform to avoid ratification?
The government has announced that it will not ratify the new Optional Protocol to the Women's Convention, under which a complaints procedure is established. Bangladesh, Thailand and New Zealand are already parties to this instrument, along with 21 other countries. The Protocol came into force in December 2000. Mr Downer said recently that Australia would not ratify the Protocol "because it would send a mixed message." The present message seems to be 'it is OK for others to ratify, but not for us'. The Minister said that Australia's own procedures were adequate. If so, ratification could do no harm. The government's objections to ratification may be connected with its intention to amend the Sex Discrimination Act to allow States and Territories to legislate to deny access to certain fertility services to women who are not married; this depends on the outcome of a High Court case.30 Such restrictions could be found incompatible with the Women's Convention, and could thus be the subject of a complaint to CEDAW, if Australia were a party to the Protocol. Whatever the outcome of that case, there will inevitably be situations where the non-ratification of the Optional Protocol will preclude Australian women from seeking international recourse to test issues of discrimination.
Taking a global view
The 'tests' outlined above each involve an attempt to establish global human rights standards and to make them effective in all countries. They are all expressions of the goal of the international human rights movement, to ensure that people everywhere enjoy agreed minimum standards of rights. Whether or not Australia passes the tests, there remain some underlying questions about Australia's negative approach to the domestic application of international human rights standards. Is it part of an inability to step outside our parochial concerns and to see the human rights issues which confront us in global terms.
If we were to do so, we might see more clearly that most Australians enjoy prosperity as the beneficiaries of serious wrongs and injustices inflicted on indigenous people and that the effects of those wrongs and injustices continue to touch the lives of all Australians. We are shamed internationally by our treatment and the conditions of indigenous people and by the official refusal to accept and to deal with the wrongs that have been done. It is time to see ourselves as others see us.
We might, if we stepped outside, better understand that, while the settled population of Australia came here to find a better life, without regard for the rights of indigenous people, current policies seem based on preventing or strictly limiting access to Australia by others who are also seeking a better life. By focussing on building walls, we are failing to see that most of the so-called 'unlawful non-citizens' who are subjected to such severe treatment have gone through many hardships to get here because of oppression, persecution or harsh living conditions.
If we truly wanted to stem the flow of asylum seekers, should we not think globally? Should we not think about what Australia could do to prevent human rights abuses in the countries of origin and how we could do more to ensure basic standards of living in those countries? If we were to do that, we might understand that the world needs to work towards an effective and meaningful international system of human rights and that this must be necessarily linked to a fair and equitable global economic and financial system.
That may be just a distant dream. But in the foreground there is a developing global system of human rights. It is far from perfect. Its mechanisms need better resources and continuing reform. But its aims will, in my view, be better served by engaging with it constructively, rather than turning away and sniping from a distance. Australia could, if it dared, take a leading role in this and help to restore its tarnished image.
Elizabeth Evatt, AC, was Deputy President of the Australian Industrial Relations Commission (1973-76), the first Chief Justice of the Family Court of Australia (1976-1988), and President of the Law Reform Commission of Australia (1988-1994). She was a member of the United Nations Committee on the Elimination of All Forms of Discrimination Against Women (1984-92), serving as Chair of the Committee from 1989 to 1991, and she served on the United Nations Human Rights Committee from 1993 to 2000. A niece of Dr H V Evatt, Elizabeth was Vice-President of the Evatt Foundation from 1982 to 1987, is a Life Member of the Foundation, and is currently a judge of the World Bank Administrative Tribunal and a Visiting Professor at the University of New South Wales.
Notes
1. Later, in June 1997 Australia signed a Joint Declaration on Relations Between the European Union and Australia. 2. Adopted 1965 (in force 1969), Australia ratified in 1975. 3. Adopted 1966 (in force, also for Australia, 1976). 4. Adopted 1966 (in force 1976), Australia ratified in 1980. 5. Adopted 1979 (in force 1981), Australia ratified in 1983. 6. Adopted 1984 (in force 1987), Australia ratified in 1989. 7. Adopted 1989 (in force 1990), Australia ratified in 1990. 8. The Racial Discrimination Act 1975 and the Sex Discrimination Act 1984. 9. Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 46 ALR 625. 10. See observations of Mason CJ And McHugh J in Dietrich v the Queen (1993) 67 ALJR 1 at 6. 11. A referendum covering some minor aspects of the proposals was defeated in 1988. 12. Minister for Immigration and Ethnic Affairs v Ah Hin Teoh, 1995 69 ALJR 423. 13. Article 3 (1). 14. The Administrative Decisions (Effects of International Instruments) Bill 1999 was talked out on April 5 2001. 15. Those with complaint procedures include CERD, the ICCPR and CAT; CEDAW has a new complaints procedure, but Australia will not ratify this. 16. Toonen v Australia, 488/1992, March 1994, HRC Report, 1994 vol II. 17. Statement to UNGA's third committee on 3 November 1999 on treaty body reform. 18. Concluding Observations on Australia, July 2000, HRC Report for 2000, A/55/40, 514, 515; Concluding Observations of the Committee on Economic, Social and Cultural Rights (CESCR) on Australia. 01/09/2000. E/C.12/1/Add.50. 19. Concluding Observations by the CESCR on Australia, 24 March 2000, CERD/C/56/Misc.42/rev.3; Concluding Observations on Australia, July 2000, HRC Report for 2000, 512, 513. 20. Concluding Observations by the Committee on the Elimination of Racial Discrimination (CERD) on Australia, 24 March 2000, CERD/C/56/Misc.42/rev.3. 21. Concluding Observations of the CESCR on Australia. 01/09/2000. E/C.12/1/Add.50; HRC, Concluding Observations on Australia, July 2000, Report for 2000, A/55/40, 508-511. 22. Concluding Observations on Australia, July 2000, HRC, Report for 2000, A/55/40, ¤¤510,511. Concluding Observations of the CESCR, Australia. 01/09/2000. E/C.12/1/Add.50. 23. HRC, Concluding Observations on Australia, July 2000, 522, 523. Concluding Observations by CERD on Australia, 24 March 2000, CERD/C/56/Misc.42/rev.3. Conclusions and Recommendations of the Committee against Torture on Australia, 21 November 2000. 24. A v Australia 560/1993, decided April 1997. 25. Concluding Observations on Australia, July 2000, HRC Report for 2000, A/55/40, 520, 521; referring to Communication No. 560/1993 (A. v. Australia). 26. Sadiq Shek Elmi v: Australia, Communication No 120/1998, 25/05/99, CAT/C/22/D/120/1998. 27. CAT recommended that there be effective remedies for violations of rights, including independent review of ministerial decisions under article 3 of the Convention (non-refoulement), Conclusions and Recommendations of CAT on Australia, 21 November 2000, para 7 (b). 28. An earlier mission had been cancelled. For the 2001 visit see E/CN.4/2000/16, 10 February 2000. 29. The Protocols were adopted by the General Assembly on 25 May 2000. 30. McBain v the State of Victoria. This case tests whether Victorian laws restricting access to fertility treatments are compatible with the Sex Discrimination Act. If the High Court finds that they are incompatible, the government plans to amend the Sex Discrimination Act, to allow states to restrict access to fertility treatments for single and lesbian women.