Australia and Human Rights

Repairing our reputation on human rights - ABC News (Australian Broadcasting Corporation)

For many years Australia was an enthusiastic supporter and participant in the human rights work of the UN. It ratified all the main instruments and protocols in the period of the 1970s to the early 1990s, but limited its implementing legislation mainly to the field of discrimination. It was represented on several of the treaty bodies, which monitor compliance with the covenants and conventions.

But in the mid 1990s, the halo fell off. Australia made a strong and misdirected attack on the treaty body system, criticised the members of the treaty bodies, disregarded their recommendations and views and embarked on a project to change the way they operated. It failed to ratify new instruments such as the Protocols to the Torture Convention and to CEDAW. Worse than that, the Australian government voted against the adoption by the UN General Assembly of the Declaration on the Rights of Indigenous Peoples in 2007.

In keeping with its generally negative approach to human rights, Australia also failed to react to the many violations of rights involved in the Guantanamo Bay detentions, the ill treatment of detainees and the renditions by the US Government. It allowed the rights of an Australian citizen to be trampled on without protest.

People in the human rights community were asking questions - what has happened to Australia? How can other states be called on to respect the human rights system if a country like Australia turns its back?

Australia is now in the process of reversing its negative attitude towards the UN human rights system. It is preparing to ratify outstanding instruments, and has extended an open invitation to the special procedures of the Human Rights Council to visit Australia. It is considering how best to make clear in the UN system its support for the Declaration on the Rights of Indigenous Peoples, despite the earlier adverse vote.

This renewed commitment to the UN human rights system is welcome. It will help to overcome the damage to our international standing, and we may once again be seen as a good international citizen.

Our own house in order

There is a caveat, however. Commitment to the international system of human rights is incomplete if it is not matched by implementation at home. Our exhortations on human rights can justifiably be ignored by other states if we have not put our own house in order. After all, the ultimate end of the UDHR is that rights be enjoyed by everyone, everywhere.

Australia had argued at the beginning of the declaration project that to be effective, rights should be legally binding and enforceable. The international human rights system is still struggling with this issue. The principle that rights be legally effective is event more relevant at the domestic level. But somewhere down the track, Australia has lost sight of this idea, despite its ratification of the ICCPR. The covenant requires that effective remedies be available for violation of rights and the Human Rights Committee has pointed out to Australia several times that it is obliged to provide such remedies. But Australia has not so far heeded this call, except in the area of discrimination, and not completely there.

The result is that claims by individuals that covenant rights have been violated have to be referred to the Human Rights Committee in Geneva, and cannot be dealt with directly by our own courts and institutions. This is regrettable, since it is clear that to be fully effective, rights and freedoms should be incorporated into the law, so that they cannot be ignored or set aside easily.

It is therefore highly appropriate that on this 60th anniversary of the UDHR the Government is making a commitment to consult the community on the best means of recognising and protecting human rights and responsibilities in Australia.

The need for this is beyond question. Our laws and policies have failed to deliver fully on the promise of the UDHR and later instruments.

Failing our citizens

The greatest failings relate to Australia's Indigenous people. There is a fundamental lack of equality in their enjoyment of the right to life, and to the protection of the law and there are serious failings in regard to the economic social and cultural rights of Indigenous people, including the right to work, the right to education, to an adequate standard of living and to social security. All these rights are encompassed by the UDHR and by covenants to which we are a party. There are, in addition, serious questions about the effect of the Northern Territory intervention on the right to be free of discrimination.

In regard to asylum seekers, the Commonwealth's immigration power has been used and can be used to impose open ended mandatory detention on a class of persons designated as unlawful non-citizens, including children. This power can be used to keep a person in detention forever, when there is no prospect of the person's removal from Australia. So much for the right to be free from arbitrary detention, not recognised in our constitution.

Equally disturbing is the operation of the anti-terrorism laws. These have led to unwarranted restrictions on liberty, such as detention without charge, to unnecessarily harsh treatment of detainees waiting trial, and to heavy handed tactics by security officers. We have seen how these laws were misused in the Haneef case.

Some still maintain that the common law provides adequate protection of rights and freedoms. That source of protection is, however, limited, and cannot survive the imposition of valid legislative restrictions. In the examples mentioned the opportunities to challenge the infringement of rights involved in the legislation are limited, and there is no way to secure domestic remedies for the violation of our international obligations.

Those who work in human rights have to swallow the undigestible fact that our constitution protects free trade but may actually permit discrimination on the ground of race, and other infringements of internationally recognised rights.

Unless human rights principles are given effective legal status, the courts cannot assess whether laws and policies are compatible with rights, and neither the legislature nor the executive has a standard to guide it in the formation of those laws and policies. Without legally effective human rights, we cannot be sure that we are meeting our international obligations.

This is an edited extract from a speech delivered by Elizabeth Evatt at the University of New South Wales on December 10, 2008, to mark the 60th anniversary of the Universal Declaration of Human Rights. The full text is also available online.