By Outsider
On 16 October 2017 Australia was elected, uncontestedly, to the United Nations Human Rights Council.
The General Assembly elects the members which occupy the 47 seats. The Assembly takes into account the candidate States’ contribution to the promotion and protection of human rights, as well as their voluntary pledges in this regard. The term of each seat is three years; no member may occupy a seat for more than two consecutive terms. The seats are distributed among the UN’s regional groups as follows: 13 for Africa, 13 for Asia, 6 for Eastern Europe, 8 for Latin America and the Caribbean, and 7 for the Western European and Others Group.
Ms Emily Howie, Director of Advocacy and Research at the Human Rights Law Centre in Melbourne, said that Australia, compared with some other new members, would be well positioned to press for positive reforms on the human rights council. “But its cruel treatment of refugees will continue to haunt and stymie Australia’s efforts during its term. It can’t truly lead on human rights while it is blatantly breaching international law.” (Australia to be elected to powerful UN human rights council, The Guardian).
The Australian Government campaigned globally for its position, promising that it will promote gender equality; good governance; freedom of expression; indigenous rights; and strong national human rights institutions. It promised to advocate for the global abolition of the death penalty. In the bland offering which is traditional of ‘respectable diplomacy’, Foreign Minister Julie Bishop said that “Australia will bring a principled and pragmatic approach to our term on the human rights council.”
Translated into serious English the words ‘principled’ and ‘pragmatic’ clash – but this is the customary discourse of the Coalition. It is made up of characters usually very comfortable and relaxed (sport types – don’t you know?) always ready to compete for the World Doormat Cup. When such characters speak they are more interested in the echo of their voice than in the voice of the people. They are not so stupid as to avoid the customary praise of the ‘intelligence of the Australian people.’ Most of the populace believe that the holders of the Coalition reins are the most suitable around the joint: about three/fourths of the government since ‘federation’ have been ‘conservative’. The light-feathers from the other right wing of the turkey which is the Sub-Tropical Westminster System struggle to imitate in neo-liberal fashion. Every once in a while, mainly when things get difficult, they are ‘given’ their chance.
On 19 October Australia was required to submit its human rights record for examination before the UN’s Human Rights Committee, a committee consisting primarily of independent human rights experts from across the globe.
The United Nations Human Rights Committee is a United Nations body of 18 experts which meets three times a year for four-week sessions (spring session at UN headquarters in New York, summer and fall sessions at the UN Office in Geneva) to consider the five-yearly reports submitted by 169 UN member states on their compliance with the International Covenant on Civil and Political Rights, and any individual petitions concerning 116 States parties to the Optional Protocol.
The Committee launched straight in accusing Australia of chronic non-compliance with its international human rights treaty obligations. It singled out Australia’s refugee policies. Committee members described these as cruel, disturbing and shocking.
Just a day before the Committee met, the U.N. High Commission for Refugees sounded the alarm over the Australian Government’s intention to close the Manus Island Detention Centre and the means by which it was to be effected: “A lack of proper planning for the closure of existing facilities, insufficient consultation with the Manus community, and the absence of long-term solutions … has increased the already critical risk of instability and harm. Having created the present crisis, to now abandon the same acutely vulnerable human beings would be unconscionable. Legally and morally Australia cannot walk away from all those it has forcibly transferred to Papua New Guinea and Nauru. The UNHCR encourages the Government of Australia to prevent the looming humanitarian emergency.”
That statement came even before then Minister for Immigration, Peter Dutton, decided that the best means of effecting the closure of the Manus Island detention camp was to deprive those justifiably concerned about their safety in the wider PNG community of food, water and power.
In its fifth report on Australia, the UN Committee on Economic, Social and Cultural Rights, savaged asylum policy. It declared its alarm at the Government’s punitive approach to asylum seekers arriving by boat. It expressed deep concern about the policy of mandatory offshore detention. This detention, it observed, had continued despite informed reports of the harsh conditions that prevailed in the island detention centres, including for children. “These conditions included acute isolation, overcrowding, limited access to basic services like health care and education, sexual abuse by service providers, acts of intimidation, taunting and provocation, and frequent acts of serious self-harm. The Committee recommended a halt to offshore processing, the complete closure of the island detention facilities and the repatriation to Australia of those found to have been entitled to refugee status.”
“It’s not just refugee policy that has become the subject of intense international concern.” noted Professor Zifcak. “For example, the UN Economic, Social and Cultural Rights Committee recently criticised our country’s policies towards our indigenous peoples severely. While congratulating the Government in this context for the National Aboriginal and Torres Strait Islander Health Plan, the National Framework for Protecting Children and the National Plan to Reduce Violence against Women, the expert committee deplored the pervasiveness and persistence of indigenous people’s disadvantage.
It expressed its concern as to inadequate consultation with indigenous peoples in relation to the policies and programs that affect them. It criticised significant funding cuts to indigenous health and education programs and to non-governmental organisations established to alleviate indigenous economic and social disadvantage. It noted the legal difficulties confronting indigenous people when making land claims under the Native Title Act. It recommended that indigenous peoples be accorded constitutional recognition and that the Uluru statement be given serious consideration. So much for that. [Emphasis added]
The Committee urged the Government to refresh the Closing the Gap strategy; to ensure that the principle of free, prior and informed consent be embedded in legislation affecting aboriginal rights and entitlements; and to promote and apply the principles enshrined in the UN Declaration of the Rights of Indigenous Peoples.” (Spencer Zifcak, Australia elected to UN Human Rights Council – despite international condemnation, John Menadue – Pearls and Irritations).
Before the United Nations Human Rights Committee Australia was excoriated for its “chronic non-compliance” with the Committee’s recommendations, drawing particular condemnation over the mandatory detention of children and the same-sex marriage survey.
Professor Yuval Shany, a scholar of international repute who holds the Hersch Lauterpacht Chair in Public International Law at the Hebrew University of Jerusalem and is the Committee’s vice-chair, said that it was “unacceptable” for Australia “routinely [to] reject” the Committee’s views, or “self-judge” international human rights treaties, telling Australia it could not “pick and choose” which laws it sought to follow and which rights it wanted to uphold.
Australia’s lack of implementation of Committee findings was “completely off the charts for the Committee,” Professor Shany said. “It’s incredible for a country that claims to have a leading role in global human rights.”
While Australia had a “generally strong record” on human rights, Professor Shany said that it had “very little to be proud of” in addressing failings identified by the Human Rights Committee and other national and international bodies.
“There seems to be a misunderstanding of the purpose of the views of the Committee – they are not an invitation to respond … they are an articulation of a specific duty to take action on Australia’s obligation under the covenant.” … “While the function of the human rights council is not as such a judicial body, the views … are characteristic of a judicial decision … [and] represent an authoritative view.” … “While we can accept, in some cases, delay, because changes take time especially in implementing domestic legislation, it is unacceptable for a state to almost routinely fail to implement the views of the Committee and in essence challenges the expert nature of the Committee.” [Emphasis added]
The Committee made particular reference to the government’s dismissal of the Australian Human Rights Commission’s report The forgotten children, which found that immigration detention centres were a “dangerous place for children” and called for a royal commission into the mandatory detention of children. (The Forgotten Children: National Inquiry into Children in Immigration Detention (2014)).
The then Prime Minister Tony Abbott dismissed the report as a “blatantly partisan politicised exercise.” The Committee was especially troubled that the then Human Rights Commission chair, Professor Gillian Triggs, was asked by the Attorney-General – with an improper and unprofessional suggestion/bribe – to resign before the report was published.
Australia’s marriage equality postal survey was also criticised. A committee member, Professor Sarah H Cleveland, is the Louis Henkin Professor of Human and Constitutional Rights at Columbia Law School told the Australian delegation: “Human Rights are not to be determined by opinion poll or a popular vote.” [Emphasis added]
Other issues addressed by the Committee included domestic violence, transgender rights, the sterilisation of intellectually disabled women and girls, and the impact of anti-terrorism laws on civil liberties.
The position of the Australian delegation was that the implementation of the Committee’s views would have to be an area where the Committee and the government “respectfully disagree.” This is unctuous nonsense! Australia, the Committee was told, does not regard the views of the Committee and other treaty bodies as legally binding. This is nonsense, albeit not so unctuous.
Ms Amy Frew, a lawyer with the Human Rights Law Centre of Melbourne, while in Geneva for the hearings, said that Committee members were clearly dismayed at Australia’s disdain for the Committee’s expertise and processes. “The condemnation shows how far we have strayed from the promises we made to uphold the civil and political rights of Australians and people in our care.”
“It is surely ironic – noted professor Allan Patience – that soon after Australia secured a seat on the United Nations Human Rights Council the Turnbull government rejected a proposal for an advisory body that could help address the appalling Indigenous human rights record of successive governments in this country. Turnbull’s limp excuse for rejecting the idea was that it would not win the necessary support it would need at a referendum to provide the appropriate constitutional framework for the advisory body.”
This is not the sole problem, but a fundamental one. It comes with others.
“Politics in contemporary Australia displays ever-congealing levels of moral backwardness. In addition to our cruelty to asylum seekers on Manus Island and Nauru, we have pig-ignorant vested interests blocking the need for a coherent national energy policy, the reactionary stupidity of the same-sex marriage postal survey, mindless support for tax-payers to underwrite the monster Adani coal mine, persistent ideological obsessions with neo-liberal economic policies confecting the worst social inequality ever, indifference to the dying of the Great Barrier Reef, and a foreign policy framed by Australia being “joined at the hip” with the United States.
But the over-riding moral backwardness of contemporary Australian politics is glaringly evident in the country’s failure first to understand, and then to sensitively and effectively address this country’s disastrous human rights record on Indigenous affairs.” … “The on-going treatment of Indigenous Australia by white Australia is a deep evil in the heart of this country’s politics. The one measure against which Australia should be – and is – being judged regionally and internationally is the way we so callously disregard the human right of First Australians.” … “The Turnbull government’s rejection of this historically unprecedented proposal [the ‘Voice’ to Parliament advocated at Uluru in May 2017] is evidence of its moral backwardness. Turnbull should have seized on this idea and made it a signal policy defining his prime ministership.” … “This country urgently needs to come to grips with the human rights issues affecting our Indigenous peoples.”
And in one last savaging sentence Patience concluded:
“It’s time for this country to awake in fright from its moral backwardness. And the first thing we need to act on is fully restoring the human rights of every Indigenous Australian, forever.” (Is Australia a morally backward society? John Menadue – Pearls and Irritations).
