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Much law, scarce justice (Part 3)

Part Thirty-three of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.

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 General Assembly takes into account the candidate States’ contribution to the promotion and protection of human rights, as well as their voluntary pledges and commitments in this regard. The term of each seat is three years, and no member may occupy a seat for more than two consecutive terms. The seats are distributed among the U.N.’s regional groups as follows: 13 for Africa, 13 for Asia, six for Eastern Europe, eight for Latin America and the Caribbean, and seven for the Western European and Others Group.

And how Australia, with a record of 200+ years of mal-treatment of Indigenous People, will fare on the Council is something to behold!

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 has also said it will 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 plain English the words ‘principled’ and ‘pragmatic’ clash – but this is the customary discourse of the Coalition.

How Australia’s asylum policies – particularly boat turn-backs and offshore detention – as well as its failure to address Indigenous health, education and incarceration issues, which have attracted consistent criticism by United Nations bodies, could be regarded as principled is possible only if the correcting alternative is pragmatic.

Australia will sit with some unsavoury countries: the advancement of women’s rights is not likely to be encouraged by Saudi Arabia; the Philippines carries out with large extrajudicial killings in its ‘war on drugs’; the security forces of the Democratic Republic of Congo have a reputation for arbitrary arrest, torture and killings, as well as the persistent recruitment of child soldiers; but a sense of communion will be shared with anti-refugees Hungary, and a common anti-Russia language will be spoken with representatives of Ukraine.

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, 14 October 2017, The Guardian).

Australia was promptly excoriated before the United Nations Human Rights Committee 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.

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 U.N. headquarters in New York, summer and fall sessions at the U.N. Office in Geneva) to consider the five-yearly reports submitted by 169 U.N. 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.

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.”

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), Australian Human Rights Commission).

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.” (‘Unacceptable’: UN committee damns Australia’s record on human rights, 19 October 2017, The Guardian).

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.” Australia, the Committee was told, does not regard the views of the Committee and other treaty bodies as legally binding.

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.”

Australia’s periodic examination by the U.N. Human Rights Committee in Geneva, came in the same week as Australia was elected to the U.N. Human Rights Council.

Foreign Minister Julie Bishop nominated as priorities for Australia’s three-year term: gender equality; good governance; freedom of expression; Indigenous rights; strong national human rights institutions; and the global abolition of the death penalty.

On 18 October 2017 the Office of the United Nations High Commissioner for Refugees repeated that Australia had responsibility to prevent the “looming humanitarian emergency” caused by its enforced closure of its Manus Island offshore detention centre while hundreds of men remained living there.

“Having created the present crisis, to now abandon the same acutely vulnerable human beings would be unconscionable,” said Mr Thomas Albrecht, the Regional Representative of the United Nations High Commissioner for Refugees in Canberra.

“Legally and morally, Australia cannot walk away from all those it has forcibly transferred to Papua New Guinea and Nauru.” (See also: UNHCROp-ed by Thomas Albrecht, Regional Representative in Canberra, 2 October 2017).

By 15 November 2017 it had become quite clear that Australia had delivered to the LGBTI community but failed its First Peoples – once more.

Expressions of solidarity with Indigenous and Torres Strait Islanders, such as that of a distinguished Professor Spencer Zifcak, who is Allan Myers Professor of Law at Australian Catholic University and the former President of Liberty Victoria, would not reach a government like that of Mr Turnbull.

This is part of what Professor Zifcak wrote:

“In August [2017], the UN Special Rapporteur on extra-judicial, summary and arbitrary executions lashed the Australian Government’s policy of turning back refugees at sea and in secrecy. Categorising this policy as an egregious example of the excessive use of force, the Rapporteur wrote:

‘Push-back measures’, in addition to violating the principle of ‘non-refoulement’ (returning people back to the countries from which they had fled persecution) may also amount to excessive use of force whenever officials place refugees or migrants intentionally and knowingly in circumstances where they may be killed or their lives endangered …This includes the 2013 policy of Australia … Such practices raise serious concerns that they may intentionally put lives at risk, given that security officials know, but disregard, the reality that returnees may be victims of brutal crimes when returned.

On 19 October Australia was required to subject its human rights record for examination before the U.N.’s Human Rights Committee, a committee consisting primarily of independent human rights experts from across the globe. 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 the Minister, 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 P.N.G. community of food, water and power.

In its fifth report on Australia, the U.N. 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.”

And, should there be more nonsensical talk about the ‘commonality in the Anglo-sphere’, this is what Professor Zifcak presented:

“It is not just UN bodies that have been critical. Several European countries, Canada and New Zealand have each issued sharp criticisms. In early October, the former Canadian Prime Minister, Mr Joe Clark, described Australia’s offshore detention regime as ‘horrendous’. The Canadian Centre for Global Pluralism shamed Australia for its inhumane policies, toxic rhetoric and the threat its policies represented to an inclusive society.

It’s not just refugee policy that has become the subject of intense international concern. 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.”

As to the fulfilment of Australia’s obligations under the International Covenant on Civil and Political Rights, the U.N. Human Rights Committee has expressed its acute frustration that its recommendations have been routinely ignored. said Professor Zifcak.

And the learned writer listed a few failures:

“So, for example, Australia has given insufficient consideration to the necessity to protect fundamental human rights when drafting counter-terrorism legislation. It has not legislated comprehensively to protect the right to equality and non-discrimination. It has not enacted legislation to outlaw hate speech. It has done nothing to redress the alarmingly high rates of indigenous incarceration. It has been reticent in dealing with brutality in youth detention facilities. Australia remains alone among Western countries in having neither a constitutional nor statutory Bill of Rights. [Emphasis added].

It would have been good if we could have greeted Australia’s ascension to membership of the UN Human Rights Council with a measure of optimism as to its future contribution to the protection of civil and political rights internationally. Instead, we shall have to hope that during its term Australia’s government will become more sensitised to and educated about the necessity to observe international human rights norms than its current heedlessness at home so clearly undermines.” (Spencer Zifcak, Australia elected to UN Human Rights Council – despite international condemnation, 6 November 2017, John Menadue – Pearls and Irritations).

Indigenous and Torres Strait Islanders will have to take their chance, and look elsewhere. But where?

Continued Monday with: One last chance (Part 1)

Previous instalment: Much law, scarce justice (Part 2)

Dr Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at George.Venturini@bigpond.com.au.


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