Pearls and Irritations

Two weeks ago, Australia was chosen as one of two new member nations on the UN Human Rights Council (HRC). Before one gets too excited about this achievement it is worth noting that our country’s election was uncontested. There were three countries vying for two positions on the HRC – Australia, Spain and France. France dropped out of the race just weeks before the election was due to be held. Spain and Australia, therefore, walked unopposed into the two spots that remained. It was just as well that there was no contested election. This nation’s human rights record is nothing of which we can be proud. And as it happens, the UN itself has been sharply critical of several aspects of Australia’s human rights performance in the three months before, and the two weeks after, the country’s success.

In August, 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 UN’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 UN 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 PNG community of food, water and power. It should surprise no one if this powder keg explodes.

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 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.

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 UN Human Rights Committee has expressed its acute frustration that its recommendations have been routinely ignored. 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.

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 is Allan Myers Professor of Law at Australian Catholic University. He is the former President of Liberty Victoria.  

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