SPENCER ZIFCAK. Critique of Government’s attacks on civil society.

Oct 26, 2016


UN Special Rapporteur on Human Rights Defenders’
Scathing Critique of Government’s Attacks on Civil Society 

In 1998, after 14 years of haggling, the UN General Assembly finally adopted the landmark UN Declaration on Human Rights Defenders. After another 10 years of thinking about it, the Australian government agreed to sign on to the Declaration.

The Declaration’s purpose is to promote the work of individuals and civil society organisations which act to protect people’s fundamental human rights and to ensure that in doing so, they themselves do not become the subject of human rights violations.

In signing on, the Australian government agreed to issue a standing invitation to the UN Special Rapporteur on the Situation of Human Rights Defenders, an independent expert appointed pursuant to the Declaration, to visit Australia. The Rapporteur’s role would be to evaluate the Commonwealth and State governments’ record in meeting the standards of protection the Declaration sets down.

Michel Forst, the UN Special Rapporteur, conducted his first visit to Australia in the early weeks of October. At its conclusion he issued an ‘End of Mission’ statement summarizing his conclusions. The Federal Government must be ruing the day it invited him. The statement is a scathing indictment of the nation’s non-performance in catalyzing the defence of fundamental rights and freedoms.

Forst’s report began favourably enough. He wrote that he expected his visit to be positive, particularly given that Australia had been a staunch supporter of national human rights institutions in Asia and elsewhere in the world. In that context, he noted the Federal Government’s campaign for election to the UN Human Rights Council in 2018.

Instead, he said, he had been astonished to observe an accumulating array of measures that had placed intense, negative pressure on Australian civil society organisations. He expressed his surprise at the discrepancy between the Government’s external pronouncements concerning human rights abroad and its attitude to human rights NGOs at home.

The Australian government had been commendably supporting resolutions on human rights defenders at the UN General Assembly and Human Rights Council. But, at the same time, it had been placing human rights advocates under pressure at home pursuant to a regrettable pattern of restriction and vilification by government officials and segments of the media.

Here is a brief summary of what the Special Rapporteur uncovered:

  • The free, prior and informed consent of Indigenous people is neither encouraged nor protected under Australian law. While consultations are held, insufficient information is shared, there is no follow up of recommendations, or officials simply choose preferred individuals and organizations with whom to speak.
  • Deep cuts to the funding of civil society organisations have severely hampered their operation, decreasing significantly their capacity to carry out their work in support of vulnerable and disadvantaged people.
  • ‘Gagging clauses’ in funding agreements with social welfare NGOs has prevented them from conducting effective representation and advocacy for their clients, all of whom are too poor to arrange representation from their meagre means. Such clauses forbid agencies funded by government from engaging in any criticism of government decisions or actions.
  • Sustainable funding for civil society organisations has been dispensed with in favour of short-term and project funding. This limits the ability of agencies to engage in any form of strategic thinking. It creates an environment of anxiety in which the organisations work in constant fear of being defunded if they speak out about the individual and collective injustices they encounter.
  • Freedom of speech is attacked, notably through the existence of hundreds of secrecy provisions in Commonwealth legislation. The Australian Reform Commission has recommended an extensive review and repeal of such provisions. The Government has done nothing.
  • Counter-terrorism laws have intimidated journalists and judges. Journalists face imprisonment if they report on ASIO special intelligence operations. Judges have found their discretions heavily restricted, particularly in refugee and terrorism matters.
  • Commonwealth and State Governments have passed legislation designed to block environmental activists’ access to the courts, especially where concerned with mining activities.
  • Independent Office-holders, whose task it is to provide impartial advice and hold government to account, have been subject to sustained attack or subversion: Witness the fates of Gillian Triggs, Justin Glesson, John McMillan and politicized   appointments to the position of Australian Human Rights Commissioner.
  • Women’s human rights defenders have received savage threats on social media in consequence of their advocacy in support of women who are vulnerable as single mothers, survivors of domestic violence, or individuals in financial distress.
  • Access by refugee lawyers to their clients, particularly in offshore detention centres, has been discouraged and prevented. Detainees have not been allowed mobile phones; telephone calls and visits to detention facilities are hard to arrange or, in the case of asylum seekers offshore, forbidden; the Border Force Act has been passed forbidding all staff in detention centres, other than medical personnel, from speaking out about detention conditions, on pain of hefty fines or imprisonment.

The Special Rapporteur’s evaluation is even more extensive and critical than that. It paints a dark and worrying picture. The report is especially illuminating because it puts together instances and strands of restrictions on civil society organisations which have been known about in legal, medical and NGO circles for some time, but which have not previously been synthesized in the way this report does.

The report just released is Mr Forst’s preliminary one. The final one is likely to make grizzly reading.

In case it seems to the reader that the Special Rapporteur’s observations are in any way exaggerated, one need only read the following paragraph from The Australian’s editorial last week to review that opinion (October 22). Under the heading, ‘Taxpayer-funded activism undermining the nation’, the editorial rails against civil society:

Such (human rights) campaigning is encouraged by many publicly funded institutions, especially our universities. Refugees, climate change and identity politics have become the defining issues of our age for so-called progressives. By proclaiming progressive positions on these issues, many define themselves as morally superior and are exempted from normal constraints of debate, such as fact, reason and tolerating the views of others. We need a diversity of views but it seems occasionally absurd that green groups receive government support to protest against developments governments encourage. Refugee advocacy centres are funded to challenge government decisions. And activists at the extremes of gender politics are funded to develop insidious social engineering projects…As a society we seem to lack the courage to defend the values and policies that underpin our success. Yet we help groups that undermine policies, projects and institutions that benefit all of us. We need a stocktake.

Yes, we needed a stocktake. Thankfully, the UN Rapporteur on the Situation of Human Rights Defenders has just conducted the one that we required.

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and was for ten years a Vice-President of the International Commission of Jurists (Australian Section)



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