Spencer Zifcak. Special Envoy on Human Rights. Ruddock. What?Feb 24, 2016
In 2003, I wrote a short book entitled Mr Ruddock Goes to Geneva. The book was not as superficial as its title might have suggested. It was in fact a serious study of Australia’s vexed relationship with the UN Human Rights Treaty System. My argument was that the Howard Government should have given the recommendations from UN Human Rights Treaty bodies about ways in which Australia could improve its observance of human rights more thoughtful consideration.
Instead, the Government had adopted the habit of rejecting any criticism of its human rights record out of hand. This came at the cost potentially of retarding the interests and well-being of many disadvantaged Australian citizens, not least those of the nation’s indigenous peoples and those seeking asylum in the country.
The book’s title, however, had meaning. It referred to a now legendary performance by then Minister for Immigration, Philip Ruddock, before the UN’s Committee on the Elimination of Racial Discrimination in its 2002 periodic review of Australia’s compliance with the International Convention on the Elimination of Racial Discrimination.
Mr Ruddock’s appearance took place against the background of a considerable change in the Government’s attitudes and actions in relation to human rights. The Government had wound back native title. It had steadfastly refused to apologise to or compensate the stolen generations. Aboriginal reconciliation had ground to an acrimonious halt. In response to a surge in people seeking political asylum, the Government had hardened the policy of mandatory detention, and built far flung detention centres in which asylum seekers were detained behind barbed wire fences.
Mr Ruddock’s performance before the UN Committee was, by any account, a dismal failure. His demeanour was arrogant and condescending. His arguments served only to harden the Committee’s opinion that Australia, a nation whose human rights record had been admired, had joined the ranks of countries known routinely to violate the freedoms and entitlements of their citizens.
In his presentation before the Committee, the Minister began by suggesting that it would be difficult for the Committee to come to any reasoned conclusions about Australia’s human rights record because it lacked the expertise to do so. He referred erroneously to Committee members as delegates, thereby implying wrongly that they were beholden to their governments. They are not. They are chosen for their human rights expertise. Nevertheless, he frequently deflected criticism by Committee members by engaging in counter-criticism of the human rights record of their countries of origin.
His responses to substantive, and increasingly critical questioning were no better. Asked about the continuing health, educational and economic disadvantages experienced by Aboriginal peoples, he suggested that the problem stemmed principally from their choice of lifestyle, rather than with any deficit in government policy.
On mandatory sentencing, he asserted that it was not the role of the Commonwealth to override State legislation, even if that legislation breached Australia’s international human rights obligations. He denied that mandatory sentencing had the effect of discriminating against indigenous people, despite a mountain of evidence to the contrary.
He justified the decision not to apologise to the stolen generations because the Government had already expressed regret for the hurt and trauma that many Aboriginal people continued to feel. The fundamental distinction between an expression of parliamentary regret and a national apology seemed to elude him.
This, then, is the man that the Prime Minister has chosen to lead Australia’s campaign to be elected to the UN Human Rights Council in 2018. If that campaign is to be successful, as I hope it will be, a more inappropriate appointee could hardly be imagined. Still, that single appearance at the UN would not be sufficient to damn the appointment without more. There is plenty more.
Philip Ruddock is the architect of the ‘Pacific Solution’. We should call this for what it is. It is a government policy pursuant to which ‘boat people’ including ‘boat children’ are subjected to calculated persecution, cruelty, degradation and damage in order that other people who have suffered from persecution, cruelty, degradation and damage in their home countries should be deterred from flight to Australia by sea. The ‘Special Envoy for Human Rights’ bears principal responsibility for this policy, though it may readily be acknowledged that a number of his successors as Minister for Immigration have rendered the policy ever more abhorrent.
When Minister, Mr Ruddock misled the Australian public grievously when, with his devious colleague Peter Reith, he asserted that the children of asylum seekers had been thrown overboard in order to place pressure on the government to allow them to land on Australia’s shores. The claim was always untrue. Ruddock has never apologised.
As part of the Government’s response to terrorist attacks elsewhere, Philip Ruddock introduced draconian sedition laws, which had they been implemented in full could have put a stop to critical journalistic and public discussion and debate concerning terrorism and the justification or otherwise of measures to prevent it. In response to initial protest at the laws, he referred them to the Australian Law Reform Commission. The Commission recommended either full repeal or major amendment. In a blow to freedom of speech, its recommendations were shelved.
When Attorney-General, Mr Ruddock disgraced himself by expressing his support for the American system of military commissions established to try detainees at Guantanamo Bay. His support arose from contention concerning the fate of David Hicks, an Australian citizen detained there. Any bush lawyer could see that the commissions were biased and that their procedures were grossly unfair. Our Attorney-General, the nation’s first law officer, defended them.
He went further. He failed to utter one word of criticism concerning the use of torture at Guantanamo Bay and Abu Ghraib. Instead, he surmised that sleep deprivation might not constitute torture at the same time as suggesting that admissions made under such conditions may be admitted as legitimate evidence. Later, the US Supreme Court declared the military commissions unconstitutional and the charge against Hicks as invalid because the relevant criminal law did not exist at the time the alleged offences were committed. So much for the Special Envoy for Human Rights’ legal perspicacity and morality.
Human rights are a subset of a broader commitment to the rule of law. As Attorney-General, Mr Ruddock seemed to have little time for the idea. He was well known for not reappointing members of the Refugee and Immigration Tribunals with whose decisions he did not agree and replacing them with his supporters. In this way, he substantially undermined the Tribunals’ independence.
He sought time and again to narrow the scope of judicial review of immigration decisions. So, for example, he introduced an amendment to the Migration Act that inserted a privative clause the effect of which was completely to remove all but administrative and mechanical migration decisions from legal challenge or appeal before the Federal Court of Australia.
Mr Ruddock made criticism of the judiciary into an art form. Departing from the centuries’ long convention that one core element of an Attorney-General’s role was to defend the judiciary against attacks by executive government, Mr Ruddock became the courts’ most ardent critic. The ferocity of these attacks moved former Justice of the High Court, Michael McHugh, to remark that:
“If the Executive Government is continually criticising the Judiciary, the authority of the courts of justice is likely to be undermined and public confidence in the integrity and impartiality of the judges is likely to be diminished. Continuing conflict is also likely to induce the Executive Government to prevail on the legislature to take the extreme step of reducing or abolishing judicial review with the result that the rule of law is undermined”.
Taken together, the frank human rights violations of which Mr Ruddock has been guilty during the course of his long political career, and I have mentioned only a few, suggest two principal conclusions in relation to his appointment as Special Envoy for Human Rights.
First, had he even a scintilla of insight concerning his record, he should courteously have refused the Prime Minister’s offer of the position, regarding himself as particularly unsuitable. Secondly, the Prime Minister’s judgment must be called into question. He has just shot Australia’s bid for a seat on the UN Human Rights Council in 2018 in both feet.
Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and Immediate Past President of Liberty Victoria