Spencer Zifcak. UN Human Rights Council Weighs in on Australia27/11/2015
On 21st of March 2000, an Australian delegation appeared before the UN Committee on the Elimination of all Forms of Racial Discrimination (CERD) in Geneva. The Hon Philip Ruddock, then Minister for Immigration in the Howard Government, led the delegation. The meeting did not go well.
Confronted by exceptionally well-informed and assertive questioning by the Committee’s rapporteur, the Minister became condescending and defensive. His justifications for Australian policies, particularly in relation to Australia’s indigenous peoples, fell apart.
Their health, education and social disadvantages, he implied, were the result of lifestyle choices. Nothing could be done about mandatory sentencing and its disproportionately adverse impact on black Australians because that was the responsibility of the States. As to the position of women, Ruddock replied that ‘if you knew some of the women around me, by blood and other, you would know the empowerment of women is a very significant issue!’ This was hopeless.
The result was that CERD responded with a highly critical evaluation of Australia’s racial discrimination record. It expressed grave concern regarding high rates of indigenous incarceration. It noted the disproportionately discriminatory effect of mandatory sentencing. It remained concerned about dramatic levels of inequality in indigenous peoples’ access to health, education and housing. It was highly critical of the Government’s failure to respond seriously to the Australian Human Rights Commission’s report on the Stolen Generations.
The Government responded by savaging the messenger. It stated that that the Committee’s report was ‘an unbalanced and a wide-ranging attack that intrudes unreasonably into Australia’s domestic affairs’. In his finest diplomatic language, then Foreign Minister, Alexander Downer said that ‘if a UN Committee wants to play politics here in Australia then it will end up with a bloody nose’.
Things do not seem to have improved very much. Reflecting upon Australia’s shellacking before the UN Human Rights Council on November 9th this year, the current Minister for Immigration, Peter Dutton, described the process as ‘a farce’. So, what happened?
Australia was in Geneva for the UN Human Rights Council’s second review of its human rights record, a process known as Universal Periodic Review (UPR). With the agreement of all UN member states, every country submits its human rights performance for review once every four years. Interestingly, given his somewhat dire performance previously, Mr. Ruddock was back again as a member of the Australian delegation. He was more circumspect this time.
Over four hours, more than 100 nations took the opportunity to question and criticise many different aspects of Australia’s performance in protecting human rights. These criticisms were largely consistent with the UN High Commission for Human Rights’ (OHCHR) own analysis of Australia’s actions in responding to the reports of UN Human Rights Treaty Committees in the four years since the last UPR. The Council also benefitted from a fine background document prepared by the Human Rights Law Centre on behalf of more than 200 Australian human rights NGOs.
The OCHCR report contained several very positive comments concerning Australia’s recent record. It warmly welcomed the Parliament’s commitment to recommend a constitutional amendment that recognized Australia’s first peoples. It praised Australia’s concerted efforts to combat people trafficking and trafficking related exploitation. It applauded the introduction of the National Disability Insurance Scheme. It commended Australia’s advocacy for the abolition of the death penalty globally and new legislation that had introduced an offence of torture into the Australian Criminal Code.
Nevertheless, the report noted that UN Treaty Bodies had recommended consistently that the Australian Government do much more to close the inequality gap between Australia’s indigenous and non-indigenous peoples. It reflected concern commonly expressed about the health disparities of children living in rural and remote areas, children in out-of-home care, children with disabilities and in particular about the gap in health status between indigenous and non-indigenous children. It expressed alarm at the levels of violence against women and the sexual abuse of children.
Its principal reservation, however, related to Australia’s treatment of people seeking asylum. The report’s introductory paragraph on the issue read:
The response of Australia to migrant arrivals had set a poor benchmark for its neighbours in the region. The authorities had also engaged in the ‘turn around’ and ‘push-back’ of boats in international waters. Asylum seekers were incarcerated in centres in third countries where they faced conditions that the Special Rapporteur on Torture had reported as amounting to cruel, inhuman and degrading treatment…and which also violated the Convention on the Rights of the Child. Even recognised refugees in urgent need of protection were not permitted to enter Australia which had set up relocation arrangements with countries that might be ill-prepared to offer those refugees any durable solution. Such policies should not be considered a model by any country.”
In the review before the Human Rights Council, the vast majority of countries picked up on the same issues. Mr Dutton was right to criticise North Korea’s intervention which was hypocritical and wayward in the extreme. But one outlier in a hundred does not constitute a farcical dialogue.
France recommended that Australia strengthen measures to eliminate discrimination against indigenous populations. The USA urged Australia to consult indigenous peoples when considering the viability of remote communities. New Zealand asked that Australia address inequalities affecting health, education, employment and income that disproportionately affect indigenous peoples and other minorities. Hungary suggested that Australia should develop, in partnership with indigenous communities, a national strategy to implement the UN Declaration on the Rights of Indigenous Peoples.
Germany strongly condemned Australian refugee policy saying that children, families and other individuals at risk, in particular survivors of torture and trauma, should be removed from immigration detention centres. Sweden urged Australia to ensure that relevant measures should conform fully with international law and human rights, including the principle of non-refoulement and the detention of asylum seekers should only occur when absolutely necessary and for a minimal time.
The USA told Australia to closely monitor the processing of refugees and asylum seekers in offshore detention centres to ensure that their fundamental human rights are respected. Norway insisted that independent judicial review of detention and its conditions should be ensured. Iceland recommended that Australia fully incorporate its international human rights obligations in domestic law by introducing a comprehensive, judicially enforceable Human Rights Act.
There is nothing too farcical here. In fact there was next to nothing in the criticisms made by more than half the nations of the globe that has not previously been identified as deeply problematic by Australia’s Human Rights Commission.
There is no chance of Australia winning a seat on the UN Human Rights Council in 2018-2020 – unless we listen and act.
 Readers who wish to follow the history of Australia’s relationship with the UN Human Rights Treaty Body System may wish to have a look at my book Mr Ruddock Goes to Geneva, UNSW Press, 2003.
Spencer Zifcak is Allen Myers Professor of Law and Director of Research at the Academy of Law, Australian Catholic University. He is Immediate Past President of Liberty, Victoria.