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Elizabeth Evatt[*]
… a commitment to good international citizenship demands no less than acting to help secure universal adherence to universal rights.’
Gareth Evans[1]
Australian policy, therefore, does not presume to hold other nations to standards that we do not apply to ourselves.
Alexander
Downer[2]
As a good international citizen, Australia was a founder member of the United Nations. It contributed to the promotion of human rights by its work in many UN bodies and specialised agencies by participating actively in drafting the Universal Declaration of Human Rights, other human rights instruments and such measure as the Statute of the International Criminal Court. It has ratified many instruments relevant to human rights, including those relating to genocide and refugees.
Australia is a party to all six major UN human rights treaties: the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention Against Torture and the Convention on the Rights of the Child. Australia is also a party to the individual complaint procedures under these instruments, with the exception of the new Optional Protocol to CEDAW (see below).
There were delays in ratification of these treaties, especially in regard to the complaint procedures. These delays were attributable to various causes, not least of which was reluctance on the part of the Commonwealth to encroach on areas traditionally falling under State and Territory jurisdiction, despite the extent of the external affairs power. Australia made several reservations and declarations to the instruments, some of which have since been withdrawn or modified.
The UN human rights treaties impose legal obligations on state parties to bring their domestic laws and practices into compliance with the standards protected by those treaties. Australia’s record in implementing these treaties is far from perfect. An exception is the Convention on the Elimination of Racial Discrimination, which was implemented by the Racial Discrimination Act 1975. This Act has played a significant role in regard to indigenous rights, and has contributed to such important decisions as Koowarta and Mabo.
The other human rights instruments have not been so fully implemented. The Sex Discrimination Act 1984 gives only partial effect to the Convention on the Elimination of All Forms of Discrimination Against Women. The Act is hedged about with exemptions, and it does not include a comprehensive guarantee of equality. Although the Covenant on Civil and Political Rights, ratified in 1980, is annexed to the Commonwealth Human Rights and Equal Opportunity Act 1986, Covenant rights cannot be directly enforced by the courts. Just one aspect of the Covenant has been the subject of legislation to protect private sexual conduct between adults from arbitrary interference: the Human Rights (Sexual Conduct) Act 1994 (Cth) implements in part article 17 of the Covenant.
There is no specific legislation in respect of the Convention on the Rights of the Child, or the Covenant on Economic, Social and Cultural Rights. Important aspects of the Convention Against Torture, for example, article 3 relating to non-refoulement, have not been made enforceable in Australian courts; The Crimes (Torture) Act 1988 is limited to making acts of torture committed outside Australia punishable in Australia.
The lack of implementation measures means that many rights protected by UN human rights instruments cannot be directly enforced in the Australian courts. In some cases, this is due to the reluctance of the Commonwealth to encroach on State powers. Whatever the reason, the fact remains that in many instances the only independent means of assessing the extent of Australia’s compliance with human rights obligations is through the mechanisms established by the treaties themselves.
Each of the six United Nations human rights treaties establishes an independent committee (or treaty body) to monitor compliance by state parties. The members of these treaty bodies are elected by the state parties but act in their personal capacity, ‘according to conscience’. The treaty bodies examine written reports from the state parties and, where the state has accepted the procedure, they consider individual complaints of violation of rights.
State parties are required to submit written reports to the treaty bodies at regular intervals. Each committee meets with a delegation from the state party in open session to raise questions and issues on the report. Thereafter the committee draws up its conclusions and makes recommendations to the state about action needed to bring its laws and practice into line with the treaty.
This procedure is the established means of making states accountable for their human rights performance. As the determinations and opinions of the treaty bodies do not have legally binding force, the effectiveness of the system depends on the willingness of states to respect the views of the treaty body, and to fulfil in good faith their obligations under the treaty.
The system is by no means perfect. As the number of state parties has continued to increase, with no equivalent increase in time or resources allocated to the treaty bodies, the committee has found it difficult to keep up with the number of reports submitted by state parties. The system manages only because some states fail to submit reports, or submit them late.
States have found it burdensome to prepare reports on overlapping issues to six different treaty bodies. Concerns about the system go back several years, and have been reported on in detail.[3] A reform process has been under way, with the aim of streamlining the reporting procedure and securing greater resources for the treaty bodies. Australia has been active in this process.
Australia fell very far behind with its own reporting obligations in the 1990s. The excuse given by the government to the Joint Standing Committee on Foreign Affairs, Defence and Trade was the delay in obtaining information from the States, Territories and some federal bodies, and the time needed to verify the material. A lack of dedicated resources was also mentioned.
After the Committee recommended in 1998 that procedures be reviewed in order to meet reporting dates, the government promised to work to meeting deadlines in future.[4] Partly as a result of accumulated delays, Australia’s reports were examined by four different committees in 2000. In the case of the ICCPR, it was 12 years since the last report had been examined. In the case of the Committee Against Torture, the gap was more than eight years.
In 2000 Australia presented reports to the Human Rights Committee in July, to the Committee on Economic, Social and Cultural Rights in August, and to the Committee Against Torture in October.
These committees raised many issues and concerns about the rights of indigenous people, including their role in decision making over their traditional lands and natural resources, the effects of the Native Title Amendments of 1998, the high level of exclusion and poverty facing indigenous people; the adequate protection of Aboriginal heritage and traditional activities; the lack of proper remedies to deal with the effects of the child removal policies, and treatment in custody.[5] They also referred to the lack of effective remedies for violations of rights and to mandatory sentencing leading to the imposition of punishments disproportionate to the crime.
The government’s refugee policies did not escape attention. The Human Rights Committee urged reconsideration of the policy of mandatory detention of ‘unlawful non-citizens’ and recommended that all detainees be informed of their legal rights, including their right to seek legal counsel.
The Committee Against Torture recommended that consideration be given to providing a mechanism for independent review of ministerial decisions in respect of cases coming under article 3 of the Convention (non-refoulement). The Human Rights Committee also recommended that remedies be provided in these and other cases.
Since Australia ratified the individual complaint (communication) procedures in the early 1990s, a considerable number of cases have been lodged against it, especially with the Human Rights Committee. Most have been found inadmissible, or not to involve violations. But not all.
When, in 1994, the Human Rights Committee found that the Tasmanian anti-gay criminal laws violated Mr Toonen’s right to privacy,[6] the government responded by enacting the Human Rights (Sexual Conduct) Act 1994 to provide a specific remedy for arbitrary interference with the privacy of sexual conduct between consenting adults. That turned out to be a high water mark.
Three years later, in 1997, when the Committee found that the rights of an asylum seeker were violated by prolonged detention without judicial review,[7] the government rejected the Committee’s view that such detention was arbitrary, on the basis that the views were not legally binding and that, in any event, the government did not agree with the Committee’s conclusions.
The government was extremely displeased by the finding of the Torture Committee in 1999 that to return a failed asylum seeker to Somalia would violate the provisions of the Convention which expressly prohibit the expulsion of a person to another state if there are substantial grounds for believing that the person would be in danger of being subjected to torture.[8] An internal proposal was made to denounce the procedure, but this was discouraged by the Department of Foreign Affairs and Trade (DFAT).
Meanwhile, in 1998, CERD had asked Australia for a report on the amendments to the Native Title legislation (Wik amendments) and their compatibility with the Convention. After considering this report in early 1999, CERD’s view was that the amendments were in some respects incompatible with the Convention. DFAT later commented that CERD’s findings did not reflect the considerable body of evidence presented by the government and that, in requesting the suspension of the Native Title Amendment Act 1998, CERD failed to understand the workings of a parliamentary democracy.[9]
CERD’s report was later referred to a Parliamentary Committee which was equally divided on the issues which had been before CERD.[10] The fact is that both before and after the passage of the Wik amendments, many human rights lawyers in Australia argued that some of its provisions could lead to discrimination contrary to the Convention. The monitoring body, CERD, had the same view.
By the end of 1999, cracks were beginning to show in Australia’s relationship with the treaty bodies. Australia had been very late in the submission of reports, it had rejected findings of violation by two treaty bodies, and it had been unhappy with CERD. But at this stage Australia had not seriously questioned the role or credibility of the treaty bodies.
On the contrary, the government’s statement to the Third Committee in November 1999 emphasised the important contribution of the treaty bodies to the protection and promotion of human rights by monitoring implementation of the core human rights treaties; by highlighting violations of these treaties and human rights standards; by interpreting the rights and obligations contained in the treaties; and by encouraging better implementation and compliance through advice to states. A pretty good wrap up, when one considers what followed.
A dramatic about face by the government in its attitude towards the treaty bodies occurred in 2000. In December 1996 the Minister for Foreign Affairs had said:
The comments of UN Committees on Australia’s reports, and on complaints brought by individuals, help to ensure that we meet our international commitments under these treaties.[11]
In August 2000, his approach was quite different:
The Australian Government, like any other government, is entitled to accept or reject those views [ie of the treaty bodies], embrace or contest them, as part of the international process.[12]
The change became apparent when Australia’s regular periodic reports came up for consideration by CERD in March 2000. The Australian delegation was led by the Minister for Immigration and Multicultural Affairs, Mr Ruddock.
The Committee’s concluding observations, adopted on 24 March 2000, raised a number of concerns, including the application of the Convention to the States and Territories, reconciliation, institutional changes to the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Human Rights and Equal Opportunity Commission (HREOC), the removal of indigenous children from their families, mandatory sentencing and the continuing discrimination experienced by indigenous people.[13] CERD’s concerns raised in 1999 about the discriminatory nature of certain amendments to the Native Title Act were repeated.
The reaction of the government was rapid and extreme. The Minister for Foreign Affairs’ statement of 30 March 2000 accused CERD of a blatantly political and partisan approach, and of making a polemical attack on the government’s indigenous policies, based on an uncritical acceptance of the claims of domestic political lobbies. CERD was also criticised for referring to Australia’s obligations under the Refugee Convention, a matter outside its mandate.
The vehemence of the attack was surprising, particularly as all the treaty bodies were accused of pursuing political agendas rather than fulfilling their ‘expert’ objectives. The statement announced that the government would undertake a review of Australia’s participation in the treaty body system.
Clearly, CERD had touched on a raw nerve; it had not accepted the government’s justifications of the Wik amendments. Politically, the government would not consider re-examining those issues, so it chose instead to denigrate the treaty body. DFAT later tried to connect the government’s attack on CERD with more general concerns about treaty body reform, alleging that the short time available to treaty bodies to deal with complex issues and their limited resources led to superficial consideration of issues, reliance on a few members to do the work and over-reliance on non-government organisation (NGO) information.[14]
No substantiation of these claims has been offered, nor any reason for extending the assertions to all the treaty bodies. In fact, Australia had not been before any other treaty bodies since 1997, and in the case of the Human Rights Committee not since 1988.
The government’s review proceeded behind closed doors, without terms of reference and without seeking public input. Submissions were refused: the Law Council, for example, said that its attempt to make a submission was refused.[15]
The outcome of the review was a joint press statement, delivered on 29 August 2000 by Minister for Foreign Affairs, The Hon Alexander Downer MP, Attorney-General, The Hon Daryl Williams AM QC MP and Minister for Immigration and Multicultural Affairs, The Hon Philip Ruddock MP.
The statement is headed: ‘Improving the Effectiveness of UN Committees’. But in reality it is little more than a threat by the Australian government to limit its co-operation with the treaty bodies unless unspecified changes are made. Unfortunately there is no reasoned report to substantiate its assertions or to explain exactly what changes are sought or what their effect would be.
One of the government’s demands is that the treaty bodies should recognise the primary role of democratically elected governments and the subordinate role of NGOs. This proposition is both vague and rather dangerous. It suggests that government submissions should be accepted without question when a government is ‘democratically elected’, a category hard to define or to apply. There is no category of country, however democratic, which is completely free of human rights problems, and no basis for the treaty bodies to apply different standards to different countries when considering NGO submissions.
In any event, it is inherent in the treaty body system that governments have a special status. They cannot be forced to submit their reports, and can put any material they wish before the treaty bodies on an official basis. They can send delegations of any size to participate in open discussions with the treaty bodies. The status of NGOs and the material they submit is unofficial. As the research by the UN secretariat is virtually limited to material provided by governments, the submissions made by NGOs, both domestic and international, are invaluable to the treaty bodies in identifying issues of compliance to raise with the government delegations. But it is the independent judgment of the experts which determines whether particular laws and policies raise questions of compatibility with the instrument in question. They do not necessarily accept the views advanced by NGOs.
A sidelight illustrating the paranoia of the government in regard to NGOs was the unprecedented request for its delegation to observe the informal meeting between some members of the Human Rights Committee and a number of Australian NGOs in July 2000. The NGOs made no objection.
Not content with their attack on NGOs, the Ministers questioned the independence and impartiality of the treaty bodies, and in particular CERD. They suggested at the press conference that criticisms of Australia by bodies which included members from Cuba and China need not be given credibility. The Ministers were well aware that members of treaty bodies do not represent their governments. They should also be aware that CERD includes members from the UK, the US (who was the rapporteur for Australia), and several other western democracies, and that its decisions are by consensus.
The Ministers also accused the treaty bodies of criticising minor abuses in countries like Australia, while ignoring serious violations in other countries. Such comments ignore the strong criticisms which the treaty bodies make of serious human rights violations, and trivialise the very significant human rights issues affecting indigenous people and asylum seekers, among others, which arise in Australia.
The statement of 29 August 2000 announced that the government would intensify its current efforts to reform the treaty committee system (hardly a new initiative), and would adopt a more ‘robust and strategic approach’ to its interaction with the treaty bodies. Its future engagement with those bodies would depend on the extent of effective reform. Four particular measures would be taken.
The first measure is that ‘reporting to and representation at treaty committees would be based on a more economical and selective approach’ where appropriate. Failing to comply with reporting obligations under the treaties is certainly ‘robust’ but is hardly calculated to improve the effectiveness of the system.
The second measure is that ‘Australia will only agree to visits to Australia by treaty committees, and requests from the Committee on Human Rights “mechanisms” for visits and the provision of information, where there is a compelling reason to do so’.
Most of the treaty bodies have no express mandate for visits, and no specific resources. The Human Rights Committee has made only one country visit, to follow-up on the very large number of communications from Jamaica. The Convention Against Torture, article 20, and the new Optional Protocol to CEDAW both make provision for visits with the consent of the state party. The Torture Committee has not asked to visit Australia.
Visits to Australia have been requested by Special Rapporteurs of the Commission on Human Rights (which operate separately from the treaty bodies). The Special Rapporteur for Religious Intolerance visited Australia in 1997. The Working Group on Arbitrary Detention asked to visit Australia in connection with the detention of asylum seekers, but abandoned the attempt recently, due to Australia’s failure to make arrangements for the visit. The mission to Australia planned by the Special Rapporteur on Racism in 1998 was cancelled for reasons outside the control of the Special Rapporteur and the government, and a visit in 2000 is being considered by the government.[16]
Seen in the light of events, the second measure does not seem to represent new policy but makes express the attitude of non-co-operation.
The third measure is that ‘Australia will reject unwarranted requests from treaty committees to delay removal of unsuccessful asylum seekers from Australia’. There was such a request in the case of Elmi, decided by the Torture Committee in 1999. The government objected to being asked to postpone the removals pending the decision of the communication. The Elmi case appears to have precipitated a move to withdraw from the individual complaints procedure of the Convention Against Torture.
Those concerns were, however, not mentioned as a basis for the treaty body review, and no opportunity was given for any external input on the issue, one of vital concern to failed asylum seekers who fear torture should they be sent home. The government has now made it clear that it will not necessarily respect a request by a treaty body to defer expulsion pending the determination of a communication, but will simply act as it thinks fit. Robust indeed, but likely to render the decision of the treaty body ineffective.
The fourth measure is that Australia will not sign or ratify the Optional Protocol to the CEDAW which establishes a complaints procedure for women. The Protocol came into force on 22 December 2000.
In the absence of a reasoned report, it is hard to understand the justification for this decision. The Minister later said that Australia had satisfactory procedures available to women. DFAT’s explanation was that the decision did not repudiate CEDAW itself, but reflected the view that Australia should not support the creation of a new complaints mechanism when it is unhappy about the way existing ones are operating.[17]
Neither ground is convincing. The decision seems both petty and pointless. It ignores the long-standing support given by Australia to the Protocol project. It runs counter to the aim of improving the effectiveness of the treaty bodies. Australian women will be denied international recourse in areas where the Convention has not been fully implemented in domestic law or is subject to exemptions. A potential example is access to IVF services. The further domestic laws move from the principles of the Convention, the less likely may be ratification in the future.
There is nothing superficial or hasty in the carefully chosen words of the treaty bodies’ committees. The government has not advanced reasons for not giving proper consideration to their observations.
Australia has a good human rights record. It has a strong and stable democracy, based on respect for the rule of law. The questions remain, however, whether Australia meets the human rights standards which we have promised to observe, whether there is adequate protection of all rights, and whether we accept accountability to our own courts or to independent international monitoring bodies.
In 2000 four separate treaty bodies identified a range of significant human rights issues where Australian law and practice are or appear to be incompatible with our international treaty obligations. The function of treaty bodies is to make such an assessment for every country on a wide range of issues ranging from torture to equality and freedom of expression.
No doubt, with more time and more resources, the treaty bodies could do their work more efficiently, and with fewer delays. But the real effectiveness of their work depends not on those factors but on whether states respond in good faith, by giving serious consideration to the committees’ opinions and by reviewing domestic laws and practices when this is recommended.
When Australia was called to account, the government failed to initiate discussion and review or to publish the committees’ comments, as requested. Instead, it rejected the views of the committees on issues such as indigenous rights and asylum seekers, it questioned the independence and credibility of the treaty bodies, and decided to limit its co-operation. It did this even in regard to the issue of mandatory sentencing, where it has acknowledged that human rights standards are not met.[18] It has failed to give reasoned and credible arguments to support these actions. It still remains unclear what actual reforms are wanted.
The Minister for Foreign Affairs later alleged that the treaty bodies had exceeded their functions; that they had been set up to ‘advise and assist’ state parties to fulfil their treaty obligations but were in practice sitting in judgment on them.
This comment ignores the fact that when a state party recognises the competence of a treaty body to express its views in individual communications, it must expect that in some cases the Committee will determine that the state has violated the rights of an individual. Even in the reporting process, a committee can hardly advise or assist without forming and expressing its views as to the level of compliance.
Member states of the UN have generally welcomed the initiatives of the treaty bodies to adopt, by consensus, concluding observations setting out the areas where there are concerns about the compatibility of domestic laws and procedures with treaty standards. To assert, as the government seems to do, that each state may interpret human rights standards as it thinks appropriate, without regard to the views of the independent monitoring body, is to promote chaos, rather than respect for the international rule of law.
It seems that there is a kind of ‘double speak’ in the government’s approach. When it says that it wants to make the treaty body system more efficient and effective and to ensure that it has a focus on serious human rights abuses, what it actually means is ‘hands off Australia’.
It must be doubted whether Australia’s attack has promoted the reform of the treaty bodies. Australia had been the leader of a group of like-minded states in discussing reform issues and putting forward proposals over the past few years. But, after its criticisms of the system, diplomatic sources in Geneva revealed that Australia had lost its leadership role in the reform group because of the possible conflict of interests involved.
The government’s package of ‘measures for reform’ brings into question whether Australia will ratify the two new Optional Protocols to the Convention on the Rights of the Child, one on Sale of Children, Child Prostitution and Child Pornography (aimed at the sexual exploitation of children) and one on the Involvement of Children in Armed Conflict (raising the age for recruitment and participation). Australia has always supported these protocols, which were adopted by the GA on 25 May 2000, but will the government now use the excuse that the treaty system is in need of reform to avoid ratification?
There must also be doubt as to whether Australia will ratify the proposed Optional Protocol to the Convention Against Torture, which provides for the treaty bodies’ sub-committee to undertake missions to the territory of a state party without the need for further prior consent to be sought. The draft is before a working group of the Commission on Human Rights.[19]
A good international citizen would show respect for the international human rights system. It would fulfil its treaty obligations in good faith and would give respect and due consideration to the comments and recommendations of the monitoring body. In doing this, it would reinforce the significance and universality of human rights standards and set an example for others to follow.
When a country like Australia promotes the idea that the system is flawed, that the state alone must be the arbiter of certain issues, that its views should prevail over those of the treaty bodies, and that NGO material should not be given proper attention, it sets a poor example.
Australia, by its unwillingness to be accountable for its human rights performance or to respect the views of the monitoring bodies, has lost its claim to be described as a good international citizen in the human rights area. One can only hope that this is a temporary situation.
References
[*] Elizabeth Evatt is a former member of the Human Rights Committee and Committee on the Elimination of Discrimination Against Women.© 2001 Elizabeth Evatt
[1] Evans, Gareth and Grant, Bruce, Australia’s Foreign Relations in the World of the 1990s, Melbourne University Press, 1991, p.145.
[2] Address, 10 December 1996 < <http://www.dfat.gov.au/hr/#speeches> >.
[3] Alston, Philip, Effective Functioning of Bodies Established pursuant to United Nations Human Rights Instruments, E/CN.4/1997/74, 27 March 1997. See also Alston, Philip and Crawford, James, eds, The Future of UN Human Rights Treaty Monitoring, Cambridge University Press, 2000.
[4] The Joint Standing Committee on Foreign Affairs, Defence and Trade, ‘Improving But …: Australia’s Regional Dialogue on Human Rights’, Parliament of the Commonwealth of Australia, June 1998, rec 17; Government Response, 1999.
[5] HRC, Concluding Observations on Australia, July 2000, 9 -12. Concluding Observations of the Committee on Economic, Social and Cultural Rights, Australia, 01/09/2000. E/C.12/1/Add.50.
[6] Toonen v Australia, 488/1992, March 1994, 1994 vol II.
[7] A v Australia 560/1993, decided April 1997.
[8] Sadiq Shek Elmi v: Australia, Communication No 120/1998. 25/05/99, CAT/C/22/D/120/1998.
[9] DFAT, Human Rights and Indigenous Issues Newsletter, No 11, July 2000.
[10] Sixteenth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, ‘CERD and the Native Title Amendment Act 1998’, Parliament of the Commonwealth of Australia, June 2000; (includes Report of the Non-Government Members, separately published as ‘Undertakings Freely Given, Australia’s International Obligations to Protect Indigenous Rights’).
[11] Downer, Alexander, 10 December 1996 < <http://www.dfat.gov.au/ hr/#speeches> >.
[12] Downer, Alexander, 29 August 2000 < <http://www.dfat.gov.au/ hr/#speeches> >.
[13] Concluding Observations by the Committee on the Elimination of Racial Discrimination on Australia, 24 March 2000, CERD/C/56/ Misc.42/rev.3.
[14] Human Rights and Indigenous Issues Newsletter, No 11, July 2000.
[15] Statement of 11 September 2000 <<www.lawcouncil.asn.au/unreview.doc>>.
[16] Report by Mr Glèlè-Ahanhanzo, Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, CHR 55th session, provisional item 6, E/CN.4/1999/15, 15 January 1999. For the 2000 visit see E/CN.4/2000/16, 10 February 2000; departmental briefing for non-government organisations about the government decision on human rights treaty bodies, on 31 August 2000.
[17] Departmental briefing for non-government organisations about the government decision on human rights treaty bodies, 31 August 2000.
[18] The Australian delegation told CERD in March 2000 that the government had asked WA and NT to change their laws, but had received no reply.
[19] See (E/CN.4/2000/58).
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