Australia in the dock at the UN


Human rights watchers held their collective breath early last month, when a delegation from Australia appeared before the United Nations’ Committee on the Elimination of all Forms of Racial Discrimination (CERD). Australia is a party to the international treaty outlawing racial discrimination and the delegation was appearing before the Committee to report on the nation’s progress in eradicating it.

The reason for this intake of breath was that on the last occasion an Australian delegation appeared before the Committee in 2000, the two parties fell out spectacularly. The Committee issued a highly critical report on race relations in this country and the Government responded with a searing attack on the entire UN human rights treaty system. The Committee concluded that Australia was going backwards, its protection of human rights in this sphere having noticeably fallen away. The UN treaty system, the Government responded, was sorely in need of overhaul and criticism of its record on human rights was misconceived and misplaced.

Subsequently, the Government had announced a series of measures designed to make clear its displeasure and to provoke a rethink. Australia, it announced, would be more economical and selective in reporting to UN human rights committees. It would admit UN committees and rapporteurs who wished to review the protection of human rights only if there was a compelling reason to do so. It would reject ‘unwarranted requests’ from treaty committees to delay the removal of unsuccessful asylum-seekers. It would press for the reform of the treaty system.

Perhaps most importantly, by way of retaliation, the Government announced that it would not sign on to a new protocol to the treaty for the elimination of discrimination against women. The protocol would have allowed Australian women to take their complaints of discrimination to the UN for examination where all domestic remedies had been exhausted.
These measures in turn were not received well at the UN. The head of the UN’s Treaty Section remarked that:

It is important to remember that criticism is not levelled for the sole purpose of criticising a country. The criticism is levelled for the purpose of improving in this case, the human rights framework that is applicable to all countries in the world and the ultimate loser would be the international human rights framework, if a country were not to take such criticism seriously … and necessary action taken domestically.

Alexander Downer responded in rather less measured terms when he told the ABC that:

If a UN Committee wants to play domestic politics here in Australia, then it will wind up with a bloody nose.

All eyes then were on the Australian delegation when it returned five years later to present its most recent report to CERD. The clash lived up to expectations. The delegation was not led on this occasion by Phillip Ruddock. His insensitivity and underestimation of the Committee had been in part responsible for the falling out in 2000. (The Attorney-General’s lamentable performance is described in my book Mr Ruddock Goes to Geneva, UNSW Press, 2003.) Instead Mike Smith, Ambassador to the UN in Geneva, stepped up to the plate.

He began cordially but soon adopted the strident, dismissive approach of his predecessor. Admittedly Smith’s task was difficult. After all, this was the first time Australia had appeared before the Committee since a range of controversial policies relevant to an analysis of Australia’s race record had been implemented. These included the extension of mandatory detention, the creation of the ‘Pacific Solution’, the introduction of the temporary protection visa system, the advent of anti-terror laws, the cutbacks to the Human Rights and Equal Opportunity Commission (HREOC), the abolition of ATSIC and the failure to adequately address the seemingly intractable problem of Aboriginal disadvantage.

Smith, however, was upbeat. He pointed out to the Committee that comprehensive legislation outlawing racial discrimination, and in some states racial hatred, had been introduced. The Government had developed a new National Framework for Human Rights. This set governmental priorities for enhancing the enjoyment of human rights and included a wide range of programs for indigenous Australians. Similarly the Government had launched a new multicultural policy designed to strengthen community harmony and, at the same time, value diversity. A Charter of Public Service in a Culturally Diverse
Society had been set in place which required all government services to be attuned to the needs of people from different ethnic and linguistic backgrounds.

Smith acknowledged that inequality and disadvantage among indigenous peoples persisted. This he blamed on the historical legacy of dispossession and marginalisation and the clash between ‘traditional values and the inescapable demands of the modern world’. Nevertheless, there had been successes. The percentage of Aboriginal children in secondary education had increased to 40 per cent. Indigenous unemployment, while still too high, had decreased. Home ownership had risen, household overcrowding had decreased and infant mortality had fallen by 25 per cent.

For reasons best known to himself, or perhaps to the Government that instructed him, Smith then chose to launch a scathing attack on the Committee. The Government, he said, had been particularly disappointed with the Committee’s previous, concluding observations. It had given ‘cursory treatment to complex issues and largely ignored the significant progress made in Australia on indigenous issues’. Worse still, the Committee’s observations had reflected an unquestioning acceptance of the arguments of non-governmental organizations. Further, it was quite unreasonable for the Committee to make recommendations with respect to Aboriginal reconciliation, native title, state mandatory detention laws, and resource allocation to address indigenous disadvantage. These were beyond its remit and were matters properly the subject of democratic deliberation and decision in Australia.

In the subsequent exchanges, Committee members, who almost without exception are independent human rights experts, were clearly unimpressed. One described the Ambassador as exceptionally rude. Another commented on the irony of Australia attacking the opinions of non-governmental organisations when it had itself criticised other governments in Latin America and communist Eastern Europe for doing exactly the same. The Committee’s rapporteur noted that the views expressed by the Ambassador were neither shared by Australia’s former human rights commissioner nor by a recent parliamentary inquiry. The whole point of drawing on information from non-governmental sources and UN mechanisms, he said, was to enable the Committee to obtain a more complete and balanced view.

Unsurprisingly then, the Committee’s concluding observations on this occasion retained their critical character. The Committee welcomed racial hatred legislation, progress in enhancing the economic and social rights of indigenous people, the implementation of diversionary programs to keep indigenous young people out of gaol, the abrogation of mandatory detention legislation in the Northern Territory and the adoption of the public service charter.
It then proceeded to enumerate fifteen areas of continuing concern.

The most significant of these were the absence of any constitutionally entrenched guarantee with respect to racial discrimination; the failure of the Commonwealth and some states to enact legislation outlawing racial hatred; the discriminatory nature of native title legislation; the wide gap that exists between indigenous peoples and others in the areas of health, housing, employment, education and income; the striking over-representation of indigenous people in the prison population; the mandatory detention of asylum-seekers — particularly women, children, unaccompanied minors and stateless people; the almost total rejection by the Government of the comprehensive recommendations of the Council for Aboriginal Reconciliation; and the radical downsizing of the Human Rights Commission. In short, Australia emerged again with a bloodied nose.

What then should be made of all this? It is a striking fact that amidst all the criticisms levelled against Australia by not only this UN Committee but many other similar bodies, the Government has not once acknowledged the validity of a single criticism. This is a pity. Relatively speaking, Australia’s human rights record remains satisfactory. It would do no harm and probably some good if we admitted openly that there have been problems and that there is a genuine desire to address them. Instead, however, the Government has chosen to shoot the messenger.

Why might this be so?
The most straightforward explanation would be that the UN’s criticisms have been misguided and consequently that the Government has been right to reject them. Such a view, however, cannot reasonably be maintained in the face of the progressive intensification of international, political criticism of Australia’s human rights performance and the force of independent, international and domestic legal opinion that contradicts the Government’s positions — particularly as these relate to indigenous peoples and people seeking asylum.

This is not to deny that some UN criticism has been misplaced. In the present imbroglio, for example, the Committee’s understanding of Australia’s constitutional arrangements has sometimes been awry. Its criticism of what it has seen as discriminatory immigration policy similarly has not always been well founded. Nor is it to deny that the UN treaty committee system is in need of reform — the case for reform is compelling.

Nevertheless, the Government’s refusal to admit even the most minor infraction of its international obligations in the face of informed and concerted, legal and political censure would appear to require a more persuasive account of its anti-UN stance.

From another perspective, it may be that the dynamics of domestic political disagreement hold the key. The Government’s criticism of the UN can legitimately be seen as yet another example of wedge politics. To attack the UN over human rights is calculated to alienate the socially progressive wing of the Labor opposition while appealing to its blue-collar affiliates who can be expected to be unimpressed by ‘foreign’ condemnation. The political advantages of such a strategy are obvious.

The pervasive sense of physical insecurity felt by many Australians following September 11 events appears to me, however, to constitute the most persuasive source of explanation. In the post September 11 world, it is not to the UN but to the US that many Australian eyes have turned. In response, the Howard Government has aligned itself ever more closely with the US and Britain. There has been a disengagement at many different levels from countries and cultures that do not resemble our own. A new unilateralism is abroad, one which is deeply popular here because it returns Australians to a more secure and comfortable identification with nations and peoples ‘like us’. The disengagement has spilt over into relations with international institutions of which the UN is the prime example.

The US has never been a good UN citizen. For years it did not make its designated financial contribution to the organisation. It does not recognise the jurisdiction and authority of the International Court of Justice. It has failed to ratify a raft of international human rights and environmental conventions. It was a signal absentee from the list of nations establishing the International Court. In going to war against Iraq in the absence of a specific Security Council resolution it took itself beyond the reach of international law altogether.

In a boyish eagerness to court American favour, it is plain that the Australian Government has decided that it is acceptable for its behaviour to be informed by a similar sense of patriotic inviolability. As the Prime Minister put it, in words reminiscent of those he uttered with respect to the repulsion of prospective refugees:

I mean in the end we are not told what to do by anybody. We make our own moral judgments I’m not going to cop this country’s human rights name being tarnished in the context of any domestic political argument … Traditionally these matters are the prerogative of states.

In this political environment, then, the Howard Government safely makes hay with multilateral organisations like the UN which seek to constrain Australia’s sovereign discretion. Australia’s commitment to the observance of universal human rights standards, and its co-operation with the international institutions established to monitor them, has been one regrettable casualty of this populist, foreign policy position.

Human Rights and Equal Opportunity Commission: Information concerning Australia and the United Nations International Convention on the Elimination of All Forms of Racial Discrimination – link here

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