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Facing the wrong way on human rights

By Sarah Pritchard

31 July 2000 - Australia is displaying increasing ambivalence towards the international human rights regime. Such ambivalence has been manifest in tardiness in complying with international reporting obligations and the rejection of a series of adverse findings by independent UN bodies.

On July 5, on the eve of celebrations to commemorate 100 years of the passage of the Commonwealth of Australia Constitution Act by the British Parliament, the International Secretariat of Amnesty International in London expressed concern at Australia's withdrawal from active human rights diplomacy and co-operation with UN human rights bodies.

This trend has been discernible for several years. In 1997, Australia resisted efforts by the European Union to include a standard human rights clause in a framework trade agreement, rejecting as "impertinent" any interference in Australia's sovereign affairs. The same year, the Committee on the Elimination of Discrimination Against Women called on Australia to "resume its active and visible participation in international forums on women's equality".

Also in 1997, Australia "disagreed" with the adverse decision of the UN Human Rights Committee in the Port Hedland Detention Centre case. In December of the same year, Australia was named in the Human Rights Committee's annual report to the UN General Assembly as one of a handful of countries, including Gambia, Mali, Somalia and Rwanda, in "serious default" of reporting obligations under the Covenant on Civil and Political Rights. This was the first time a Western country had been so named. Our third periodic report had been due in 1991, our fourth report in 1996.

In March last year, the UN Race Discrimination Committee, CERD, considered the 1998 amendments to the Native Title Act pursuant to its early warning procedure. Again, Australia enjoyed the dubious distinction of being the first Western country cited pursuant to this procedure. The committee observed that "while the original 1993 Native Title Act was delicately balanced between the rights of indigenous and non-indigenous title holders, the amended Act appears to create legal certainty for governments and third parties at the expense of indigenous title". Australia's response was to reject the committee's comments as "an insult to Australia and all Australians" because they were "unbalanced" and failed to understand Australia's system of democracy.

Earlier this year, CERD considered Australia's 10th and 11th periodic reports, due in 1994 and 1996. The committee expressed concern about mandatory sentencing schemes in Western Australia and, in particular, the Northern Territory. The committee observed that the schemes targetted offences committed disproportionately by indigenous Australians, especially in the case of juveniles, with a racially discriminatory impact. The committee suggested that the Federal Government consider measures to override Territory laws and to rely upon the external affairs power with regard to State laws. In response, the Foreign Minister, Mr Downer, warned that the UN would "end up with its nose bloodied" if it continued to meddle in Australia's affairs. A "whole of government review" of the UN human rights treaty system was subsequently announced.

Australia's recent stoushes with the UN's treaty-based bodies have increased awareness within Australia of the UN human rights system. There is no doubt these bodies are in need of reform; faced with a dramatically increased workload, they are among the most poorly resouced bodies in the UN system. Surely the challenge for Australia is not to talk of bloodied noses, but to work for a stronger, more effective system.

Why does there continue to be such resistance within Australia to human rights analysis and scrutiny? Perhaps, as Justice Michael Kirby has suggested, because Australia is one of the few countries to stand substantially outside the body of international human rights jurisprudence which has been developing since 1945.

Unlike Canada, New Zealand, South Africa and Britain, Australia has no bill of rights. Nor are we subject to the jurisdiction of any regional human rights mechanism. Where international human rights standards have been enacted domestically, this has occurred in a piecemeal and somewhat desultory manner.

Significant steps to address Australia's detachment from the international discussion of human rights were taken with the acceptance in 1991 and 1993 of optional procedures enabling individual complaints to the Human Rights Committee and CERD. It is these very procedures which are the subject of the Government's current review.

Since 1945, international discourse about human rights has had a profound impact on national legal systems and jurisprudence. Human rights norms operate beyond national borders, and condition and curb the absolute sovereignty of the state. Within international development, economic and financial institutions there is increasing recognition of the significance of human rights. The World Bank's recent Comprehensive Development Framework departs from policies based on narrow and outdated interpretations of its articles of agreement. After much resistance, the UN Development Program has finally affirmed linkages between its development activities and international human rights standards.

At the World Economic Forum in Davos last August, UN Secretary-General Kofi Annan proposed a Global Compact, based on principles drawn from the Universal Declaration of Human Rights, key international labour standards and the Rio principles on environment and development.

At UN headquarters last Wednesday, global leaders from business, labour and civil society met to adopt the Global Compact. The business partners have agreed to become public advocates for the compact, to join the UN in partnership projects and to put the compact's principles into practice in their own corporate domains. While the compact has provoked scepticism, the trend is unmistakable. There exists a framework of international standards and expectations which cannot be disregarded. It would be foolhardy to believe that an offhand approach to international human rights obligations and a dismissive attitude to the treaty system would have no repercussions in Australia's multilateral and bilateral relations.

In 1948 Australia proposed the establishment of an International Court of Human Rights and Australia has since earned praise for its constructive role in building and strengthening international human rights machinery. This makes the recent hostility towards international supervision of our own performance all the more regrettable. In the absence of more effective domestic machinery for the protection of human rights, it can be expected that Australia will continue to face international scrutiny.

As Amnesty said from London: "A constitution lacking human rights guarantees is nothing to celebrate. Human rights protection in Australia largely remains subject to an outdated British-Australian 'gentlemen's agreement' that international standards do not need to be enshrined in law." Offended pronouncements on Australia's human rights record as "second to none" are, at best, beside the point.

Dr Sarah Pritchard, a Sydney barrister, teaches human rights law at the University of NSW.

Source: Sydney Morning Herald

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