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We ignore UN rights report at our peril

President Kim Dae-jung of South Korea recently commented, upon being awarded the Nobel Peace Prize, that we live in the "age of democracy and human rights".

This could be taken further. We live in the age of legal enforcement of these rules, and failure to observe them carries increasingly serious ramifications.

The European Union makes adherence to democratic standards and human rights an "essential element" of co-operation agreements entered into with non-EU states, and improvement in China's willingness to observe human rights is central to its application to join the World Trade Organisation. This is why it would be folly for the Howard Government to continue to ignore the views of United Nations bodies which have condemned Northern Territory mandatory sentencing laws.

Last March, the UN Committee on the Elimination of Race Discrimination observed that Northern Territory sentencing schemes "appear to target offences that are committed disproportionately by indigenous Australians".

The notion of a criminal justice system that singles out an individual ethnic group for particularly harsh treatment is unprecedented among countries that ostensibly adhere to democratic standards and human rights. The seriousness of the UN committee's charge is borne out by past findings of the European Commission of Human Rights. It has held that publicly to single out an individual ethnic group for differential treatment under the criminal law would amount to an affront to human dignity, and could constitute inhuman and degrading treatment.

As well, the UN High Commissioner on Human Rights, Mary Robinson, after investigating mandatory sentencing, was moved to remind the Australian Government of its obligations under the Convention on the Rights of the Child. It provides, among other things, that a deprivation of liberty of children under the age of 18 should be imposed only as a last resort, and should be for the shortest appropriate time.

These findings are understandable when a close look is taken at the Northern Territory legislation. The Sentencing Amendment Act (No2) 1996 introduced a compulsory jail term for certain property offences, including petty property offences. A two-week sentence is imposed for a first "strike" offence, 90 days for a second, and one year for a third, with it being possible to work up a "strike" in the most trivial of circumstances.

The abolition of judicial discretion is compounded by the fact that the act features bizarre drafting, and exempts, in an attached schedule, property offences which non-indigenous Australians are better known for infracting than indigenous Australians. They include credit card fraud, white-collar crime and shoplifting. A 1999 amendment to the act, which allows a first strike offender to avoid jail in highly exceptional circumstances, does not appear to have had any substantial effect.

The impact of mandatory sentencing on indigenous communities is compounded by further potential breaches of their rights under international humanitarian law.

Aborigines continue to be processed through a criminal justice system that has failed to provide translation into indigenous languages, and the accused may have little knowledge of English, or at least not enough to follow a criminal proceeding brought against them. The fact that this extraordinary breach of the right to fair trial has subsisted into the 21st century provides a convincing example of the need to supplement existing Australian law to enforce fundamental human rights.

Mandatory sentencing has raised potential problems in terms of race discrimination and policing practices. In April this year, on an ABC Four Corners program entitled "Go to Jail", one police officer stationed in an Aboriginal community observed that "part of the reason mandatory sentencing hits these small remote communities so hard is that, while the clear-up rate for burglary in Darwin is 15 per cent, everyone here gets caught". The reasons why "everyone" gets caught in indigenous communities are likely to be manifold, but they at least warrant investigation. The mandatory sentencing laws may place offenders from indigenous communities on a treadmill of incarceration. A one-year sentence will be imposed for every offence committed after the third strike, no matter how trivial the offences may have been, and even though the accused may lack the linguistic ability to understand either the laws in place or the legal process they have been subjected to.

There are at least three options for improving human rights protection in Australia, and they could be pursued in tandem. First, as we celebrate 100 years of our Constitution, debate might be renewed on the proposal to supplement the Constitution with a bill of rights (Australia is now the only Western democracy without one). Second, consideration should be given to establishing a geographically based system to protection of human rights as in other parts of the world. Third, in the run-up to the Commonwealth Heads of Government Meeting in Brisbane in October, an investigation might be made into enhancing the role of the Commonwealth in securing human rights protection.

The Australian Government is going in the opposite direction to international trends. In August, three senior ministers - Alexander Downer, Daryl Williams and Philip Ruddock - announced plans for paring back the activities of UN human rights committees, even though the UN system is the only international human rights body in which Australia participates. This included an announcement that "Australia will only agree to visits to Australia by treaty committees and requests from the Committee on Human Rights for visits and information when there is a compelling reason to do so". Given the trends in other parts of the world towards improving mechanisms for the enforcement of human rights and democratic principles, the Government's initiatives are unlikely to gain widespread support, and will accelerate Australia's isolation among democracies committed to the "era of enforcement". They may also be costly in terms of loss of goodwill in the international arena.

Indeed, there are firm indications that some of our northern neighbours are warming towards acceptance of the place of domestic human rights scrutiny in international diplomacy. On December 13 the countries of ASEAN signed a joint communique with the EU acknowledging their mutual respect for democratic principles and human rights, and the two regions have indeed held an annual human rights dialogue since 1996. Australia has no such dialogue, and no change has been made to this stance since 1997, when Australia refused to sign a co-operation agreement with the EU because it contained a human rights clause, despite the fact that for the past eight years the EU has been Australia's major trading partner, with Australia running a trade deficit with the EU of more than $11 billion. The increasing link between trade and human rights means that Australia can ill afford to ignore any future findings of UN human rights committees.

Bipartisan support for improving human rights protection in Australia is essential. In the "age of democracy and human rights" it would be, at the very least, rash for the Federal Government to dismiss human rights initiatives as a cynical ploy emanating from the left side of politics. Rather, the problem should be addressed in the light of the contemporary interdependence of human rights with international political, social, and trade relations.

Angela Ward is Associate Professor in International Law at Essex University, and was junior counsel to Cherie Booth, QC, in the mandatory sentencing complaint brought against the Australian Government in the United Nations in July. A response to the complaint is expected in 2001.

Source: The Sydney Morning Herald

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