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DON CHIPP FOUNDATION EVENTS

40 Years of International Human Rights Law
13 December 2006

How Well is Australia Meeting its International Human Rights Obligations?: Mr John Pace

I would like to congratulate the organisers of this Forum for their insight in choosing to mark the anniversary of the adoption, by the General Assembly of the UN, on 14 December 1966, the text of the two International Human Rights Covenants.

Many would be familiar with the adoption of the UDHR on 10 December 1948 - and 10 December is celebrated - or commemorated, as some would say - all over the world as Human Rights Day. Most people have heard of the UDHR - but few are aware of these Covenants, which we are marking today.

How did human rights find its way into the Charter in the first place?

The political basis for the introduction of human rights law is found in a proposal put forward on 5 May 1945, by the four big powers of the time, (China, UK, USA and USSR) to amend the draft of the Charter that was to go to San Francisco. This amendment added - under the Chapter dealing with the Economic and Social Council - the provision "To make recommendations for promoting human rights and fundamental freedoms", and empowered the Council to set up a commission for the "... promotion of human rights,..." among others1.

The introduction of this element distinguished the new Organisation from its predecessor, the League of Nations, and through the introduction of human rights, amplified the dimensions of the new organisation from a purely inter-governmental body, to one that enabled outreach and interaction with individuals and more generally, civil society.

The Australian delegation played a key role in strengthening the focus on economic and social rights in the Charter. According to Mary Ann Glendon, "[Evatt's] Australian delegation argued that a permanent system of security could be effective only if it had a foundation in economic and social justice. Evatt especially stressed full employment. Referring to the role of the Great Depression in the rise of militaristic, totalitarian regimes in Germany, Japan and Italy, he wrote: 'The great threat to human freedom which we have been combating for five years arose out of and was made possible by an environment dominated by unemployment and lacking in freedom from want.' Widespread support for the Australian position led to strengthening the Charter's provision for an ECOSOC, making it a 'principal organ' of the UN alongside the Security Council."2

The introduction of human rights, and more specifically, the direct mandate to the ECOSOC to establish a Commission on Human Rights was an intelligent use of the power of sovereignty, since it recognised the international sharing of responsibility for the welfare of the individual through the development and application of common standards. The International Bill of Human Rights was to enshrine those standards.

On the strength of this provision of the Charter (Article 68), the Commission on Human Rights was set up to draft the International Bill of Human Rights. [That Commission was replaced by a Human Rights Council a few months ago.]

What does international human rights law look like today?

The Covenants, together with the UDHR, form the International Bill of Human Rights. The IBHR may be described as the umbrella for other human rights conventions, five of which are referred to as 'core' conventions essentially because they have the same system as the Covenants for monitoring their implementation by the States parties. Each one provides for a committee of experts elected by the States parties to carry out this monitoring, as we shall explain. These are:

  • The International Convention on the Elimination of all Forms of Racial Discrimination (CERD) - 1969;
  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) - 1981;
  • Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) - 1987;
  • Convention on the Rights of the Child (CRC) - 1990;<.li>
  • International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families - 2003.

Australia is a State party to all these conventions except the last one, on the protection of migrant workers and their families. As such, under these conventions, it has the obligation to present reports to the monitoring bodies established under each one of them.

Some of these conventions have been further strengthened by additional agreements, or protocols:

The International Covenant on Civil and Political Rights has two such protocols,

  • the first one which was adopted at the same time as the Covenant itself, envisages the possibility for the submission of written communication (read complaint) to the monitoring body - the Human Rights Committee - by individuals who claim to be victims of a violation of any of the rights spelled out in the Covenant, under certain conditions. [Individual complaints may also be made, under certain conditions, under the CERD, CAT , CEDAW and the Migrant Workers Convention].
  • the second one which came in to force in 1991, aims at the abolition of the death penalty.

Australia has ratified both these protocols.

The Convention Against Torture has one protocol, which came into force in June 2006. The objective of this protocol is "to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment." (Article 1)

Australia is not a party to this protocol.

The Convention on Prevention of Discrimination Against Women has one protocol since 2000. This protocol enables complaints to be made by individuals who allege violations of the provisions of the convention, similar to the Optional Protocol to the ICCPR which we have just referred to.

Australia is not a party to this protocol.

The Child Convention has two protocols:

  • one on the involvement of children in armed conflict, (2002, ratified by Australia on 26 September 2006. It should be recalled that Australia played an important role in putting this protocol on the agenda and in seeing it through);
  • the other on the sale of children, child prostitution and child pornography (also 2002, to which Australia is a signatory but is not a party).

Whereas the Universal Declaration was adopted as a non-binding instrument, as a 'standard of achievement', the Covenants - as are the other conventions - are legally binding and by becoming parties to them, States undertake certain legal obligations, including that of following the procedures involving in monitoring them, and by implication, respecting the outcome of these procedures.

This might explain why it took two years to draft the UDHR and 18 years to complete the two Covenants (even though the substantive content is the same), and why, after being adopted on 14 December 1966, it took a further 10 years for the first 35 countries to ratify them and thus to enable them to enter into force, in other words to become law. Furthermore, along the way, the content of the UDHR - which covered all human rights, civil, cultural, economic, political and social, was split into two groups, (economic, social and cultural rights, on one hand, and civil and political rights on the other), each forming the subject of a Covenant.

The implementation monitoring procedures are undertaken by a group of independent experts which they (the States Parties) elect and who hold office for a four year period. States then report to these monitoring bodies (every 2 years in the case of CERD, 4 years in the case of CEDAW and CAT, and every 5 years in the case of the Covenants and of CRC). All these conventions have been ratified by a substantial number of States3, except for the Migrant Workers Convention which is the most recent to come into force (38 States parties as of 6 December 2006).

From the forgoing, it may be appreciated that, when we speak of "international human rights law" and "international human rights obligations" of States, we are speaking about a formidable body of law worked out over the decades with the participation of the entire international community, and of civil society.

It is necessarily a dynamic process, evolving along with the continuing [ongoing] evolution in international relations.

The purpose of the treaty system is not merely to point out the gaps in conforming with the obligations entered into, but more so, to assist in addressing and redressing such gaps.

The preparation of the Covenants took place as the Cold War broke out, with its international polarisation and the accompanying constant threat of fresh conflict. The initial momentum waned as the drafting process was going on; for the Covenants this meant the separation of human rights into two groups, one group covering economic, social and cultural rights, and the other civil and political rights. This division considerably weakened and delayed the development of the notion of universality which is essential for international human rights norms to be understood and applied.

The emergence of the non-Aligned movement - formed in 1961 - served to dilute this polarisation and it brought to the UN and to its CHR, new energy and initiatives in standard setting and focus on their application. In the mid-sixties, the NAM countries played a critical role in the establishing of ad hoc fact-finding procedures which emerged to supplement and strengthen the formal implementation of the human rights conventions.

Another factor which served to dilute this polarisation during the same period was the emergence of new States as a result of the process of de-colonisation. This also affected the focus of international human rights law as it was being drafted. [For instance, Article 1 is identical in both Covenants; it enunciates the right to self-determination of all peoples - a priority concern for several countries.]

In hindsight, it may be said that the development of international human rights law and procedures has been wide-ranging in scope and outreach to the individual. Today, States dispose of a rich set of international standards to assist them in reaching common standards in protection of human rights. In so saying, the role of Australia during these formative years was especially important as it exercised a level of independence and freshness of spirit that served as a beacon for the weaker States.

Australia was a founding member of the CHR from 1947 to 1956. During this time, it played a major role in the drafting of the UDHR and of the Covenants, which the CHR sent to the ECOSOC and the GA in 1954, where they stayed until their adoption in 1966. One of the critical issues that was perhaps the most difficult - aside from the debates on whether or not to separate human rights into two Covenants - was the question of methods of implementation. The proposals were many and varied. But perhaps the most far reaching one - proven right fifty years later - was the Australian proposal for the establishment of an International Court of Human Rights in 1949. At the CHR's 5th session, Australia proposed that the Covenant should include provisions setting up such a court.

The proposed Statute was made up of 32 articles. The jurisdiction of the Court was to comprise of:
"(i) All disputes arising out of the interpretation and application of the Covenant on Human Rights referred to it by any Party to such Covenant;
(ii) All disputes arising out of the interpretation and application of articles concerning human rights in any treaty or convention between States referred to it by any party to such treaty or convention;
(iii) All matters concerning the observance of human rights by the parties to such Covenant or to any treaty or convention referred to it by the CHR."(Article 19)

As regards competence, the Statute (Article 17) envisages:

  1. The following may be parties in cases before the Court:
    (a) States;
    (b) Individuals;
    (c) Groups of individuals;
    (d) Associations, whether national or international.
  2. The Court, subject to and in conformity with its rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative."4

Australia continued to play a major role in the CHR between 1978 and 1987, and again from 1991 to 1996. It returned to the CHR from 2003 to 2005 when the CHR was replaced by the HRCouncil.

Having set out the law and put its development in its evolutionary context, we shall now take a look at the manner in which these procedures have been applied by Australia. Otherwise stated, how Australia has carried out its treaty obligations.

Since its first report under a convention (CERD) in 1976, Australia has submitted 33 reports to the six treaty bodies under the six respective treaties. The latest of these was to CEDAW earlier this year. Prior to that, it was CERD and CRC in 2005, with HRC, ICESCR and CAT in 2000.

It should be recalled that the function of the treaty bodies is to assist States to bring their national law and practice in line with the treaty obligations undertaken by them. They are not courts of law, not tribunals and they remain at all times of a complementary and not an adversarial, nature. As we said at the outset, their purpose is to enable States to reach common standards among themselves.

Until the mid-nineties, the communication between Australia and the treaty bodies was one of dialogue, and progress was made in regard to enabling Australia to address issues identified as needing attention - as most countries would. During the mid-nineties and since then, the tenor of the communications with the treaty bodies changed drastically, and at one point, from dialogue it descended to confrontation. The treaty bodies were viewed as interfering in domestic issues - an argument usually advanced by Governments when they are not versed in the nature and purpose of these bodies.

This new appreciation of the Government towards treaty bodies is epitomised by the comment of the Minister for Foreign Affairs on 29 August 2000, on prime time TV to the effect that " ... if a UN Committee wants to play domestic politics here in Australia, then it will end up with a bloody nose."5 That same day, the Foreign Minister, the Attorney-General and the Minister for Immigration and Multicultural Affairs announced that, "the Government will take strong measures to improve the effectiveness of the human rights treaty bodies."

A press release issued on that day spells out:

"The move is an outcome of the review of Australia's interaction with the UN treaty committee system, which was considered by Cabinet yesterday. The Government commissioned the review in March in response to our concerns with the approach taken by some UN committees to fulfilling their mandates."

The reasons for such a drastic change are complex. In March 2000, Australia, under a new government since 1996, presented a series of reports to treaty bodies such as CERD, CRC and the HRC. As is normal in such cases, these bodies shared their 'concerns' and made 'recommendations' to address these concerns. In 1999, the concentration of several reports to treaty bodies in a relatively short time was due to the fact that they had been delayed by the government, bringing about an accumulation in a short period, of reports that are usually spread over years. The 'concerns' and the 'recommendations' were therefore unusually numerous and concentrated. The Minister for Multicultural Affairs had gone to Geneva - as sometimes Ministers do - to present the report of Australia to CERD. The outcome of that meeting was not well received by the government and this could have been a possible reason for the "review" that the government announced - a review that was purely internal.

It is therefore of little surprise that the Ministers announced further that,

"The treaty review found that UN human rights treaty bodies need a complete overhaul especially:

(i)as regards the treaty committee system:

  • to ensure adequate recognition of the primary role of democratically elected governments and the subordinate role of non government organisations (NGOs);
  • to ensure that committees and individual members work within their mandates;
  • to improve coordination between committees; and
  • to address the current inadequate secretariat resources for research and analysis to support committees work; and

[(ii)as regards the international protection system:

  • to ensure that the Office of the United Nations High Commissioner for Refugees (UNHCR) and its Executive Committee (Excom) maintain their focus on their primary objectives;
  • to improve their operational effectiveness and responsiveness to states concerns; and
  • to enable states to reassert their common understanding of international protection obligations.]

Cabinet decided Australia's strategic engagement with the treaty committee system should be dependent on the extent to which effective reform occurs. In pursuit of reform the Government will take the following measures:

Australia will intensify work with other States on reform of the treaty committee system, including through a high level diplomatic initiative with Ministerial leadership and more strategic use of meetings of state parties, to address our concerns.

Within the framework of Australia's continuing commitment to international human rights standards and monitoring, the Government will adopt a more robust and strategic approach to Australia's interaction with the treaty committee system both to maximise positive outcomes for Australia and enhance the effectiveness of the system in general.

Australia will immediately implement a package of measures to improve our continued interaction with UN human rights treaty committees, including the following:
(a) reporting to and representation at treaty committees be based on a more economical and selective approach where appropriate;
(b) 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;
(c)Australia will reject unwarranted requests from treaty committees to delay removal of unsuccessful asylum seekers from Australia; and
(d) Australia will not sign or ratify the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which establishes a new complaints procedure.

[Australia will continue its high level campaign at Ministerial level to work with other states on reform of the UNHCR and its ExCom, as well as through a separate high-level diplomatic initiative.]

In addition the Government will:
[(a) undertake a comprehensive review of Australia's and other parties interpretation and implementation of the 1951 Refugees Convention and consider the need for remedial legislation;]
(b) establish a standing inter-departmental committee jointly chaired by DFAT and AGs to progress reform of the treaty committee system and coordinate future interaction with the treaty committees; and
[(c) establish an inter-departmental committee chaired by DIMA to coordinate implementation of the reform strategy outlined in paragraph (a) above].

Australia has long been an active proponent of reform of the committee system. We will build on this work and push for more intensive change. We will continue to work closely with other like-minded States and the UN.

Australia has a strong history of active support for the UN. We have a strong human rights record and we take our international rights and obligations seriously.

The Government believes these steps will ensure that Australia gets a better deal from the UN treaty committees. They will also strengthen the ability of the UN to deal with human rights issues. This will be a good result both in terms of furthering Australia's domestic interests and in ensuring the continued legitimacy and sustainability of the UN treaty committee system."

The reform of the treaty system was already on the books at that time - but not for the same reasons as those that presumably inspired the government's decision. Various proposals were - and are - being discussed, meant to enhance their efficiency in terms of monitoring the implementation of treaty obligations entered into by States.

Meanwhile, Australia has continued to report to treaty bodies - including CERD. In contrast with the official reaction at the time, the treaty bodies have continued to carry out their mandate. They have consistently complimented Australia on the professionalism of the reports presented to them as well as for the ongoing dialogue in connection with their preparation- as they had done before and since the change of government. They did point out from time to time that some reports were unduly delayed - for instance the report to the HRC which was taken up in 2000 had been delayed for 10 years, or the CAT, also in 2000, regarding a 6 year delay. Another feature of Australia's reporting to the treaty bodies was the input of non-governmental organisations and other institutions. This was not entirely appreciated by the government as may be ascertained from the press release of 29 August 2000. Since then, the hysterics seem to have abated and the work of the treaty bodies has continued.

Australia's human rights record in the treaty system reflects numerous issues that may be considered in two categories: issues having a constitutional or institutional connotation, and human rights issues directly concerning individuals or groups. [This latter category includes the determination of those individual complaints presented under the relevant procedure.]

Examples of issues that have constitutional or institutional aspects may be found in various reports, such as in the latest report from the CESCR, (September 2000)6. In its report, the Committee pointed out the fact that the Covenant has not yet been incorporated into the national law of Australia:

"In spite of existing guarantees pertaining to economic, social and cultural rights in [Australian] domestic legislation, the Covenant continues to have no legal status at the federal and state level, thereby impeding the full recognition and applicability of its provisions."...

"The Committee regrets that, because the Covenant has not been entrenched as law in the domestic legal order, its provisions cannot be invoked before a court of law. ...

["The Committee strongly recommends that [Australia] incorporate the Covenant in its legislation, in order to ensure the applicability of the provisions of the Covenant in the domestic courts. The Committee urges the [Australia] to ensure that no conflicts occur between Commonwealth and state law in this respect. The Committee encourages [Australia] to follow the High Court's position concerning "legitimate expectations" arising from the ratification of the Covenant.]7

Again, the latest report of the HRC in July 2000 makes the following point on the question of a Bill of Rights for Australia:

"The Committee is concerned that in the absence of a constitutional Bill of Rights, or a constitutional provision giving effect to the Covenant, there remain lacunae in the protection of Covenant rights in the Australian legal system. There are still areas in which the domestic legal system does not provide an effective remedy to persons whose rights under the Covenant have been violated.

[Australia] should take measures to give effect to all Covenant rights and freedoms and to ensure that all persons whose Covenant rights and freedoms have been violated have an effective remedy (art. 2).

[While noting the explanation by the delegation that political negotiations between the Commonwealth Government and the governments of states and territories take place in cases in which the latter have adopted legislation or policies that may involve a violation of Covenant rights, the Committee stresses that such negotiations cannot relieve the State party of its obligation to respect and ensure Covenant rights in all parts of its territory without any limitations or exceptions (art. 50).]

[The Committee considers that political arrangements between the Commonwealth Government and the governments of states or territories may not condone restrictions on Covenant rights that are not permitted under the Covenant."]8

CEDAW made similar references to the need to review relations between the Commonwealth and the States and Territories to ensure better implementation of the Convention. In its last report (2006) it referred to this issue in the following terms: "Noting that the federal Government, under its "external affairs" jurisdiction, has power to legislate for the implementation of treaty obligations in all states and territories, and noting that states and territories have jurisdiction over certain areas covered in the Convention, the Committee is concerned that there are inadequate structures and mechanisms to ensure effective coordination and consistent application of the Convention in all states and territories."

The Committee recommended that Australia "promote and guarantee the implementation of the Convention throughout the country, including through its power to legislate for implementation of treaty obligations in all states and territories."9

The reports of the treaty bodies are structured along almost identical lines. They usually open with some general remarks. They then set out positive aspects, followed by the 'concerns' and where appropriate they make recommendations. In almost all reports on Australia's submissions, the treaty bodies have pointed out the professionalism with which the reports are prepared as well as various positive developments. [All reports have consistently acknowledged Australia's standing.]

The latest reports of the treaty bodies have addressed human rights issues directly concerning individuals or groups. We shall cite a selection from the records of the six treaty bodies as contained in the latest session of each treaty body. We shall start with the two Covenants and then follow with the other four treaty bodies.

ICCPR:10

Referring to the principle of self-determination of indigenous peoples', the HRC expressed concern that "sufficient action had not been taken" to ensure the principle of indigenous peoples' exercising meaningful control over their affairs. It recommended that Australia "should take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources."

The HRC added: "The Committee is concerned, despite positive developments towards recognizing the land rights of the Aboriginals and Torres Strait Islanders through judicial decisions (Mabo, 1992; Wik, 1996) and enactment of the Native Title Act of 1993, as well as actual demarcation of considerable areas of land, that in many areas native title rights and interests remain unresolved and that the Native Title Amendments of 1998 in some respects limit the rights of indigenous persons and communities, in particular in the field of effective participation in all matters affecting land ownership and use, and affects their interests in native title lands, particularly pastoral lands.

The Committee recommends that the State party take further steps in order to secure the rights of its indigenous population under article 27 of the Covenant (on protection of minotirites). The high level of exclusion and poverty facing indigenous persons is indicative of the urgent nature of these concerns. In particular, the Committee recommends that the necessary steps be taken to restore and protect the titles and interests of indigenous persons in their native lands, including by considering amending anew the Native Title Act, taking into account these concerns.

The Committee expresses its concern that securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance for such minorities, which must be protected under article 27, are not always a major factor in determining land use."

Other issues relating to the protection of indigenous people were the 'stolen children', and the replacement of ATSIC whilst ensuring continuing protection of indigenous rights. In addition, the HRC expressed concern on the question of mandatory sentencing and the need "to reassess the legislation so as to ensure that all Covenant rights are respected". Mandatory detention of "unlawful noon-citizens" including asylum seekers in the view of the HRC raised questions of compatibility with article 9 paragraph 1 of the Covenant, which prohibits arbitrary detention. The Committee expressed its 'concern' at Australia's policy, in this context of mandatory detention, of not informing the detainees of their right to seek legal advice and of not allowing access of non-governmental human rights organizations to the detainees in order to inform them of this right. The HRC urged Australia to reconsider its policy of mandatory detention of with a view to instituting alternative mechanisms of maintaining an orderly immigration process.

The HRC referred to a review within Parliament of the Australia's refugee and humanitarian immigration policies in the context of which the Minister for Immigration and Multicultural Affairs has issued guidelines for referral to him of cases in which questions regarding Australia's compliance with the Covenant may arise. The HRC continued, "The Committee is of the opinion that the duty to comply with Covenant obligations should be secured in domestic law. It recommends that persons who claim that their rights have been violated should have an effective remedy under that law."

ICESCR:11

Addressing economic social and cultural rights of the indigenous peoples in Australia, the CESCR expressed its "deep concern that, despite the efforts and achievements of Australia, the indigenous populations of Australia continue to be at a comparative disadvantage in the enjoyment of economic, social and cultural rights, particularly in the field of employment, housing, health and education".

It "noted with regret" that the amendments to the 1993 Native Title Act had affected the reconciliation process between the Australia and the indigenous populations, "who view these amendments as regressive."

Other issues addressed by the CESCR included, the effects of the Workplace Relations Act of 1996 which favoured individual negotiation with employers over collective bargaining, "thereby reducing the role of the Australian Industrial Relations Commission."

The Committee 'noted with concern' the situation of homeworkers, who are predominantly women, that paid maternity leave is not provided for in law and that Australia had not ratified ILO Convention No. 103 concerning maternity protection. It regretted the absence of an officially set poverty line in Australia which deprived the Committee of the criteria it needs to determine the progress achieved over time by Australia in its efforts to reduce poverty.

The Committee referred to the Residential Tenancies Act 1987 (in New South Wales) that did not provide adequate security of tenure and protection against eviction and arbitrary rent increases.

The Committee noted 'with concern' that no steps had been taken to respond to its 1993 recommendation to strengthen human rights education in formal and non-formal curricula.

CEDAW:12

CEDAW raised a number of issues in its latest report (2006). On the general question of discrimination, it referred to the Sex Discrimination Act, (which allowed for the adoption of special measures to ensure equality of opportunity) and expressed its concern that the Government did not support the adoption of targets or quotas to promote greater participation of women, particularly indigenous women and women belonging to ethnic minorities, in decision-making bodies. It recommended that the Government do so in line with the provisions of the Convention and its own general recommendation, "to further increase the number of women in political and public life and to ensure that the representation of women in political and public bodies reflect the full diversity of the population, particularly indigenous women and women belonging to ethnic minorities".

The Committee also addressed the problem of violence against women, trafficking in persons especially for prostitution, While noting the efforts of the Government to address violence against women at all levels of authority, the Committee "remained concerned about the continuing prevalence of violence against women, as well as by the low rates of reporting, prosecutions and convictions in sexual assault cases. It is concerned that laws that protect victims of violence and require perpetrators of domestic violence to leave the family home are not regularly enforced. It is also concerned about the high levels of violence against women, particularly domestic violence, in indigenous, refugee and migrant communities."

It also addressed problems related to maternity leave with pay or comparable social benefits, bulk billing for health services and the disparity in the application of this in the rural areas, to the detriment of rural women.

On immigrant, refugee and minority women and girls, the Committee expressed concern that based on their ethnic background, "they may be subject to multiple forms of discrimination with respect to education, health, employment and political participation. It is also concerned that women belonging to these groups seem to be particularly vulnerable to violence".

The Committee urged more effective measures to eliminate discrimination against refugee, migrant and minority women and girls and to strengthen efforts to combat and eliminate xenophobia and racism in Australia, particularly its impact on women and girls.

Significantly, it encouraged the Government to ratify the Optional Protocol to the Convention - something that the Government announced it would not do when it announced its "reform" intentions in August 2000.

CAT:13

Among the concerns expressed by the Committee was in regard to the absence of appropriate review mechanisms for ministerial decisions to expel, return, or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. (Article 3 of the Convention). It recommended the establishment of such a mechanism of independent review of such cases.

Other issues that were raised included the use by prison authorities of instruments of physical restraint that may cause unnecessary pain and humiliation, allegations of excessive use of force or degrading treatment by police forces or prison guards; allegations of intimidation and adverse consequences faced by inmates who complain about their treatment in prisons.

The CAT also raised the issue of the legislation imposing mandatory minimum sentences, "which has allegedly had a discriminatory effect regarding the indigenous population (including women and juveniles), who are over-represented in statistics for the criminal justice system."

CRC:14

The reports of the CRC are among the most comprehensive. Among other details, in the part dealing with positive developments it singles out:

  • The establishment of the Department of Family and Community Service and the Stronger Families and Communities Strategy initiative;
  • The establishment of "Families Australia", a national body seeking to improve coordination between the federal, state and territory Governments in policies, programmes and services affecting families, young people and children;
  • The National Plan of Action against the Sexual Exploitation of Children, "Tomorrow's Children" of 2000;
  • The National Plan of Action to Eradicate Trafficking in Persons of October 2003; The launching of a new National Framework for the protection of human rights in Australia on 23 December 2004.
  • Referring to its previous recommendations, the Committee noted (with satisfaction) that most of its concerns expressed and recommendations (CRC/C/15/Add.79) made upon the consideration of Australia's initial report (CRC/C/8/Add.31) in 1997 had been addressed.

It noted that some concerns and recommendations had been "insufficiently or partly addressed regarding, inter alia, the special problems still faced by indigenous children, corporal punishment, the spread of homelessness among young people, children in immigration detention, juvenile justice and the disproportionately high percentage of indigenous children in the juvenile justice system."

In addition, it pointed out that there was still no comprehensive policy at the national level for children that specifically addressed human rights issues that may impact on them.

Addressing specific issues, the CRC mentions "the existing discriminatory disparities affecting Aboriginal and Torres Strait Islander children, especially in terms of provision of and accessibility to basic services...that discriminatory attitudes and stigmatization continue to exist, especially towards certain groups of children such as asylum-seeking children and children belonging to ethnic and/or national minorities, including Arabs and Muslims. In this respect, the Committee is also concerned at the possible side effects that the enforcement of the anti-terrorism legislation may have on certain groups of children."

The report addresses civil rights and freedoms, specifically aspects relating to preservation of identity (referring to the "Bringing Them Home" report of HREOC), access to appropriate information (such as problems related to exposure of children to violence, racism and pornography, especially through the Internet). Also in this context, the question of corporal punishment, family environment and alternative care for children without parental care, as well as violence, abuse and maltreatment.

On health related issues the report addresses issues affecting children with disabilities, access to health-care services (especially for indigenous children), adolescent health, HIV/AIDS, and standard of living particularly in regard to consequences of economic hardship on children's health.

The report addresses the problem of children in immigration detention, of homeless children, of sexual exploitation and trafficking and of substance abuse, including by children belonging to indigenous groups.

CERD:15

CERD is the first convention with a monitoring mechanism to come into force (1969). The elimination of racial discrimination and pre-emptive measures related thereto was among the few issues on which the CHR had reached consensus. Apartheid in South Africa, racial segregation in some States in the USA, the emergence of the newly independent ex-colonial countries who had experienced discrimination first hand in one form or another, all these factors gave CERD the momentum that brought it to maturity as it were, ahead of the rest of the pack - including the flagship Covenants that we are marking today. [Similar considerations apply, mutatis mutandis, to the Genocide Convention which has no monitoring mechanism, but which was adopted in December 1948, the day before the UDHR. The Genocide Convention was a natural reaction to the horrors of the Second World War which had only been discovered a few years before. In other words, the actions of the international community are often the result of reaction to shock. Again, the Rome Convention in 1998 setting up the ICC - a project that had languished in the International Law Commission for decades, received a determinant stimulus from the horrors of Rwanda and the former Yugoslavia.]

Racism and racial discrimination remains a constant threat to peace and security; thus CERD has a 2-year reporting cycle - the most frequent of all the seven treaty bodies. Relations with CERD were traditionally constructive, and consistent with the purpose of such procedures, Australia had benefited from the concerns and recommendations from CERD.

The amendments to the 1993 Native title Act thus attracted an immediate response from CERD who in August 1998, exceptionally, formally requested the Government of Australia "to provide it with information on the changes recently projected or introduced to the 1993 Native Title Act, as well as on any changes of policy in the State party as to Aboriginal land rights and in the functions of the Aboriginal and Torres Strait Social Justice Commissioner. The Committee wishes to examine the compatibility of any such changes with Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.

The Committee wishes to consider the information, in the presence of a representative of the State party, at its fifty-fourth session (1-¬19 March 1999) and would therefore appreciate receipt of this information by 15 January 1999".

Australia complied with the request for additional information16 and on 18 March 1999 CERD adopted another decision in which it confirmed its view on the compatibility of the proposed amendments with Australia's obligations under the Convention.

"...While the original Native Title Act recognizes and seeks to protect indigenous title, provisions that extinguish or impair the exercise of indigenous title rights and interests pervade the amended Act. 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.

The Committee notes, in particular, four specific provisions that discriminate against indigenous title holders under the newly amended Act. These include the Act's "validation" provisions; the "confirmation of extinguishment" provisions; the primary production upgrade provisions; and restrictions concerning the right of indigenous title holders to negotiate non-indigenous land uses.

These provisions raise concerns that the amended Act appears to wind back the protections of indigenous title offered in the Mabo decision of the High Court of Australia and the 1993 Native Title Act. As such, the amended Act cannot be considered to be a special measure within the meaning of articles 1(4) and 2(2) of the Convention and raises concerns about the State party's compliance with articles 2 and 5 of the Convention.

The lack of effective participation by indigenous communities in the formulation of the amendments also raises concerns with respect to the State party's compliance with its obligations under article 5(c) of the Convention. ... the Committee, in [an earlier] general recommendation XXIII, had stressed the importance of ensuring 'that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent.'"

Later in the year (19 August 1999) after hearing further input from Australia, the CERD reaffirmed its decision and decided to remain seized of the matter. Ten days later, on 29 August 1999 the Government announced its decision to "Improve the Effectiveness of United Nations Committees" which I have described. It is therefore not surprising - although sad - that Australia did not return to the CERD until 2004.

CERD has maintained much of its concern on the Native Title Act amendments and more generally the compatibility of these and other measures with Australia's treaty obligations. It recommended that Australia, "work towards the inclusion of an entrenched guarantee against racial discrimination in its domestic law".

It noted with concern "the persistence of diverging perceptions between governmental authorities and indigenous peoples and others on the compatibility of the 1998 amendments to the Native Title Act with the Convention. The Committee reiterates its view that the Mabo case and the 1993 Native Title Act constituted a significant development in the recognition of indigenous peoples' rights, but that the 1998 amendments roll back some of the protections previously offered to indigenous peoples and provide legal certainty for Government and third parties at the expense of indigenous title..."

["The Committee is concerned about information according to which proof of continuous observance and acknowledgement of the laws and customs of indigenous peoples since the British acquisition of sovereignty over Australia is required to establish elements in the statutory definition of native title under the Native Title Act.] The high standard of proof required is reported to have the consequence that many indigenous peoples are unable to obtain recognition of their relationship with their traditional lands (art. 5)."

"While noting the improvement in the enjoyment by the indigenous peoples of their economic, social and cultural rights, the Committee is concerned over the wide gap that still exists between the indigenous peoples and others, in particular in the areas of employment, housing, health, education and income (art. 5)".

It also referred to the problem of mandatory sentencing (in Western Australia) and deaths in custody.

It also expressed its concern that proposed reform of HREOC "could significantly undermine its integrity, independence and efficiency."

CERD also referred to "reports that prejudice against Arabs and Muslims in Australia has increased and that enforcement of anti-terrorism legislation may have an indirect discriminatory effect against Arab and Muslim Australians." It made recommendations to address this issue.

CERD expressed concern at reports of biased treatment of asylum seekers by the media. It recommended that Australia review "the mandatory, automatic and indeterminate character of the detention of illegal migrants. It wishes to receive statistical data, disaggregated by nationality and length of detention, relating to persons held under such detention, including in offshore detention centres."

As may be seen from all this, when we speak of international human rights obligations, we are speaking of a constant monitoring mechanism. This mechanism serves to support the efforts of governments in establishing universal standards and by so doing, enhance the prospects of harmony and diminish the chances of conflict.

They enter into the most minute details; to those who are unfamiliar with them, they may appear as excessively invasive. They have little choice but to be so, for that is what they have been asked to do by the very States that they monitor. In the case of Australia, like those States who have ratified the optional Protocol to the ICCPR, this extends to complaints of violations of human rights by individuals. A total of 97 cases have been presented to the HRC under this procedure since Australia became party to the Protocol in 1987, and in 15 of them, the HRC found that there was a violation of one or more articles of the CCPR.

What conclusion is one to draw from all this? Australia has a special place in the evolution of international human rights norms and in their continuing development. This is mostly due to the record that Australia enjoyed in the international community. The constructive approach taken to its treaty obligations had made Australia a model to follow in using such international machinery. In recent years, Australia has chosen to re-trench and to relegate its position of international leadership in favour of a more limited, isolated focus. This has led to a situation where in recent years, the policies and practices followed in regard to issues such as discrimination, (manifesting itself in the manner in which indigenous issues, issues relating to asylum seekers, issues relating to terrorism were handled), were not consistent with Australia's treaty obligations. Similar policies were developed and followed by the USA.

In all, over the years, the answer to the question which is the topic of this reflection today is: Australia has done pretty well - but it can do much better.

Thank you

John P. Pace
Sydney, 13 December 2006

1 Doc G/29 5 May 1945 The United Nations Conference on International Organization
2 Mary Ann Glendon, "AWorld Made New - Eleanor Roosevelt and the Universal Declaration of Human Rights" Random House p.14
3 As of 6 December 2006, the following was the status of the ratifications of the following instruments: ICESCR 155; ICCPR 160; Op Protocol to ICCPR 109; CERD 173; CEDAW 185 Opt Prot to CEDAW 83; CAT 144; CRC 193.
4 E/1371 - E/CN.4/350 23 June 1949 - Report of the CHR on its 5th session.
5 The comment was made in response to a question put to Mr Downer on the ABC News show "the 7.30 Report" in regard to recommendations of the CERD.
6 These are the latest treaty body reports to date: HRC/ICCPR: 24 July 2000, ICESCR: 1 September 2000, CEDAW: 3 February 2006, CAT: 21 November 2000, CRC: 20 October 2005, CERD: 14 April 2005.
7 ICESCR: E/C.12/1/Add.50, 1 September 2000
8 HRC 24 July 2000 A/55/40 paras 498 - 528
9 CEDAW/C/AUL/CO/5 3 February 2006
10 A/55/40,paras.498-528. 24 July 2000
11 : E/C.12/1/Add.50, 1 September 2000
12 CEDAW/C/AUL/CO/5 3 February 2006
13 A/56/44,paras.47-53. 21 November 2000
14 CRC/C/15/Add.268, 20 October 2005
15 CERD/C/AUS/CO/14, 14 April 2005
16 CERD/C/347, 22 January 1999

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