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Evatt, Elizabeth --- " [2007] HRightsDef 29

In Retrospect: Australia’s role as a global human rights citizen

Elizabeth Evatt

Good beginnings

The promotion of human rights has long been a significant part of Australia’s international policies. Australia was a founder member of the UN Commission on Human Rights (CHR) and served many terms on that body. Australia made important contributions to the drafting of the UDHR, the Covenants and other human rights instruments. It played an active role in drafting the 1998 Rome Statute of the International Criminal Court, and, after some anxiety, was among the first group of countries to ratify it. It has been an active participant in the Third Committee of the United Nations General Assembly, which deals with human rights issues.

Over many years, Australia claimed a leadership role in its support for the UN. Recently, it was a strong supporter of the reforms agreed to at the 2005 UN World Summit, including the adoption of the ‘Responsibility to Protect’ principle;[1] the creation of a Peacebuilding Commission, an intergovernmental advisory body aiming at developing a coordinated approach to post-conflict peacebuilding; and the replacement of the Human Rights Committee with the new UN Human Rights Council (HR Council), which some hope will be less political and more effective. Australia has also made significant contributions to the peacekeeping activities of the UN.

In recent years, however, certain developments in Australia’s policy and practice call into question its commitment to the UN and the multilateral human rights processes that it pursues. Australia’s growing emphasis on bi-lateral dialogue as the “most effective way to address the human rights situation in other countries”[2] threatens to divert attention and resources away from the UN human rights system as the principal international supervisory mechanism. It has been lukewarm at best in supporting important new instruments (see below).

The implementation gap

A gap has developed between Australia’s international commitments on human rights and its domestic implementation of those obligations. International human rights standards represent global values, but they are intended to have effect in the domestic jurisdiction. Failure to respect rights in the domestic environment casts doubt on the genuineness of any stated international commitment. One area of contradiction concerns Australia’s relationship with the treaty bodies, which monitor compliance by States of their human rights treaty obligations. Australia is a party to six major human rights instruments. It reports on its implementation of its obligations under those instruments to the six treaty bodies and accepts the individual complaint procedures under the ICCPR (International Covenant on Civil and Political Rights), CERD (Convention on the Elimination of all forms of Racial Discrimination) and CAT (Convention Against Torture).[3] Although Commonwealth legislation implements CERD and CEDAW,[4] other important human rights standards, especially those under the Covenants, lack enforceable remedies under Australian law. Covenant provisions are not reflected in legislation, and we have no national bill of rights.

These gaps could be compensated for, to some extent, if Australia paid heed to the views of the treaty bodies regarding areas of noncompliance. Here, however, there is a contradiction. In the Third Committee, Australia praises the treaty bodies for encouraging better compliance through their advice to States, and emphasises their key role in addressing the “implementation gap”.[5] It speaks of their vital role in achieving practical and enduring improvements to human rights at the national level.[6]

But when it comes to our own domestic environment, it is a different story. Several treaty bodies have expressed concern about the implementation gap in Australia and have recommended that remedies be available for violations of rights.[7] Recently, the Special Rapporteur on Human Rights and Counter Terrorism urged Australia to legislate to implement the ICCPR and to provide remedies to protect rights and freedoms.[8] But, apart from the Toonen decision in 1994,[9] Australia has consistently rejected the views and recommendations of these Committees, in both the reporting procedure and in communications.

This is not to say that the views of the treaty bodies have to be accepted absolutely; they are not legally binding. But as the considered view of expert bodies, they should be given serious consideration, if the process is to have any meaning whatsoever. Australia’s hymn of praise for treaty bodies in the UN rings hollow indeed in the absence of such consideration.

The CERD affair

Australia’s attitude to the views of the treaty bodies took a further downturn after the review of Australia’s report by CERD in March 2000. The Committee’s concluding observations raised a number of concerns, including the removal of Indigenous children from their families, mandatory sentencing and the continuing discrimination experienced by Indigenous people.[10] The then Minister for Immigration and Multicultural Affairs, Philip Ruddock, angrily accused CERD of unwarranted criticism and of a blatantly political and partisan approach.[11]

The recriminations which followed led to government review of Australia’s interaction with the treaty body system.[12] Australia threw itself into a reform initiative at the international level, aimed at improving co-ordination and harmonisation of the treaty bodies’ work, addressing inadequate resources and reducing the reporting burden on States parties.

“In recent years, however, certain developments in Australian policy and practice call into question its commitment to the UN and the multilateral human rights processes that it pursues. Australia’s growing emphasis on bi-lateral dialogue as the “most effective way to address the human rights situation in other countries” threatens to divert attention and resources away from the UN human rights system as the pricipal international supervisory mechanism.”

Australia’s tenure of the Presidency of the CHR in 2004 helped it to advance its reform project. It sponsored workshops on treaty body procedures and substantially increased its voluntary contribution to the Office of the United Nations High Commissioner for Human Rights. These efforts led to some useful outcomes, including the adoption of a draft common core document in 2006 enabling States to include in one document information relevant to the implementation of several human rights instruments. While many of the reform goals pursued by Australia had already been identified within the UN system,[13] the energy and resources it allocated certainly helped the process along.[14]

Other responses by Government to the CERD affair were less positive, including an attempt to limit the influence of NGOs on the treaty bodies. The Government expressed the view that the treaty bodies rely too much on NGO material rather than on the factual information provided by “democratically elected” governments. This leads, Australia argued, to a focus on minor, marginal issues in democratic countries and to neglect of major human rights breaches in countries that don’t have democratically elected governments. Australia wanted the treaty bodies to consider the role of NGOs as subordinate to that of democratic governments.

This somewhat paranoid approach is consistent with the Government’s attempt to restrict the advocacy role of NGOs in Australia. But it is surprising, as Australia has usually supported the role of NGOs in the protection of human rights.[15] The treaty bodies themselves are generally very positive about NGOs, regarding their contributions as crucial.[16] The role of NGOs is still being considered, though Australia has now accepted that its role is constrained to putting forward ideas, and that it cannot tell independent treaty bodies how to do their job. It may also have realised that the treaty bodies have to deal with each State party on an equal basis, and according to the particular issues relevant to that State.

The CERD affair also prompted Australia to adopt a policy of refusing visits to Australia by treaty bodies and other special monitoring procedures of the UN human rights bodies unless there were exceptional grounds. The Government has now reversed the presumption against such visits, and there have been several since. However, Australia is not among the 56 States which have extended an open invitation to the special procedures,[17] which is surely a minimum indication of good intent.

Other contradictions

There are other contradictions between Australia’s international stance and its domestic policies. In regard to refugees, Australia’s good record in resettling “off-shore” refugees through the UNHCR programs is outweighed for many by its harsh treatment of ‘unauthorised arrivals’ who seek asylum in this country. Australian detention policies, its redefinition of national territory, and its resort to off-shore and overseas processing with limited access to legal advice, all raise issues about compliance with our international obligations. Australia’s detention practice was, in fact, found to violate Covenant obligations by the HRC in 1997 - views which were rejected by the Government.[18]

“Prime Minister Howard was heard to suggest that the reintroduction of the death penalty could be considered in Australia at state level.”

Australia has long been a strong opponent of capital punishment in the UN. It was among the first to ratify the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty,[19] and has co-sponsored resolutions in the CHR calling on States to abolish capital punishment.[20] Australia also raises the death penalty in its bilateral dialogues. It has always argued strongly for the non-application of the death penalty to Australian citizens overseas.

However, there are signs of wavering on this issue. Prime Minister Howard was heard to suggest that the reintroduction of the death penalty could be considered in Australia at state level,[21] a clear violation of our international commitment. Howard went against Australia’s established policy when he openly accepted the death penalty for Bali bomber Amrozi[22] and for Saddam Hussein[23] on the basis that what other countries do with the death penalty was ‘other countries’ business’. If Australia stands by its recognised international policy, namely that States that still maintain the death penalty should “abolish the death penalty completely and, in the meantime, to establish a moratorium on executions”, there can be no room for any exceptions.

Australia is also out of step with leaders such as Tony Blair and Kofi Annan who have called for the Guantanamo Bay detention centre to be closed down,[24] following a report by UN Human Rights experts in February 2006.[25] David Hicks’ case has made it abundantly clear that, despite its claim that democratically elected governments are the best at protecting human rights, the elected Australian Government has little understanding of such basic human rights as the right to a fair trial without delay, and to humane treatment of detainees. The US military commission system, which the Australian Government said would deliver fairness and justice, was later condemned as unfair and as acting contrary to international law by the Supreme Court of the US. But there was no concession on this point by our government.

The ratification gap

Australia’s human rights credentials are further undermined by its refusal to ratify the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) ,[26] which provides for individual complaints against governments to be lodged at the international level, despite its earlier enthusiastic support for the project. Following the CERD affair, the decision not to ratify this Protocol was linked to Australia’s concerns with the operation of the treaty bodies.[27] The policy persists, despite the claimed success of the reform initiative.

Australia has similarly failed to ratify the Optional Protocol to the Torture Convention, in force since 2006. It had opposed the Protocol before its adoption. Under the Protocol, a sub-committee of CAT can decide to visit places where people are deprived of their liberty, without the specific consent of the State Party concerned and without wellfounded indications of torture.[28] As Australia now no longer objects in principle to visits by UN human rights bodies, one of its stated reasons for non-ratification has been removed. Nevertheless, the policy persists largely on the basis that torture is not relevant to the Australian context and that Australia should desist from ratification of instruments while it continues to work for reform of the system.

Australia recently disappointed Indigenous communities by joining in the decision of the Third Committee to delay consideration of the Declaration on the Rights of Indigenous Peoples for up to 12 months.[29] After many years drafting, the Declaration had been adopted by the HR Council in June 2006. Australia’s position is hard to understand. While professing support for the Declaration, it continues to press its concerns about, inter alia, the provisions relating to self-determination.

Summing up

At the international level, Australia has made positive contributions to the advancement of human rights. But there are some cracks in the facade. There are contradictions and inconsistencies which threaten to diminish Australia’s standing as a global human rights citizen.

Elizabeth Evatt is Honorary Visiting Professor at the Faculty of Law UNSW, Commissioner of the International Commission of Jurists, and former member of the Human Rights Committee and the Committee on the Elimination of Discrimination Against Women.


[1] GA Res. 60/1. 2005, 16 September 2005 paras 97, 98: the Security Council may consider action where a State fails in its duty to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

[2] Department of Foreign Affairs and Trade, (1997) In The National Interest: Australia’s Foreign and Trade Policy White Paper (AGPS, Canberra); Department of Foreign Affairs (2003) Advancing the National Interest: Australia’s Foreign and Trade Policy White Paper (AGPS, Canberra).

[3] The ICCPR procedure was ratified in 1991, and those under CERD and CAT in 1993.

[4] Via the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984.

[5] eg Australia’s Statement to UNGA’s Third Committee, 24 October 2005.

[6] Statement by Australia to Third Committee, on behalf of Australia, Canada, New Zealand, Norway and Chile, 7 November 2003

[7] eg HRC Concluding Observations on Australia, July 2000, Report for 2000, A/55/40, §§ 514, 515; Concluding Observations of CESCR on Australia, 01/09/2000, E/C.12/1/Add.50; Conclusions and Recommendations of CAT on Australia, 21 November 2000, para 7 (b).

[8] Australia: Study on Human Rights Compliance while countering Terrorism, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (Martin Scheinin) A/HRC/4/26/Add.3, 14 December 2006, para 65.

[9] Toonen v Australia, 488/1992, March 1994, HRC Report, 1994 vol

II. The Human Rights (Sexual Conduct) Act 1994 (Cth) gave effect to the views of the HRC which considered that Tasmanian legislation declaring sexual activity between men unlawful constituted an arbitrary or unlawful breach of privacy, contrary to article 17 of the ICCPR.

[1] Concluding Observations by the Committee on the Elimination of Racial Discrimination on Australia, 24 March 2000, CERD/C/56/Misc.42/ rev.3.

[2] Partly reported in CERD/C/SR.1393 (Summary Record), 29/03/2000; also SR.1395; Concluding Observations on Australia, 19/04/2000, CERD/C/304/Add.101; E. Evatt, “Australia’s performance in human

rights” (2001) Vol 26(1) Alternative Law Journal 1, 15; see also Spencer Zifcak, Mr Ruddock Goes to Geneva, UNSW Press, 2003.

[1] Joint Ministerial Press release of 29 Aug 2000; DFAT, Reform of the United Nations Treaty Body System: Australian Initiatives, March 2006

[2] eg, Philip Alston and James Crawford (eds) The Future of UN Human Rights Treaty Monitoring, Cambridge University Press, 2000; Anne F Bayefsky (ed) The UN Human Rights Treaty System in the 21st century, Kluwer Law International, 2000.

[3] DFAT, Reform of the United Nations Treaty Body System: Australian Initiatives.

[4] DFAT, Australia’s National Framework for Human Rights: National Action Plan, 2004.

[5] Report of 18th meeting of Chairpersons, June 2006, para 32

[6] Countries having extended a standing invitation to Special Procedures are listed on the OHCHR web site, http://www.ohchr.org/ english/bodies/chr/special/invitations.htm.

[7] A. v. Australia, 560/1993, decided April 1997; in the view of the HRC, the prolonged mandatory detention of asylum seekers was arbitrary.

[8] Adopted by GA Res 44/128 15 December 1989; in force 11.7.91.

[9] eg CHR Res 2004/67, Report of 60th Session, p 244.

[10] Margo Kingston, ‘Howard to the States: Capital Punishment your call’ (Response to the Prime Minister The Honourable John Howard MP’s Interview with Neil Mitchell on Radio 3AW on August 8), Sydney Morning Herald August 8, 2003.

[11] Michael Walton, Australia’s Policy on the Death Penalty, NSW Council for Civil Liberties, March 2003, http://www.nswccl.org.au/issues/ death_penalty/aust_policy.php.

[12] Cynthia Banham, ‘Saddam got a fair hearing, says Howard’, The Sydney Morning Herald, 7 November 2006.

[13] Colin Brown, ‘PM finally calls for Guantanamo to close’, The Independent, 17 March 2006.

[14] Situation of detainees at Guantánamo Bay, Joint report by Human Rights Experts (Chairperson of the Working Group on Arbitrary Detention, Ms Leila Zerrougui; Special Rapporteur on the independence of judges and lawyers, Mr Leandro Despouy; Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak; Special Rapporteur on freedom of religion or belief, Ms Asma Jahangir; Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr Paul Hunt), E/CN.4/2006/120, 15 February 2006.

[15] In force since December 2000; 86 parties ratified as at February 2007.

[16] Joint Ministerial Press release of 29 Aug 2000.

[17] Adopted in 2002, in force June 2006; 27 parties as at February 2007. Ratification was not recommended by the Joint Parliamentary Committee on Treaties, Report 5: Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, March 2004.

[18] UNGA Third Committee, 28 November 2006.