Kinslor, Joanne --- ""Killing Off" International Human Rights Law: an Exploration of the Australian Government's Relationship With United Nations Human Rights Committees" [2002] AUJlHRights 16; (2002) 8(2) Australian Journal of Human Rights 79
[∗] BA, LLB (Hons) (The University of Sydney) Joanne is currently employed as a solicitor at Christopher Levingston & Associates. Her areas of practice are migration law and criminal law.
[1] The Government outlined its decision in a Joint media release by the Australian Minister for Foreign Affairs, Alexander Downer; Attorney-General, The Hon Daryl Williams AM QC MP; Minister for Immigration and Multicultural Affairs, The Hon Philip Ruddock MP on Tuesday, 29 August 2000. ‘Improving the Effectiveness of United Nations Committees’ Tuesday 29 August 2000 FA97 www.dfat.gov.au/media/releases/foreign/2000/fa097.html2000
[2] Specific areas of criticism included the inefficiency of committee processes, the lack of co-ordination between committees and the fact that committees were too demanding upon state resources.
[3] This criticism has two broad strands. First, that committees failed to recognise the primary role of democratically elected governments in favour of non-governmental organisations (NGOs). Second, that committees focused upon minor human rights issues in Australia, which generally has a good human rights record, while neglecting major human rights breaches in other countries and that the number of issues for which Australia has been criticised is higher than for countries, such as the People’s Republic of China, that do not have democratically elected governments.
[4] Thus Australia was able to disagree with the ICCPR’s determination in A v Australia (1997) and did not act in accordance with its recommendations. See Charlesworth (1999) pp. 68-9
[5] I use the term “nation” to refer to Australia as a community of people with a sense of solidarity and a common culture and history. Whereas I use the word “state” to refer to Australia as a political entity with a defined territory over which it has internationally recognised authority.
[6] I will be using “Nomos and Narrative” and “Violence and the Word” in Minow et al (1992)
[7] With respect to the CAT, refer to Article 22 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. CEDAW’s complaints procedure is explained by Della Torre (2000) p181
[8] Exceptions to this rule are provided when domestic remedies are “unreasonably prolonged” or “unlikely to bring effective relief”. See art 22 5(b) CAT and CEDAW Optional Protocol art 4(1). However, in the case of CAT these exceptions have been interpreted quite strictly. In M.A. v Canada CAT Communication No. 22/1995 the applicant argued that his chance of success was almost non-existent because of binding jurisprudence and the review process in Canada. The UN Committee Against Torture (UNCAT) stated that it could not accept this argument, because it could not assess whether domestic remedies would be successful, but only if they were “proper remedies”. UNCAT explained that “special circumstances” were needed before the domestic remedies requirement could be waived.
[9] In claiming that Australia’s sovereignty is threatened the Government emphasised UN committees as courts of appeal. For example, the Minister for Foreign Affairs, Mr Downer, likened the UN committee system to Privy Council appeals. He stated: “The Labor Party...were opposed to Privy Council appeals. But the Labor Party in government were in favour of United Nations appeals from the Australian parliament, from Australian courts and from Australian institutions”. (Downer Q 2000)
[10] Avenues are still available to individuals who wish to make complaints against Australia under the International Convention on Civil and Political Rights (ICCPR) or the Convention on the Elimination of Racial Discrimination (CERD).
[11] Article 3 states that “No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he (sic) would be in danger of being subjected to torture”.
Australia also has non-refoulement obligations to torture victims under the International Convenant on Civil and Political Rights (ICCPR), arts 6 and 7, which Australia ratified on 13 August 1980. These provisions are discussed in Hearn and Eastman (2000) p. 216
[12] Refer to UN Treaty Bodies Database at http://www.unhcr.ch/tbs/doc.nsf. This issue was raised in Parliament by Michael Danby (Danby 2000)
[13] This summary comes from Emilia Della Torre (2000) at 182-3
[14] Generally, women make up 52% of the population. Refer to Australian Bureau Statistics website at www.abs.gov.au
[15] It is not mandatory for communications to be unanimous. Refer to UN High Commissioner for Human Rights Fact Sheet 17. www.unhcr.ch/html/menu6/2/fs17.htm
[16] Facts set out in Rintoul and Haslem (1998) p.4. Refer also to facts as set out in Sadiq Shek Elmi v Australia Communication No 120/1998, 17 November 1998
[17] With respect to this issue, the comments of the Government about the UN’s criticisms of Australia’s mandatory detention of asylum seekers without valid Australian visas are noteworthy. In response to the UN’s statements that criminals were treated better than asylum seekers in Australia, the Government is reported to have accused the relevant UN delegation of being “outsiders” who “exacerbate(ing) health problems inside camps by demanding access to detention facilities.” (Millett and Bradley 2002: 2)
[18] For example, the Government has stated that it will “reject unwarranted requests from treaty committees to delay removal of unsuccessful asylum seekers from Australia.” It is my view that part of the Government’s justification for such actions is that it cannot allow individual humanitarian considerations to override the implementation of, what it views as, the orderly management of a worldwide crisis in people movements. On this point, it is instructive to note Prime Minister John Howard’s response to questions about Australia’s policies for dealing with asylum seekers when he was in Germany during July 2002. Mr Howard’s response was that Australia’s actions are reasonable, proper and justifiable in the circumstances and in accordance with Australian public opinion and Australia’s needs. AM ‘Howard Questioned Over Asylum Seekers’ 2 July 2002 Australian Broadcasting Corporation News Online www.abc.net.au/am/s596132.htm
[19] This is the same approach that the Government took in response to the UN’s criticisms of Australia’s detention centres in July 2002. Mr Downer (Liberal Party) stated on that issue “Whatever the rights and wrongs of these issues, we will decide them for ourselves, not have bureaucrats in Geneva decide them for us, unlike you (Labour Party) who want to run off to Geneva and have a lot of United Nations officials decide these things for our country. That is the difference between you and us. You rush to Geneva and get your policies made in Geneva – we decide these things here.” (Downer 2002)
[20] see also my discussion of how Australia has failed to ensure that it meets it non-refoulement obligations under CAT (Kinslor 2000: 161)
[21] Tim Lester in The 7:30 Report (2000a) 29 August. However, this is not an exhaustive list.
[22] With respect to UN committees generally, Opposition party members noted that UN committees reiterated what NGOs and government institutions had already found. See Bartlett (2000)
[23] Senator Barney Cooney “United Nations Human Rights Committee System” (2000) 31 August Australian Federal Parliament: Senate Hansard at 17131
[24] ‘Australia’s Relations with the United Nations in the post Cold War Environment’ (2001) 22 March Australian Federal Parliament: Joint Committees at 535
[25] Andrew Thompson is a Backbencher and Former Minister of the Liberal Party. During a television interview Prime Minister Howard did not condemn this comment, but said “Everybody has a different way of expressing things.” (The 7:30 Report 2000b)
[26] Hirst and Thompson (1996) explore the idea that economic globalisation necessitates conventional politics will become less significant and that increasing importance will be placed on the politics of morality.
[27] The state’s control over territory gives it continued control over populations which can still be contained within borders, in comparison with financial and media institutions. (Hirst and Thompson 1996: 2)
[28] Transnational economic institutions rely upon regulation that they cannot create themselves. Companies are also advantaged by being able to make use of the nation-state’s common cultural understandings. (Hirst and Thompson 1996: 186)
[29] Hirst and Thompson note that it is “non-economic organisations with a strong ideological mission” that are the most successful at creating a transnational culture with an alternative loyalty to national loyalty. (Hirst and Thompson 1996: 186)
[30] This should be qualified on the grounds Cover reminds us that systems are never wholly paideic or purely imperial. It is multiplicity of meaning that destabilises power.
[31] Sarat is correct at this point only in so far as he allows for the fact that violence within Cover’s works places outer limits upon interpretations, as discussed above.
[32] C. Sidoti ‘Australia’s Relations with the United Nations in the Post Cold War Environment’ 22 March 2001 Australian Federal Parliament, Joint Standing Committee on Foreign Affairs, Defence and Trade: Joint Committees Hansard at 535
[33] At this point I have reverted to Cover’s use of the word ‘law’. Please refer to text under the heading “Norms, legal norms, legal meaning and law” above.