Human rights challenges in Australia

Chris Sidoti*
September 2003

Australia and the international system

For fifty years Australia sought to establish its leadership in promoting human rights work domestically and internationally. Australia played an important part in building the international human rights system from the beginning. In 1948 it was one of the eight nations chosen to take responsibility for drafting the Universal Declaration of Human Rights, along with the five permanent members of the UN Security Council (China, France, the USSR, the United States and the United Kingdom) and Lebanon and Chile. Its Minister for External Affairs at the time, Dr H V Evatt, was President of the General Assembly when the Declaration was adopted. Australia was recognised as being in the forefront of nations committed to the development of the new international legal regime that could protect the human rights of all people. It played significant roles in the negotiation of all the human rights treaties, cooperating with other states with like minds when it came to better protecting human rights. It played especially important roles in relation to the Convention on the Rights of the Child and the Statute of the International Criminal Court. In both cases the negotiation of these new treaties was in jeopardy, close to failure, when Australia led major initiatives to reach agreement and complete the task of drafting and approving the texts.

Beyond drafting new human rights treaties Australia and Australians have been prominent in international human rights forums. Several eminent Australians have been elected expert members of human rights treaty committees. Australia’s role in UN forums was so positive that in March 2000 the Secretary General of the United Nations described it as “a model member” of the UN.

Since then, however, Australia has stopped being "a model member" and joined the ranks of the staunchest critics of the very mechanisms we have been so instrumental in establishing, the ranks of those who would tear down what has been so carefully and arduously constructed. The intemperate rhetoric of some ministers, including the most senior, and Australia’s recent voting record have aligned Australia with states with appalling human rights records.

Australia has received considerable international attention for its practice of compulsory detention of asylum seekers. In May 2002 a representative of the UN High Commissioner for Human Rights, Justice P N Bhagwati, a former Chief Justice of India, visited the Woomera detention centre on behalf of the High Commissioner. The Australian Government was hostile to the visit, delaying it when it was first requested and then restricting its scope as much as possible. When Justice Bhagwati delivered his report late in June 2002, he was subjected to severe personal criticism, his comments dismissed as emotive and misconceived and his integrity impugned. There was no interest in serious dialogue or in careful examination of Justice Bhagwati’s comments.

Each of the six key human rights treaties has a committee of independent experts to monitor compliance with the treaty’s obligations. Over the last three years Australia’s performance of its commitments has been criticised repeatedly by every one of these six committees:

• by the Human Rights Committee established under the International Covenant on Civil and Political Rights, in relation to mandatory sentencing of offenders and mandatory detention of unauthorised arrivals
• by the Committee established for the International Covenant on Economic Social and Cultural Rights, in relation to indigenous disadvantage
• by the Committee established under the Convention Against Torture and other forms of Cruel, Inhuman or Degrading Treatment or Punishment, for its treatment of asylum seekers and conditions in prisons, especially for indigenous people
• by the Committee established under the Convention on the Elimination of all Forms of Racial Discrimination, in relation to native title, mandatory sentencing and criminal justice generally, past policies of removing children and reconciliation
• by the Committee established under the Convention on the Elimination of all forms of Discrimination Against Women, for perceived downgrading of women's rights
• by the Committee established under the Convention on the Rights of the Child, in relation to the mandatory sentencing of children.

In addition other mechanisms within the international human rights legal system have criticised Australia, most recently the Working Group on Arbitrary Detention established by the UN Commission on Human Rights and Justice P N Bhagwati, the special representative of the UN High Commissioner for Human Rights.

In response to these criticisms, however, the Australian Government has left the ranks of states supporting the international human rights legal system and joined those of the system’s worst opponents. In September 2000 the Australian Government decided not to ratify the new supplementary treaty to the women's discrimination convention to allow individual complaints to the treaty committee. This decision deprives Australian women of a new opportunity to advance the protection of their rights. In June 2002 the Government came close to deciding not to ratify the Statute of the International Criminal Court, a treaty that Australia had played a pivotal role in securing. In June 2002, it voted against a new treaty on inspection of places of detention. This action is most concerning. The Government did not decide simply not to ratify a treaty itself. It went further, seeking to prevent the treaty even being debated by the UN General Assembly, seeking to prevent any country from accepting international inspection.

Australia went from being a “model member” of the United Nations to being among the most recalcitrant states, in the space of a few short months.
Human rights and the domestic agenda

I am a human rights lawyer who has long been committed to the development and strengthening of the international legal system. And so Australia’s retreat from that system concerns me deeply. However, as an Australian I despair far more about how Australia has retreated from the quest to build a more just society here in our own land to the point where it now embraces laws and policies that violate the fundamental human rights of our fellow Australians and others who are within Australia’s jurisdiction.

The single most serious human rights situation in Australia is the continued disadvantage of indigenous peoples as a legacy of two centuries of dispossession, marginalisation and impoverishment. Over these two centuries they lost their lands, their children and often their lives and their culture was undermined. We may not want to admit it but they were truly threatened with genocide. As a result today Australia’s 410,000 indigenous people have almost no political and economic power.

For forty years from the early 1960s, serious efforts were made to redress the crimes of the past and cast a new relationship between indigenous and other Australians. Regrettably all that good work is now at risk. The national government has first fanned and then validated populist prejudice and ignorance. It rejected key recommendations of the National Inquiry into the Forced Separation of Indigenous Children, especially the recommendation for a simple “sorry” for what had happened. It amended the federal native title legislation to remove key entitlements to consultation. It became a regular opponent of indigenous people in legal actions to seek protection for their rights. It cast a cloud of suspicion over indigenous organisations – suspicion that has proved hard to overcome even when independent inquiries have found no fault on the part of those put under the cloud. It rejected the document of reconciliation. The decade long reconciliation process ended in increased frustration and alienation for indigenous people. The state of the relationship between indigenous and other Australians is probably the worst it has been in over thirty years.
Australia has been relatively generous in accepting immigrants, both those simply seeking a better life here for themselves and their children and those fleeing persecution, war and famine. Today all Australians other than indigenous people are either migrants or the descendents of migrants. However, migration programs to Australia over the last century have been strictly controlled and quite selective. Australian governments have accepted migrants only on the basis that it alone chooses whom to accept. Quite large numbers of refugees from off-shore camps have been accepted on the basis of careful selection and control. Those who have sought to come directly to Australia have been treated harshly.

The treatment of asylum seekers who have arrived by boat without authority is of particular concern. Since 1989 these people have been subjected to indefinite mandatory detention until they are either granted asylum or deported. Australian law imposes this regime on virtually all unauthorised arrivals. There is no judicial or other independent review of detention and no power for a court or any other authority to order release, at least before the final determination is made. They are detained in spartan conditions in camps, called immigration reception and processing centres, in remote areas of Australia.

With the end of boats coming to Australia in 2001, numbers in the camps are declining rapidly. Nonetheless though we hear little about the camps now, there are still hundreds of people in them, including more than 100 children. They have been there for over 18 months. Some have been there for over three years. Increasingly those who remain in the camps are awaiting deportation but they do not know when they will be deported or to what country. Most face indefinite detention as Australia is unable to find a country prepared to accept them. Whatever arguments the Government might have presented in the past for these policies can no longer be sustained when there are no boats coming and little possibility of repatriation for the remaining detainees.

Acceptance as permanent settlers does not end the exclusion experienced by new-comers. The situation of recently arrived immigrant communities is of particular concern. The older, larger immigrants communities, for example, from Britain, Ireland, Italy and Greece, have established themselves very successfully in Australia and now exercise considerable political and economic influence. Newer and smaller communities, however, encounter continuing difficulties. Many of them include significant numbers of refugees. They are from Afghanistan, Iraq, Iran and areas of Africa affected by significant conflict.

Smaller, more recently arrived immigrant communities struggle to secure a place within Australian society. Members of these groups are generally poor to very poor and have low educational attainment and poor employment experiences. For them inclusion remains problematic. The experiences of earlier immigrant communities indicate that over one or two generations members of the newer communities too will come to assume prominent positions within Australian society. However, these communities need assistance in the short term to establish their place.

Women in the newer communities encounter particular difficulties. They usually know less English than men and have fewer opportunities to learn English than men. Women from traditional communities or families tend to live in isolation from the broader community, either not working or working in low skilled, low paid jobs with fellow workers who predominantly are also recent immigrants.

Many of the newer communities are predominantly Muslim. Their members face difficulty in being accepted in the context of general international stereotyping and even vilification of Muslims. They have been subjected to verbal and physical attacks in public both as individuals and as a religious community. There is little public understanding of Islam and of the wide range of theological and ideological views of Muslims. All are lumped together and the extremist views of a few are attributed to the moderate majority.

What is to be done?

Australia has been a rich country with a relatively well- educated population, good public services, well developed democratic institutions, low levels of corruption and a tradition of acceptance and egalitarianism. It still is. It has had and still has much going for it. The frustration about being an Australian is that we should be able to build a paradise on earth in this country and yet we are failing so dismally to do so. We still have that opportunity, at least for a while.

The role of Christians

Australia must not only lead. We must also learn. We can lead on the basis of our long democratic tradition and our longstanding commitment to human rights. We must learn about the role of people in this work. We must learn from our own past, when community groups were far more vocal, active and effective in human rights work than they are today. Australia has greater need for an active community, especially active church groups and committed Christians, now than it has had for many years. And there are opportunities to match this need.

As Christians, however, we face a tough job of proving our credibility in doing this. Our track record has been none too impressive. The Catholic Church as an institution was a very late convert to the cause of human rights - only 20 years through the encyclical Pacem in Terris of Pope John XXIII. Until then the Catholic Church had been a vocal opponent of the international human rights project. From the time of the French Revolution in 1789, when the Church aligned itself with the aristocracy against the people, through its 19th century opposition to democracy and its 20th century flirtations with fascism, the Catholic Church had been notable for seeing human rights as a secularist, humanist or even Marxist program, even though the theory of human rights arose from the Church’s own natural law philosophy. But when finally it embraced the work of human rights, through the writings of John XXIII and the documents of the Vatican Council it became an ardent advocate.

The Catholic Church however became an ardent advocate of what others should do, not of what it itself should do. It remained and still remains a notable violator of the very principles it espouses as the basis for good government and right action in others. It recognises no rights for the great majority of its members, lay people, and almost none for its elite class, the clergy. It has no independent system of justice to determine rights and disputes. It discriminates on grounds of gender and sexual orientation. It is a dictatorship. So we Catholics have quite a credibility gap to make up when it comes to human rights. Though I can’t speak for other Christians, I will be so bold as to say that the challenge for them is comparable to that for us.

We cannot shirk the responsibility, however. Your commitment to and involvement in human rights work is not merely important. It is critical to the future of this country. Unless the tide of the last few years is turned soon, the new dismissive hostile attitudes towards human rights will become embedded in our culture and destined to be with us for decades.

I am sure that the areas for action are well known to you.

• There are many community organisations that take up particular human rights causes or that involve themselves more generally in human rights work. Join or increase your activity in them.
• There is need to pressure the media to be more positive about human rights and human rights issues. Hit the airwaves. Seek opportunities to place your views before the community, especially through talkback radio and tabloid newspapers.
• There is need to move human rights knowledge and understanding beyond academic institutions and privileged discussions and into the broader community. Look for ways to raise and discuss human rights issues in your families and among your friends. Join others in local community education initiatives.
• Divisions within the community must be addressed and broken down. Find ways to meet and develop friendships across the divides of ethnicity, religion and class. Build alliances and cooperation so that those most marginalised are able to become part of our broader community and to make their contribution to it in their own ways.

The opportunities are there, as much as they ever were, for Australia to be a leader on human rights internationally and domestically. It’s not the opportunity that is lacking, only the will, the commitment, the wisdom and the belief. The question now is whether we are committed and determined enough to re-discover the way ahead.

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Extracts from a paper delivered at a Catalyst dinner in Alstonville NSW on 19 July 2003.