The best thing about attending the United Nations Commission on Human Rights in Geneva is to spend time among people who consider that doing what one can to advance and protect human rights is normal behaviour. It is certainly refreshing to mind and spirit. It can also give a good perspective on the issues and challenges at home.
Australians have a fine record of contribution to the development of the UN, the Universal Declaration, and so many other crucial human rights advances. But our commitment to the UN processes and the international human rights framework is selective, fragile, and touched with sad irony. Many of the standards that Australians advanced at the UN in the past are those where we are now found wanting.
With the mixed blessing of the Internet, you can give a speech in Geneva one day, and back in the hotel room see the comments from the likes of Michael Duffy, Gerard Henderson and the singular Gary Johns. These days, conservative commentators pop out like cuckoos in our host country’s clocks, or like Pavlov’s dogs, in response to mentions of the UN and human rights. When I hear stories of what happens to defenders of human rights in other countries, it’s a relief to be from a place where one only has to deal with moist sneers.
Unlike the Unites States, Australia does not have any constitutional protection of human rights, nor do we have a Charter of Rights and Freedoms like that of Canada. Nor is it part of a binding regional human rights framework, like the United Kingdom and European countries.
The core UN human rights treaties, in combination with the constitutional power to make laws to implement these treaties, provide the basis for all of Australia’s national human rights legislation. For example, Australia’s High Court has recently ruled that despite international treaty obligations being in conflict, indefinite detention of failed asylum seekers is lawful. Where a domestic law is in conflict with the human rights standards in the international treaties, the domestic law applies and there is no remedy other than that of world opinion, domestic campaigns for reform, and importantly, the combination of both.
In Australia, our current economic prosperity blinds many of us, and our governments, to the weakness of the laws which protect our human rights. Every day there are too many examples where people in Australia are denied their lawful human rights and as a result are living disadvantaged lives in unnecessary hardship.
Too many people are detained for too long without judicial review; too many children suffer from curable, untreated disease; too many children don’t get primary schooling; too many people wander the streets without care or treatment; there is too much interference in some areas of our lives by government; too little respect for our rights and dignity in other areas.
The remedies for perceived human rights abuses in Australia, which are otherwise considered to be lawful here, rely on a combination of world and domestic opinion. Until we achieve stronger domestic protection - which is the central campaign goal of Rights Australia and many other Australian human rights organisations - the international treaty mechanisms and the United Nations human rights “machinery” is key to the protection of human rights in Australia, including those who come into or pass through our jurisdiction.
The UN Secretary-General has called on member States to replace the Commission on Human Rights with a new body that has greater authority by being given a higher status in the UN, and as a standing body, is able to meet whenever necessary to address human rights issues. From the perspective of attending meetings of this Commission, it is my view that despite its shortcomings, Australia should continue to play a major role in any new body, as a member or active participant.
Indeed, by being part of a standing body, states like Australia which are, on the whole, deficient by exception rather than by general practice, will have to improve their performance. There is very little real sanction provided from periodic reports from treaty bodies, as shown by the recent questioning and criticism from the Committee set up under the Convention on the Elimination of Racial Discrimination (CERD).
Australia has been a signatory to CERD for over 30 years. This year marks the 30th anniversary of the bringing of some of the Convention into domestic law through the passage of the Racial Discrimination Act 1975. For this year’s review of Australia by the CERD committee, Australian non-government organisations presented a critique of Australia's progress since that time. We did not suggest that Australia has failed comprehensively in its implementation of CERD, but demonstrated the areas where Australia, as a democratic and pluralist society, could make further advances in meeting its obligations under CERD. The report demonstrated that important laws, policies, and programmes of the Australian government have failed to sufficiently eliminate racial discrimination against Indigenous Australians and other people from culturally and linguistically diverse backgrounds, including asylum seekers and refugees.
The previous report of the CERD Committee was a source of controversy in Australia. Alexander Downer, showing a profound misunderstanding of the role and purpose of the treaty system, famously rejected the report saying, “If a United Nations committee wants to play domestic politics here in Australia, then it will end up with a bloody nose”. This year, the Australian Government sent a large delegation of civil servants to CERD in Geneva, in contrast to the previous time in 2000, when the then Minister for Immigration Philip Ruddock led the delegation into a series of clashes and gaffes that have gone into UN lore.