Nystrom v Australia: human rights umpire snubbed again

The Government’s record of responses either rejecting Committee Views or simply noting them and providing factual updates must give anyone pause if they are considering taking their case to the UN. No matter how persuasive the arguments, or how successful they are with the Committee, the pattern of responses strongly suggests the Australian Government will not be swayed.

Admittedly, most of the cases in which violations have been found by the Human Rights Committee concern the policy of mandatory detention, which has been a cornerstone of both Labor and Coalition immigration policy since 1992 (ie for almost the entire period during which Australians have been able to make complaints to the Committee) and forms an ongoing bone of contention with the UN regarding compatibility with the ICCPR. However, the responses in cases such as Nystrom and Young show that the inflexibility goes deeper.

As Rachel Ball from the Human Rights Law Centre notes, the Government’s own National Human Rights Action Plan ‘commits [only] to “review whether any Treaty Body recommendations can be accepted as consistent with the Government’s immigration detention policies,”’ which rather suggests that such policies effectively ‘outrank’ Australia’s human rights obligations.

All of this leads to the uneasy conclusion that vulnerable individuals have little chance of gaining a successful human rights outcome if they take their case to the UN. Perhaps Julian Assange has the right idea in running for Parliament – after all, a Senator probably has a better chance of changing Australian policy than a homeless, unemployed, mentally ill man forced to live in another country whose language he can’t speak. Whether this defeats the purpose of an international human rights regime is certainly worth debating.