The Committee on the Elimination of Discrimination against Women is a UN treaty body, made up of 23 independent experts from around the world, and its key functions include:
examining state parties’ implementation of rights under the convention
making recommendations detailing how state parties can improve compliance with the convention
accepting individual complaints about violations of rights under the convention
What did the committee say about Australia’s record on women’s rights?
The committee noted areas of improvement, including marriage equality, the introduction of the paid parental leave scheme and the prohibition of discrimination on the grounds of sexual orientation, gender identity, intersex status and family responsibilities.
However, it also issued over 90 recommendations for improvement, demonstrating that negative aspects far outweigh progress on women’s rights.
Human rights framework
The committee reiterated its 2010 recommendations that Australia should introduce a charter of rights. The Committee also recommended that Australia harmonise state, federal and territory discrimination laws to enhance their effectiveness in prohibiting discrimination against women.
The committee denounced funding cuts to the Australian Human Rights Commission, and emphasised the importance of the government respecting the independence of the commission.
Violence against women and sexual harassment
The committee noted the endemic nature of violence against women, with one in three women experiencing physical violence, and almost one in five women experiencing sexual violence. The committee recommended that the government reinforce efforts to change behaviours that lead to violence against women. This includes encouraging reporting violence, and adequately funding services under the National Action Plan to Reduce Violence Against Women and Their Children.
The committee raised the prevalence of sexual harassment, and recommended that the government take into account the outcomes of the national inquiry into workplace sexual harassment, encourage reporting and impose appropriate sanctions on perpetrators.
Women’s economic disadvantage
The committee condemned the government’s lack of gender budget analysis. It said:
The Committee considers that some of the State party’s recent cuts to social, health, education and justice budgets, reduction of taxes for high income groups and increase of the defence budget represent a setback…
It recommended the government take immediate measures to mitigate the effect of recent budget cuts on women, implement gender-responsive budgeting in the allocation of public resources, and reinstate the funding of services catering to women’s rights.
Access to justice
The committee criticised funding cuts to legal assistance services, and urged the government to implement the recommendations of the 2014 Productivity Commission Inquiry into Access to Justice. This includes ensuring adequate funding for community legal centres and legal aid.
The committee raised concern at provisions in funding agreements that restrict the ability of community legal centres and civil society organisations to advocate for women’s rights, and recommended the government remove provisions from funding agreements that restrict freedom of expression.
Treatment of diverse groups of women
The committee recognised that diverse groups of women, including Aboriginal and Torres Strait Islander women, LGBTI women, women with disability, women from culturally and linguistically diverse backgrounds, refugee women and older women experience greater barriers to accessing and enforcing their rights.
These include discrimination, lack of access to appropriate services, higher risk of violence, higher unemployment and homelessness rates, and lower representation in public life. The committee recommended numerous measures to improve gender equality for diverse groups of women.
Where to from here?
The release of these recommendations comes at a time of great uncertainty in international human rights. We’re seeing a disturbing retreat from fundamental human rights principles and institutions across the world.
While Australia has been using its seat on the Human Rights Council to advocate at the international level for the rights of women and girls, the gap between our global leadership on gender equality and the reality faced by women and girls in the Australian community is stark.
Australia has an extremely poor record of implementing treaty body recommendations. During the committee’s review of Australia last month, the Australian government, while stating that it takes its international obligations “incredibly seriously”, admitted that on most fronts it had no plans to amend laws or policies to improve protection of the rights of women and girls in the Australian community.
As part of the committee’s follow-up procedure, Australia must explain to the committee what steps it has taken to implement priority recommendations within two years.
The committee’s four priority recommendations focus on Aboriginal and Torres Strait Islander women, funding for women’s services, reproductive rights, and ending offshore processing of refugees.
The challenge for Australia is to engage positively with the committee’s recommendations and implement changes to improve human rights for women and girls at home
Maria Nawaz, Law Reform Solicitor/Clinical Legal Supervisor, Kingsford Legal Centre UNSW; Lecturer, UNSW Human Rights Clinic, UNSW and Tess Deegan, Law Reform Solicitor/Clinical Legal Supervisor at Kingsford Legal Centre, UNSW
In doing so, they claimed the council was a roadblock to genuine global human rights protection. This move by the Trump administration has been anticipated for some time. In a sense, the elephant has left the room. But in doing so, the elephant has belled the cat on a number of serious issues regarding the HRC.
Is the United States’ decision sound in terms of international human rights protection? Is it one that Australia, an HRC member from 2018-2020, should follow?
What is the Human Rights Council?
The UN Human Rights Council was established in 2006 to replace the UN Commission on Human Rights, which ran from 1947 to 2006. By the time of its demise, the commission was criticised from all sides for being overly politicised.
The HRC’s 47 seats are divided between the five official UN regions in the following way: Africa (13); Asia (13); Latin America and the Caribbean (8); Western Europe and Other (7); Eastern Europe (6). The US (and Australia) is in the Western Europe and Other Group, known as WEOG.
One-third of the council is elected each year by the UN General Assembly, and members serve three-year terms. No member may serve more than two consecutive terms. A member can also be suspended from the council in a vote of two-thirds of the UN General Assembly: Libya was suspended in 2011 after Muammar Gaddafi’s crackdown on Arab Spring protesters and armed dissidents. No other member has been suspended.
The HRC meets three times a year for a total of around ten weeks. Its 38th session has just begun. It also meets for one-day special sessions at the initiative of one-third of its members. It has so far held 28 special sessions.
The HRC also authorises independent investigations into particular human rights issues, either thematic (dealing with a human rights issue such as torture or LGBTI rights) or, more controversially, focused on a particular state. At the time of writing, there are 46 thematic mandates and 12 country mandates for these “special rapporteurs”.
It has one major new function compared to its predecessor, the Universal Periodic Review (“UPR”), whereby the human rights record of every UN member is reviewed by the HRC (as well as all other “observer” nations) every five years.
The US’ grievances against the HRC arise with regard to the human rights records of its members, and its politicised character. Its key red line concern seems to be the HRC’s “unconscionable” and “chronic bias” against Israel (to quote from this morning’s press conference). These issues are examined in turn below.
Membership criteria as they stand are very soft: candidates commit to the highest standards of human rights, and states should take into account a nominee’s human rights record when voting. Both of these rules are basically unenforceable.
Human rights criteria were mooted as prerequisites for membership when the HRC was created. However, the UN’s nearly 200 members could not agree on substantive criteria, as they have very different views on human rights. The US, for example, wanted only “democratic nations” to be eligible. Such a criterion would have led to debates over the meaning of “democracy”, and would seem to prioritise civil and political rights over economic, social and cultural ones. A focus on the implementation of economic and social rights might have led to the exclusion from eligibility of the US itself.
In any case, the “measurement” and respective ranking of human rights records across states is contentious. While comparisons between two states may lead to easy conclusions over which one is better or worse, it is a fraught exercise across the entirety of the UN membership.
Procedural criteria, such as a nation’s record on ratification of human rights treaties, would be more objective. However, such criteria might have led to the exclusion of the two most powerful countries in the world – the US and China, which have both failed to ratify crucial treaties. Realpolitik indicates that such an outcome is very unlikely.
In the press conference, Haley and Pompeo decried the presence of human rights abusers on the council, including China, Cuba, Venezuela and the Democratic Republic of the Congo. Consternation has also commonly been expressed over the common presence of Saudi Arabia and Russia on the HRC. Certainly, none of those states is remotely close to upholding the highest standards of human rights. Haley and Pompeo went further, claiming that these states manipulate the HRC to shield abusers and target blameless states in its resolutions.
So how bad is the HRC membership? Freedom House is a non-government organisation (NGO) that rates states as “free”, “partly free”, or “not free”, according to certain civil and political rights criteria, such as press freedom. While Freedom House’s methodology is assailable, I will use its rankings in assessing the current HRC, as the US itself historically uses them in making certain policy choices.
2018 is in fact one of the worst years in terms of the numbers of non-free HRC members. Nevertheless, free states always outnumber unfree states on the HRC, and can easily pass or block any resolution with the cooperation of just a few partly free states, if they vote together.
Any problem with “bad” resolutions on the HRC arises not from a preponderance of bad states, but from bloc voting within regions, like-minded groups and alliances.
The phenomenon of clean slates
Nevertheless, one can still fairly criticise the HRC for containing 14 non-free states. How do such states get elected?
A major problem for HRC elections is the issue of “clean slates”, whereby the number of candidates presented by a UN region correlates exactly to the number of seats it is scheduled to have elected at any particular time. For example, a region might put forward only two candidates for two seats. In such circumstances, the various candidates’ election seems to be a fait accompli. This phenomenon of clean slates was what Pompeo was referring to when he said that some states were elected by a rigged, collusive process.
Yet clean slates are a problem with all of the UN regions. The US itself was initially elected to the HRC on a clean slate in 2009. Australia was elected to the HRC on a WEOG clean slate in 2017, due to France’s belated withdrawal of its candidature.
Genuine elections do occur when open slates are presented by regions. This is how Russia was rejected in 2016, an unprecedented and humiliating blow that probably led to Russia’s failure to even stand for election in 2017. Other serious human rights abusers, such as Azerbaijan, Sri Lanka and Belarus, have failed to gain seats in similar circumstances.
Although states are elected on a regional basis, each member must still attain the majority of votes in the general assembly in order to be elected. There remains a possibility that an unacceptable candidate will simply not reach that threshold, even in the case of a clean slate.
That possibility has in the past led to the late replacement of controversial candidates, such as Syria’s replacement by Kuwait in 2011. This author eagerly awaits the day when the General Assembly finally flexes its muscle by refusing to elect an entire clean slate, thus depriving a region of a seat for a year. Such an outcome, in the absence of a relevant reform, is one way to dissuade future clean slates.
Finally, while states – particularly WEOG countries – might rail against the awful records of other members, those sentiments might not be reflected in their actual voting. After all, voting is by secret ballot. For example, given that Saudi Arabia is a key US geopolitical ally, it seems likely that the US (and even Australia) has voted for it on occasion. Certainly, the UK seems to have done so.
The US is correct that membership criteria should be revisited. Certain obstacles could be put in the way of the worst abusers, such as compulsory open slates, public voting (which might help prevent UK votes for Saudi Arabia), and a requirement that an eligible state must allow visits by all special rapporteurs.
Politicisation of the HRC
As the HRC’s members are representatives of their governments, the HRC is a highly politicised body, like its predecessor. State governments are political constructs, so any institution made up of government representatives is inevitably political too.
Unfortunately, states will generally vote in favour of their national interests rather than human rights interests if the two should clash. Pompeo inadvertently admitted that this morning, when he praised Haley by saying that she always put “American interests first”.
Politicisation inevitably leads to the manifestation of political biases. The most notorious HRC bias concerns Israel. It seems that the US’ biggest complaint over the HRC, and the “red line” that has led to its withdrawal, is the HRC’s treatment of Israel.
Its special rapporteur mandate stands until the occupation is over, so its renewal is automatic rather than the subject of periodic debate, as is the case with other mandates. The mandate-holder investigates its actions rather than those of the Palestinian authorities, whose abuses are largely ignored.
Israel has been the subject of more special sessions than any other state (more than a quarter of the 28 sessions). Having said that, it was the subject of the first three special sessions in 2006, and four of the first six, so the “hit rate” of 4 out of 22 is less stark since then.
Why is the HRC preoccupied with Israel? For a start, Israel has committed serious human rights abuses that are worthy of the HRC’s condemnation. It is absurd for Pompeo to have implicitly suggested that Israel has “committed no offence”. Any HRC bias does not mean that the substance of its criticisms is wrong. The recent killings of Palestinian protesters, targeted killings, illegal settlements, forced evictions, war crimes, the Gaza blockade and, most fundamentally, an ongoing occupation of Palestine that has lasted for more than 50 years, will cause critics to proliferate.
Nevertheless, that does not explain the HRC’s disproportionate attention to one country, given the scale of human rights abuses by other states that receive far less attention.
Ardent supporters of Israel often contend that the bias is driven by anti-Semitism. While such a motivation cannot be dismissed, there are other reasons that seem likely to be driving this phenomenon. The equation of “anti-Israel” with “anti-Semitic” is simplistic.
Israel has many enemies among UN states. Some have never accepted Israel’s right to exist, believing that it was established illegitimately on Arab (Palestinian) land. Indeed, the Organisation of Islamic Cooperation was set up in 1969 to unite Muslim states after the 1967 war in which Israel seized the occupied territories, so opposition to Israel has been an article of faith since its inception. The OIC routinely brings as much diplomatic pressure to bear on Israel as possible. As OIC states straddle the two biggest UN groupings, Africa and Asia, they can rely on significant bloc solidarity for support in their initiatives.
The racial element, whereby the Jewish State of Israel illegally occupies lands populated by Arabs in the occupied territories, attracts the ire of developing states, which have historical grievances regarding racial oppression. Yet other instances of racial tension – such as the oppression of the Tibetans, the Kurds, the West Papuans, the Tamils or the Chechens – fail to attract the same HRC scrutiny.
One difference is that Israel’s occupation of the Palestinian Territories is not recognised as legitimate by any other state, unlike for example China’s sovereignty over Tibet or Indonesia’s sovereignty over West Papua.
Indeed, increasing numbers of states have diplomatically recognised the occupied territories as the State of Palestine, and the UN General Assembly voted in 2012 to recognise Palestine as a non-member state.
Occupation also allows states to feel safe in attacking Israel without being too hypocritical. While human rights abuses are sadly common, the status of “occupier” is rare. Indeed, Israel is sometimes seen as a remnant of colonialism, and its actions certainly breach the right of self-determination enshrined in the UN Charter.
However, Israel is not the only occupier. Morocco has long annexed the [Western Sahara], yet the global silence on that situation is deafening in comparison.
Israel is also seen as a surrogate for the West, particularly the US. Given that Israel is almost always defended within the UN by the US, and is often defended by much of WEOG, the question of “Israel-bashing” has become part of a greater North/South divide in the UN. Anti-American states such as Cuba, Venezuela, Ecuador and Russia see Israel as a US surrogate in the Middle East, and exploit the issue accordingly.
Bias against Israel is matched by biased displays of support for Israel by its allies, such as the US and Australia. For example, the US instinctively presumed that the recent border killings were justified. Past bombings of Gaza (in 2009 and 2012) have been blithely dismissed by Australia as an exercise of Israel’s right to self-defence. But a legitimate case of self-defence can still result in an illegal use of excessive, indiscriminate or unnecessary force.
Regardless of its causes, the HRC’s perceived bias against Israel is counterproductive. It provides Israel with a ready-made argument to reject even legitimate condemnation, thus providing cover for human rights abuses. Indeed, claims of bias (within and outside the UN) have become a dominant part of the Middle East narrative on both sides, detracting from a focus on the actions of the actual protagonists. It has facilitated Israel’s progressive disillusionment with and disengagement from the UN, and now, the disengagement of the US. It reduces the HRC’s credibility and opens it up to charges of hypocrisy. None of these outcomes is useful for those who sincerely wish for improvements in human rights for all in Israel and the Palestinian occupied territories.
Finally, the biggest problem with the focus on Israel is the corresponding lack of focus on other serious human rights situations. While it is impossible to demand or expect that a political body, or even an apolitical one, should achieve perfect balance in its human rights focuses, it is fair to expect that such focuses not be way out of balance.
The US and human rights
Haley and Pompeo reassured us that the US will continue to play a leadership role in human rights, despite its withdrawal from the HRC. And certainly, the US’ role on the HRC was in many ways positive. For example, it took the lead in addressing impunity in Sri Lanka. The WEOG group suffers from some dysfunctionality on the part of EU states, which generally seek a common position. Strong non-EU voices are important in this regard.
Yet the US is as political as other players on the HRC. Just as some states instinctively oppose Israel, the US instinctively supports it. Neither position is principled. The US has also protected other allies, such as Bahrain.
Outside the HRC, US President Donald Trump is not a credible leader on human rights. He seems to have an affinity with leaders with horrible records, such as the Philippines’ Rodrigo Duterte. Most recently, he responded to comments about North Korea’s human rights record, which is possibly the worst in the world, by praising the “talented” Kim Jong-un.
And of course, the US has long had its own serious human rights problems, which are too numerous to mention, but which include torture and the highest proportion of incarceration in the world. Its recent decision to separate migrant children from their parents and intern them reflects its status as the only country in the world that has failed to ratify the Convention on the Rights of the Child.
Furthermore, it is nonsense for Pompeo to suggest that the HRC had sought to infringe on US sovereignty. This betrays a serious misunderstanding of the concept of sovereignty, indicating that it dictates immunity from criticism. It does not.
Is the council salvageable?
The US is correct to note there are major deficiencies in the current HRC. Is its response therefore the correct one? If so, that would seem to indicate that Australia should also quit the HRC. It is very unlikely that Australia will do so.
The HRC is the peak global intergovernmental human rights body, which may represent the world of today, warts and all. The battle for universal human rights observance will not be won by adopting an “us and them” mentality, which excludes significant numbers of countries in the world from “the human rights club”. Such a solution is more likely to lead to balkanised human rights discussions, and possible competing institutions inside and outside the UN.
The HRC must remain a forum where non-like-minded states, and civil society, can talk to each other, and occasionally cross divides to make important human rights decisions.
Furthermore, the HRC is meant to be a political body. Other parts of the UN human rights machinery are made up of independent human rights experts, and accordingly take a more impartial approach than the HRC. While their human rights findings are more credible, it also seems that states generally take their findings less seriously.
States tend to care more about what their peers think than what human rights experts might think. Hence, human rights would suffer in the absence of a relevant intergovernmental global body.
Despite its flaws, the HRC does make decisions that benefit human rights, even in the face of political lobbying by members with scurrilous motives. For example, a special rapporteur was appointed to investigate Iran (after the application of US pressure), and it remains in place, despite that influential country’s forceful efforts to dismantle the mandate. A special rapporteur on LGBTI rights was appointed in 2016, despite fierce opposition from the OIC and homophobic states, due to an alliance of developed and developing states, and civil society.
The HRC will continue to be an imperfect institution for as long as the UN is made up of states with imperfect human rights records. However, the council still can and must be improved.
But the worst way to achieve that goal is by just walking away.
As a former aid worker, I often wondered about what happened to the projects I worked on years later. Did the anti-corruption commission we founded itself become corrupt? Having given grants to women to start businesses, did the men allow them to work? And what about the community trained in maintaining the water pumps – did they see through their part of the bargain?
Evaluations, lauded by donors, report on a moment of time when the gloss is still shining. We don’t care, or possibly dare, to look back five or ten years later to see what happened.
I did. I wanted to know what happened to the projects and the people from a decade of aid work spanning East Timor, Iraq and South Sudan. I bought airline tickets, wrangled visas, and set off on a journey that changed my view of the aid industry.
Government problems hobble South Sudan
These trips weren’t about measuring the impact of certain projects, as too much time had passed. They were more about understanding. My colleagues and I had started along a journey without knowing how the story would end.
My first return visit was to South Sudan. It came nearly a decade after I had worked supporting a refugee camp in Wau, which was established in the late 1990s following a civil war and famine.
The camp had established itself organically, so there was a spaghetti logic to its layout. By the time I had arrived in the early 2000s, international attention had moved on, so there were limited resources available. My job was to wind down and close out activities.
A decade later, the camp had become a small town struggling to survive. Water pumps and wash points were mostly broken. We’d trained people on how to maintain them, but the government that had agreed to provide the spare parts appeared to have had a change of heart.
It took some time before I learned that the state officials refused to give the former refugees property rights. As a result, families didn’t invest in their homes for fear of making them even more attractive for appropriation.
Did aid make a difference in Iraq?
After South Sudan I returned to Iraq, travelling first to the north and then to Najaf, the centre of religious learning and home to Iraq’s powerful Shi’a Ayatollahs.
Iraq didn’t face the same shortage of resources as South Sudan: quite the opposite. There was more money than ideas.
I first arrived in Iraq a few months after the invasion in 2003; I moved straight to my posting in the conservative cities of Najaf and Karbala. We rehabilitated water treatment plants and parts of the regional hospital, provided psychosocial support to children, helped the disabled, and distributed humanitarian aid.
We were a one-stop shop for assistance, competing with the government and local religious charities.
Returning several years later and speaking with the governor, an ayatollah, and former staff who had become politicians and community leaders, the consensus was that had we not arrived, it would have only been a matter of months – or at most a year – before the same work would have been done by the authorities or the local community.
East Timor didn’t lack money – just sense
From the deserts of Iraq, my final stop was the lush tropics of East Timor. This was where I started my aid career in 2000 as a shelter engineer.
A decade separated the shelter distribution and my return visit. My memories had faded, but luckily I had stayed in touch with a former colleague who undertook the journey with me.
We were on the trail of houses built from a shelter distribution program. Surprisingly, many were still standing, with extensions and improvements tacked on. The pressing issue then – and what was evident during my return visit – wasn’t a lack of money, but how it was spent.
The then sovereign authority, the United Nations, had treated its responsibility as a factory production line churning out widgets, rather than as community development. It implemented off-the-shelf projects in an accelerated timeframe.
Plans called for consultation and engagement, but the reality became a race toward inputs and outputs. The culture of the international bureaucracy had won over the culture of the people.
The lessons learned
Through a mix of hitching rides on military convoys, slipping into Iraq on a pilgrim’s visa, or relying upon the goodwill of former colleagues, I managed to achieve what I had set out to – meet with beneficiaries, former staff and local leaders to hear what they thought about our work.
Each person had a story to tell; each place had a different lesson. But what was true in every location was the importance of the people.
The “stuff” we gave, the “things” we built: they became worn and broken. But the people we worked with, invested in and empowered continued to develop and grow. They took the skills and experience with them to new lives as business, community and political leaders who continued to transform their countries long after we had departed.
It’s a salient lesson to remember: the one and only truly sustainable activity we do is help people help themselves.
Overnight in Geneva, the United Nations Committee on the Elimination of Racial Discrimination (CERD) began its two-day review of Australia, asking government representatives to explain their progress in promoting racial equality and tackling racism.
The CERD notified the government in advance of the key focus areas of the review. Not surprisingly, these include the situation of Indigenous people, and of migrants, asylum seekers and refugees; racist hate speech and hate crimes; and human rights and anti-racism protections in Australia’s laws and policies.
What is the CERD?
Australia has ratified seven of the nine core human rights treaties. Each treaty has its own treaty monitoring body, like the CERD, comprised of independent experts who are nominated by governments but do not represent them.
These bodies monitor states’ compliance with their international law obligations as set out in the treaty, primarily through periodic reporting.
Most recently, Australia received criticism from another one of these bodies, the Human Rights Committee, which highlighted shortcomings in relation to Indigenous rights, treatment of asylum seekers and refugees, and the lack of a national bill of rights.
It is often overlooked that of these nine core treaties, the International Convention on the Elimination of Racial Discrimination (ICERD), was actually adopted before any of the others. The CERD became operational in 1970, and ICERD is now the third most commonly ratified UN human rights treaty, with 177 states signed up.
Australia and CERD – the background
The CERD last reviewed Australia’s record in 2010.
The recommendations made in 2010 contained 21 specific actions for the government. These included the recognition of Aboriginal and Torres Strait Islanders as First Nations Peoples, supporting the proper performance of the Australian Human Rights Commission, appointing a Race Discrimination Commissioner, and addressing Indigenous contact with the criminal justice system.
Like many other UN human rights bodies, in 2010 the CERD also recommended that Australia review its mandatory detention regime of asylum seekers, with a view to finding an alternative to detention and ensuring that the detention of asylum seekers is always a measure of last resort.
Another recommendation in 2010 was that Australia criminalise the dissemination of racist ideas and incitement to racial hatred or discrimination.
In this regard, Australia has formally limited its obligations by having a reservation to the relevant article of the treaty. Reservations allow states to commit to treaty obligations, but with caveats.
Despite criticisms of Section 18C of the Racial Discrimination Act and suggestions that the federal parliament may even have exceeded its external affairs power by going further than was required by the ICERD treaty, the reality is that Australia lacks comprehensive criminal sanctions against incitement to racial hatred. Many other countries have such criminal laws in place.
On Tuesday in Geneva, the government will continue to seek to convince the CERD that it has made progress on these recommendations. It could refer to the appointment of a Race Discrimination Commissioner at the Human Rights Commission, for example Where it has not made good progress, it will be expected to provide explanations.
The last two reviews of Australia by the CERD in 2010 and 2005 were carried out in typical diplomatic mode – the review is called a “constructive dialogue”.
However, Australia’s review by the CERD in 2000 is famous in human rights circles, as there were unusually heated exchanges between Philip Ruddock and one of the committee members.
The Human Rights Committee, one of the aforementioned seven treaty bodies, is sometimes confused with the Human Rights Council – a completely separate UN human rights body. The Human Rights Council is the key UN human rights body, a more politicised entity.
Who actually holds Australia to account?
Being subject to reviews by international human rights bodies is important for the upholding of human rights in Australia – we are currently the only sestern democracy lacking a statutory or constitutional bill of rights.
Also, unlike many other states, we are not part of a regional human rights framework.
Several interested parties made submissions to the CERD and delegates are in Geneva for informal briefings with the committee members. They will inform the committee of the key concerns they have about the government’s progress. NGOs have already made the committee aware of the situation on Manus Island.
My research has found that such submissions can be quite influential and help shape the recommendations eventually delivered by the committee. However, mechanisms to ensure the government implements the recommendations are lacking.
Therefore, those in civil society with an interest in racial equality, NGOs, academics, trade unions and others should be aware of the recommendations and encourage the government to progress their implementation.
What happens next?
The CERD will finish its review of Australia today, which should be available to view via webcast.
In a few weeks, the committee will hand down its concluding observations, containing recommendations for the Australian government.
One would assume the Human Rights Council seat means Australia will lead on issues of human rights domestically, including in the area of Indigenous rights (one of the five pillars of Australia’s bid) and self-determination.
However, as the UN Human Rights Committee review showed, Australia is failing to meet basic human rights standards for Indigenous peoples.
Violence against women in Indigenous communities
To its credit, the Australian government delegation was open and frank in its dialogue with the committee. The delegation acknowledged key areas in which the country needs to improve.
One of the pressing issues affecting Indigenous communities is family violence. Indigenous women are 45 times more likely to experience violence than non-Indigenous women. The severity of the violence is also greater, with higher rates of hospitalisation.
The government delegation acknowledged that the rate of violence against Indigenous women was “appalling”. It referred to “A$25 million for Indigenous-specific measures” and a “trauma-informed approach for children affected by violence”. This is just one measure the government is adopting to deal with violence against Indigenous women.
The NGO coalition, led by Kingsford Legal Centre and the Human Rights Law Centre, agreed with the government delegation that an area for hope was the recent appointment of June Oscar as the Aboriginal and Torres Strait Islander Social Justice Commissioner at the Human Rights Commission. Oscar has been at the forefront of effective, Aboriginal-led initiatives to deal with family violence in Fitzroy Crossing.
Indeed, the NGO coalition called for the government to include Indigenous women in the monitoring and evaluation of the National Plan to Reduce Violence Against Women and Their Children. It also called on it to fund Indigenous community-controlled services with expertise in working with victims/survivors of family violence.
Indigenous incarceration rates
An area in which Australia continues to breach international human rights standards is Indigenous incarceration rates. The national imprisonment rate for Indigenous adults is 13 times higher than that for non-Indigenous adults. While Indigenous people are only 2% of the population, they account for 27% of the prison population.
Mandatory sentencing and imprisonment for fine default, as canvassed by the current Australian Law Reform Commission inquiry, are key contributors to these statistics.
The UN Human Rights Committee repeatedly noted its concern about Indigenous incarceration rates and focused on policing of Indigenous communities. A committee member raised the case of Ms Dhu, who died in custody in Western Australia after being arrested for defaulting on fines. He asked why the laws providing for imprisonment for fine default had not yet been “scrapped”.
The committee also raised the recent case of an Aboriginal woman who called WA police for help in a domestic violence situation. She was taken into custody for a fine default, leaving her five children without support.
The Australian government was asked how this represented a “trauma-informed” approach to dealing with family violence.
Self-determination and constitutional reform
One of the key areas of interest for the NGO delegation and the committee was the response to entrenched disadvantage through effective policy. This connected closely with the identification of constitutional reform as advocated by Indigenous delegates at the regional dialogue process that produced the Uluru Statement.
The NGO delegation highlighted the need for Aboriginal-led policy design as articulated in the Redfern Statement and by numerous movements agitating for Indigenous rights since colonisation. The government delegation was keen to focus on constitutional recognition, while the NGO delegation advocated strongly for constitutional reform in accordance with the Uluru Statement.
In fairness to the Australian delegation, it certainly recognised the need for Indigenous-designed policy and implementation. This flies in the face of the government’s actions in cutting funding to Indigenous-controlled organisations, including the National Congress of Australia’s First Peoples.
The UN Human Rights Committee challenged the Australian government to produce policy that truly includes Indigenous people.
One of the challenges of human rights treaty reviews is to ensure that the government implements the recommendations that the committee makes. Australia has a terrible record in this area, being called out for “chronic non-compliance” by the committee.
Hopefully, the seat on the Human Rights Council will encourage the government to heed the words of the UN Human Rights Committee and ensure real progress on Indigenous rights.
Anna Cody, Associate Professor and Director, Kingsford Legal Centre, UNSW and Maria Nawaz, Law Reform Solicitor/Clinical Legal Supervisor, Kingsford Legal Centre, UNSW
Australia has been elected to a seat on the United Nations Human Rights Council. It will serve on the council from 2018 to 2020.
The announcement overnight formalised an assumed result: Australia and Spain were the only two countries seeking election to the two available seats for the Western Europe and Others group. Most of the other newly- elected council members similarly ran uncontested.
Australia’s bid and opportunities for human rights advocacy
However, Australia’s campaign opened it to further scrutiny of its human rights record. Human rights organisations in Australia and overseas have been lobbying to ensure that Australia’s practices are well publicised and subject to oversight and critique.
In December 2016, Bishop sought to pre-empt such criticism, claiming “no country is perfect”. Bishop pledged to be “honest and open” about Australia’s human rights record during the campaign.
Yet the campaign’s pledges failed to acknowledge Australia’s human rights abuses. As such, Australia remains open to accusations of hypocrisy on human rights.
It is incongruous for a claimed champion of human rights to put the rights of a minority group to a popular vote, potentially in an effort to prevent that group from gaining marriage equality.
Australia strikes a similarly dissonant note in relation to its treatment of Indigenous people. A key pledge of the council bid was the recognition of Indigenous Australians in the Constitution. However, a constitutional convention rejected the form of “recognition” the government-sponsored Recognise campaign had promoted.
The Recognise campaign has since been abandoned, and the future of the proposed referendum is unclear. The Australian government is yet to embrace the Referendum Council’s proposals for treaty, truth-telling and a First Nations Voice.
France’s withdrawal was a loss to the election campaign
Given Australia’s record, France’s withdrawal as a third candidate for the two available seats was unfortunate. The lack of competition reduced pressure on Australia to extend its human rights commitments.
The weight of international disapproval of Australia’s practice in relation to refugees, in particular, could well have weakened the bid had France stayed in the race.
No doubt this was also true for Spain. The recent Catalan independence referendum exposed Spain’s problematic record in relation to self-determination and political rights for minority groups.
The UN’s orientation is to promote inclusion rather than marginalisation of member countries on international bodies. The UN is committed to universal values and obligations, and seeks to enforce these through universal involvement in its processes.
It is undoubtedly difficult to countenance egregious human rights violators participating in human rights processes. But it is at least arguable that their involvement promotes the progressive realisation of human rights more effectively than their marginalisation would.
However, in some cases, it may be that a country’s membership should be postponed until it can show improvement in a deplorable record. Leading up to the election, Human Rights Watch campaigned against promoting the Democratic Republic of the Congo to the council due to its grave human rights violations.
Meanwhile, the US warned it may withdraw if the council continued to elect countries responsible for gross abuses.
Australia is not in this category. It aspires to be an exemplary member of the council. And its election should act as impetus for progressive gains in its human rights performance.
The value of Australia’s election for human rights
Human rights advocates will take the opportunity to draw attention to any gaps between Australia’s international legal obligations and its domestic practices.
Bishop was right to highlight the value of Australia becoming the first Pacific country to join the council. Strong diplomatic and trade relationships will hopefully enable Australia to influence human rights development in its region. It is the only place without a regional human rights treaty or institution.
An important focus in this context will be Australia’s advocacy for the abolition of capital punishment. Allied to that concern for the right to life, perhaps Australia might also consider lobbying other countries – notably the US – for gun laws that prioritise human life and wellbeing.
Australia could substantially increase the legitimacy of such efforts, though, by working to build adequate domestic human rights architecture. Without federal human rights legislation, Australia cannot demonstrate the social and legal value of building human rights protections into law.
Australia’s election also calls for a renewal of political commitment to the value of international human rights review processes. Recent years have seen expressions of frustration, dismissal and poor faith that undermine Australia’s strong record of commitment to international human rights treaties.
Nowhere was this troubling attitude toward human rights protection more clear than in efforts to tarnish the reputation and work of former Human Rights Commission president Gillian Triggs.
Such mixed messages sit poorly with Australia’s continued efforts to review the practices of other countries – particularly now that it has an official role on the Human Rights Council.
Australia has claimed leadership in the areas of gender equality, good governance, freedom of expression, the rights of Indigenous people, and strong national human rights institutions.
Imperfect performance in these areas indicates key targets for immediate focus – for example through human-rights-informed approaches to gendered violence, and concern for limitations on the freedom to express views about politically sensitive matters.
Importantly, Australia must also be held accountable in the key area its bid sought to avoid: the treatment of asylum seekers and refugees. Its election provides an ideal opportunity for Australia to show leadership and commitment to durable regional and global responses to refugee flows.
On ABC TV’s The Drum on Monday, author Antony Loewenstein called for a sports boycott of Australia. Loewenstein’s argument was that such a move from other countries could force a change in approach to the offshore detention of asylum seekers who travel to Australia by boat.
Sports boycotts have had a colourful history in the UN era. By far the most-well-known is the boycott of apartheid South Africa.
There has been debate regarding the impact of sporting boycotts in the past. In the South African case, sports boycotts were accompanied by wide-ranging political and economic sanctions. Apartheid was almost universally condemned as a violation of the international legal prohibition on racial discrimination.
No doubt a boycott of sports-loving Australia would be hugely controversial. However, a boycott seems highly unlikely to eventuate. Criticism of Australia’s refugee policies tends to come from or through UN humanitarian bodies and NGOs more so than from individual countries.
The major sporting codes in Australia are also largely domestic. So, boycotts of Australian rules football or rugby league would likely have a negligible effect. And a boycott would potentially risk the further entrenchment of negative attitudes toward asylum seekers travelling by boat.
Australia again criticised for offshore detention
Loewenstein’s argument was prompted by the latest in a long series of international critiques of Australia’s policy of mandatory offshore detention of people who seek asylum here by boat.
Specifically, the UN High Commission for Refugees (UNHCR) chief Filippo Grandi has accused Australia of misleading conduct.
The UNHCR describes as “exceptional” its decision to assist Australia in concluding a refugee transfer arrangement with the US. That arrangement has been mired in controversy. It was agreed in the final days of the Obama administration. Tensions arose early in the Trump administration over what the new president described as “the worst deal ever”.
The two countries now appear set to manage the transfer of a large number of those still in offshore detention on Nauru and Manus Island. The fate of those who do not pass US checks remains uncertain.
Yet, according to the UNHCR, Australia committed to resettling vulnerable affected refugees in Australia if they had family members already living in the community. However:
UNHCR has recently been informed by Australia that it refuses to accept even these refugees, and that they, along with the others on Nauru and Papua New Guinea, have been informed that their only option is to remain where they are or to be transferred to Cambodia or to the United States.
This means, for example, that some with serious medical conditions, or who have undergone traumatic experiences, including sexual violence, cannot receive the support of their close family members residing in Australia.
Human Rights Watch Australia regards the UNHCR’s statement as a stinging rebuke of Australia’s non-compliance with international legal obligations towards refugees and asylum seekers.
The Human Rights Law Centre joined the call for an immediate end to offshore processing and the resettlement in Australia of the 2,000 people still on Nauru and Manus Island. Immigration Minister Peter Dutton has reiterated Australia’s commitment never to resettle refugees in Australia if they have been transferred to offshore detention.
Fruitless attempts to force compliance?
The perennial problem of international law – particularly troubling for students of the area – is the often overwhelming difficulty of requiring countries to comply. The international legal system lacks a court of compulsory jurisdiction, police force, or global parliament.
When compared with a robust domestic legal system like Australia’s, the international legal system appears weak on enforcement mechanisms. Famously, though:
Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.
Australia is – across a vast range of areas – an enthusiastic proponent of the international legal system. In the human rights context, Australia routinely comments on the performance of other countries and describes itself as a global leader in human rights.
Political leaders of both major parties have maintained a longstanding commitment to punitive dealings with asylum seekers travelling by boat without visas. This is an area of Australian practice that seems unlikely to shift in response to international critique.
Instead, the will to locate humanity within Australia’s refugee policy must come from within. While Loewenstein’s sports boycott proposal seems improbable, it was worth making to highlight Australia’s intransigence in this area.
The United Nations high commissioner for refugees (UNHCR), Filippo Grandi, has accused Australia of breaking its word by refusing to allow refugees on Manus Island and Nauru with family in Australia to settle here – a claim denied by Immigration Minister Peter Dutton.
In a strongly worded statement on Monday, Grandi said that last November the UNHCR “exceptionally” had agreed to help with the relocation of refugees to the US, when the Turnbull government struck a deal with the outgoing Obama administration.
“We agreed to do so on the clear understanding that vulnerable refugees with close family ties in Australia would ultimately be allowed to settle there,” Grandi said.
But “UNHCR has recently been informed by Australia that it refuses to accept even these refugees, and that they, along with the others on Nauru and Papua New Guinea, have been informed that their only option is to remain where they are or to be transferred to Cambodia or the United States,” Grandi said.
This meant some people with serious medical conditions or who had had traumatic experiences such as sexual violence could not receive the support of close family members who are living in Australia, he said.
“To avoid prolonging their ordeal, UNHCR has no other choice but to endorse the relocation of all refugees on Papua New Guinea and Nauru to the United States, even those with close family members in Australia.”
A spokesperson for Dutton responded to Grandi’s statement by saying the government’s position “has been clear and consistent” – people transferred to regional processing centres “will never settle in Australia”.
On the ABC’s 7.30, Volker Turk, the UNHCR’s assistant high commissioner for protection, elaborated on the claim.
He said the UNHCR went into its facilitation role “after long discussions with Australian government officials”.
“We had a lot of meetings with the government, including myself with the minister of immigration in November,” he said.
“There was no doubt in our mind – and this is what we put forward to the minister at the time – that we would present to him cases that are compelling humanitarian, with close family links to Australia. We were hoping that, indeed, Australia would consider them favourably within the discretion that the minister has at his disposal.”
Pressed on whether Dutton gave any assurance that he would actually allow those people to resettle in Australia, Turk said: “He didn’t give us assurances because we didn’t present cases yet. But he did agree that we would be able to present such cases.”
“Of course we went into this agreement on the understanding that, indeed, Australia would be part of the solution for a handful of compelling humanitarian cases with strong family links in Australia.”
Only 36 people had so far been identified with such links, he said.
On the basis of the understanding that it had the UNHCR “presented these compelling cases”, Turk said.
Grandi said these vulnerable people who had already had four years in “punishing conditions” should be reunited with their families in Australia. This would be the “humane and reasonable” course.
“The Australian government’s decision to deny them this possibility is contrary to the fundamental principles of family unity and refugee protection, and to common decency,” he said.
Grandi said Australia’s offshore processing policy “has caused extensive, avoidable suffering for far too long”.
“Four years on, more than 2,000 people are still languishing in unacceptable circumstances. Families have been separated and many have suffered physical and psychological harm,” he said.
The UNHCR has referred more than 1,000 refugees to the US over the past eight months. A further 500 people are waiting for the outcome of their refugee claims, being processed by authorities in PNG and Nauru. The American deal provided for the US to take up to 1,250.
US President Donald Trump made it clear in his much-publicised phone conversation with Malcolm Turnbull that he hated the deal, though he has said he will honour it.
But so far no-one has been settled. The US, which is doing its own assessments, has been slow, and now America has filled its much-reduced refugee program for the year ending September. This has stalled any prospect of departures until the new year starts in October.
Meanwhile the Manus centre is due to close on October 31, and authorities there are trying to push people out of it.
Asked on Sky on Sunday whether there was any circumstance under which the government would allow some people to come to Australia, Dutton said: “People will not be coming to Australia … the government has said it consistently”.
He said this consistent position had been part of the reason for the success in stopping the boats. “We’ve taken the people-smuggling model away from the people smugglers. People don’t believe that they can get to Australia by paying their money and if that fails then we will see a recommencement of boats.”
Pointing to the earlier 1,200 drownings at sea, Dutton said that under the Coalition’s “Operation Sovereign Borders we’ve not seen a single death at sea”.
Grandi said the UNHCR fully endorsed the need to save lives and prevent exploitation by people smugglers.
“But the practice of offshore processing has had a hugely detrimental impact. There is a fundamental contradiction in saving people at sea, only to mistreat and neglect them on land.”
He urged an immediate end to Australia’s offshore processing and for it to offer solutions to its victims “for whom it retains full responsibility”.