Nearly overshadowed by the chaos in the US this week was a dramatic escalation of the crackdown on pro-democracy activists in Hong Kong.
Authorities arrested more than 50 pro-democracy figures in early morning raids under the territory’s six-month-old national security law. The opposition lawmakers, activists and lawyers were accused of subversion for holding primaries for pro-democracy candidates for Hong Kong elections.
They make political participation in Hong Kong not just futile but dangerous, and are likely to render the Legislative Council a rubber stamp along the lines of the National People’s Congress in Beijing, which has never challenged an initiative of China’s ruling party.
Britain’s foreign secretary, Dominic Raab, responded with outrage, saying China
deliberately misled the world about the true purpose of the national security law, which is being used to crush dissent and opposing political views.
Opposition politics now considered ‘subversion’
Those arrested were all linked to informal primaries convened by pro-democracy parties last year ahead of Legislative Council elections, which were ultimately postponed.
At the time, Beijing labelled the primaries “illegal” and Hong Kong authorities said they would investigate whether the opposition’s plan to win a legislative majority that could veto government initiatives violated the national security law. The law provides for penalties up to life imprisonment.
It is unsurprising Beijing views grassroots political organisation with suspicion. Its authoritarian political system precludes any challenge to the Communist Party’s rule.
In Hong Kong, only half of the legislature’s seats are elected by universal suffrage; the others are reserved for members of trades and industries. But it has still been possible for opposition figures to win election and exercise their rights to vote and, where numbers permit, veto actions.
The fact the Hong Kong authorities now classify such acts as “subversion of state power” confirms the national security law has redrawn Hong Kong’s constitutional landscape. Its enforcement is playing out according to the most pessimistic forecasts.
Steady erosion of rights
While Hongkongers nominally enjoy a wide range of rights under the Basic Law, the outline of which was negotiated with Britain before the handover in 1997, some have come under severe pressure following the passage of the security law. These include freedom of speech, assembly and now electoral rights.
A key point of contention has been the progression to full democracy promised in the Basic Law but repeatedly withheld by Beijing. Chinese authorities have persistently misinterpreted the idea of Hong Kong self-government as a challenge to central authority and territorial integrity.
After the 2014 Umbrella Movement, the Hong Kong government told young democracy advocates to take their cause off the streets and into politics. But after many did so with remarkable success, that door has now been slammed shut.
In addition to aggressively prosecuting pro-democracy protesters, the Beijing and Hong Kong governments have orchestrated the disqualification of many pro-democracy candidates and elected officials in recent years. This culminated in the arbitrary removal last November of four sitting legislators, which triggered the resignation of the 15 remaining opposition members.
Around two-thirds of those arrested this week were former legislators or current district councillors. Other prominent opposition figures and members of civil society groups were also targeted. Police also reportedly seized documents from media and polling organisations.
Benny Tai, a longtime opposition figure who was among those arrested, said:
Hong Kong has entered a cold winter, the wind is strong and cold.
Why the world hasn’t done more
With rights and freedoms diminishing under Beijing’s vast national security apparatus, the outlook for Hong Kong is indeed bleak.
Hong Kong’s judiciary has been a bulwark against executive overreach, but it has been criticised by all sides for its decisions in political cases.
Its jurisdiction over national security matters is also constrained: judges are vetted by the executive government and can only apply, not interpret, the law. Cases can also be transferred to mainland courts.
The retiring chief justice recently pleaded for Hong Kong’s judicial independence to be respected, but the government’s fallacious insistence that Hong Kong, like China, has no separation of powers is one of several causes for concern as the baton passes to a new top judge.
Beijing has learned the lessons of the Tiananmen Square crackdown and sensibly opted to bring Hong Kong to heel by gradually escalating the authoritarian use of the law, rather than a military crackdown.
This makes the likelihood of international intervention — always a dim prospect — practically negligible.
Western democracies have criticised the erosion of Hong Kong’s democratic principles and rule of law, and Hongkongers can expect easier pathways to residency in some of those countries, but China’s economic power will deter most governments from doing more.
This should not mask the fact that true political repression is taking place in Hong Kong. Key opposition figures have been vilified by pro-establishment media and harassed by law enforcement, leading many to flee overseas. Some have had their assets subsequently frozen by a vindictive government.
The Chinese government’s approach to Hong Kong is consistent with its more assertive approach internationally — it is aggressively pursuing its own interests without apparent regard for the reputational cost.
Once the international community understands how China plays the game, governments can formulate diplomatic and economic policies to deter bad conduct and protect their own national interests, along with the interests of others who fall within China’s sphere of influence.
However, such is China’s determination to crush dissent and opposition that anyone, anywhere in the world who advocates for such policies can be charged under Hong Kong’s national security law.
COVID-19 has caused a global public health emergency, a global economic emergency, and a global human rights emergency. The crisis is detrimentally affecting all recognised human rights in every country.
Human rights v COVID-19
COVID-19 restrictions have imposed extraordinary restrictions on countervailing human rights. COVID measures interfere with economic, social and cultural rights, such as rights to work, adequate standards of living, education, and mental health. They also interfere with civil and political rights, such as freedoms of movement, association, assembly, the right to a fair trial, as well as the rights of families and children.
In response to recent questions about the human rights compatibility of the curfew in Victoria, Premier Daniel Andrews bluntly responded that the curfew was “not about human rights”, but rather “human life”. That is a stark dichotomy, which leaves little space for human rights arguments. However, human rights are not optional extras, even in this pandemic.
Limits to human rights
Most internationally recognised human rights can be limited in certain circumstances. Even the right to life, globally recognised in Article 6(1) of the International Covenant on Civil and Political Rights, is subject to limitations. A person must not be “arbitrarily” deprived of life, so “non-arbitrary” deprivations are permissible.
Indeed, every government routinely balances the interest in preserving life against other societal benefits in their calibration of numerous everyday policies, such as those regarding speed limits.
Of course, the nature of the right to life dictates that few limitations are tolerable. Furthermore, a COVID outbreak has the potential to be catastrophic, costing many lives, causing debilitating long-term illness to many more, and overwhelming health systems.
But there must be some limit, even in the context of COVID-19. Human rights law does not mandate harsh lockdowns until elimination of COVID-19 or the development of a cure or vaccine. The question becomes one of just how much increased sickness and death, or risk thereof, is permissible under international human rights law?
The flipside of that question is to ask what human rights restrictions are permissible to suppress COVID-19 and decrease the risk of sickness and death?
Proportionality, risk and catastrophe
A key concept in working out the appropriate limitations to rights is that of proportionality: are the limiting measures reasonably necessary for the achievement of a legitimate purpose?
A key consideration in the test of proportionality is how important the limitation might be. The purpose of stopping the spread of COVID-19 is vitally important. But a more precise way of phrasing the purpose of most restrictions is to “stop the risk of the spread of COVID-19”.
For example, the quarantining of a person known to have COVID-19 contains spread, whereas the quarantining of someone who might have it contains risk. As it is impossible to know who might have COVID-19, it may be assumed that containment of spread is the same as containment of risk. But is this so? Not all risks are the same.
Consider the following example. Most Australian states and territories have imposed border restrictions (of varying degrees of strictness and geographic impact) to stop infections from being introduced from interstate. These measures restrict freedom of movement and forcibly separate families and friends.
Sarah Caisip is a Canberra woman who was unable to attend her father’s funeral and comfort her family in Queensland. She was refused an exemption from hotel quarantine due to the potential risk that she might introduce infection to Queensland. Was this a breach of her right to family life?
The ACT has not recorded a positive COVID diagnosis for months. The risk posed by Caisip is tiny: there is virtually no chance she has COVID-19. So the chance she would transmit the virus and cause a serious or catastrophic outbreak was infinitesimal. The problem is every single catastrophic outbreak, anywhere, has logically been sparked by a single case.
So in the Caisip example there is, on the one hand, a miniscule risk, but on the other, the potential for devastating outcomes if the risk materialises. Furthermore, the stakes seem amplified when COVID-19 is under ostensible control, as in Queensland and the less populous states: few decision-makers want to risk the replacement of a situation of control with one of a lack of control.
If decisions can be justified by the possibility of catastrophic outcomes from tiny risks, they can logically be justified if risks are larger, even if still very small. However, there is the danger any measure can be justified based on its marginal impact, or even potentially marginal impact, on reducing the risk of catastrophic outbreak.
For example, Victoria’s curfew has been criticised on human rights grounds. The virus is not more infectious at night. The curfew was not requested by either Victoria’s health authorities nor its police.
However, perhaps the curfew prevented an illicit party which might have led to further extensive spread and longer lockdown in Victoria. Alternatively, that illicit party may have simply moved to the daytime. Regardless, does the possibility of a benefit make the curfew “worth it”?
What of the lockdown of public housing towers in inner Melbourne without notice in early July? It seems doubtful this unique imposition of mass home detention without notice was justified by the chance a COVID-positive resident would abscond and spread the virus.
If we accept anything that might reduce the risk of COVID-19 infections is permissible, we may effectively permit extreme measures with only marginal, and perhaps no actual, benefit. Proportionality is reduced to a rubble, and human rights considerations are effectively jettisoned. If so, the most vulnerable and marginalised are those most likely to have their rights abused.
Government officials deserve some sympathy in having to engage in a wicked “balancing” exercise involving a novel deadly pathogen. But it is very likely some laws and decisions have overreached, and important human rights have been displaced by restrictions with dubious benefit.
It is vital governments face scrutiny and remain accountable over the human rights compatibility of COVID measures.
Under international human rights law (and some domestic laws), Australian governments must take all reasonable measures to prevent and manage COVID infections. Requisite measures extend beyond coercive restrictions to the establishment of appropriate systems to control spread of the virus.
This is particularly important as system failure has contributed greatly to the spread of the virus in Australia and beyond. There are major weaknesses in the regulation of aged care homes, where there has been a devastating death toll in Melbourne. Hotel quarantine failure sparked the Victorian second wave, while sub-optimal contact tracing failed to detect extensive spread before it was too late.
Communications strategies must ensure public health messaging reaches all parts of society. Indeed, the pandemic has exposed the inadequacy of public services globally in coping with an emergency after years of austerity policies.
While some institutional reforms necessarily take time, some can happen quickly. For example, Victoria has probably significantly improved its contact tracing capacities already.
System improvements will help to ensure against further major outbreaks in Australia. Lockdowns and other general human rights restrictions are not the only tool in the kitbox. System improvements should give Australian governments greater confidence in managing the risks associated with any easing of coercive restrictions.
Balancing the right to life with the right to live
Sensibly, Australians are prioritising safety for themselves and their communities over freedom during the COVID-19 pandemic. But how much risk avoidance is sustainable socially, economically, politically, and even legally, if COVID cures and vaccines remain unavailable?
The continued adoption of an extreme precautionary approach could mean Australia remains balkanised, loved ones (including the vulnerable) separated, livelihoods destroyed, and coercive measures tolerated where they offer little benefit. And the countervailing human rights issues will only loom larger and larger. The human right to life is vitally important, but there is also a human right to live.
CCTV cameras mounted on vans have recently been seen in public parks around Melbourne, ostensibly to nab anyone breaking lockdown rules. They are part of a joint initiative between several Melbourne councils, Victoria Police and the Commonwealth government.
Coming on the back of Victorian police arresting and charging a number of people for inciting others to break bans on public gatherings by protesting in the streets, there is likely to be widespread resentment to the presence of these mobile surveillance units.
Many people are already claiming the Victorian government has once again over-stepped the mark in its aggressive approach to suppressing COVID-19.
These mobile units are not new, though. They were introduced in 2018 to help combat crime. They are not cheap, either. The cost to purchase and operate four of the units has been estimated at $3.6 million.
But what are the laws around public surveillance of people going about their daily business or recreational activities outdoors?
Let me tackle this question by posing four related questions:
are the cameras legal?
are such surveillance tools effective?
are these measures acceptable in a vibrant democracy?
what protections should be put in place?
Are the cameras legal?
It needs to be stated at the outset the Constitution does not include any specific rights related to privacy. And the High Court suggested two decades ago that privacy was unlikely to be protected under common law.
The Victorian Charter of Human Rights, however, contains a provision that states people have the right not to have their
privacy unlawfully or arbitrarily interfered with.
But a lawfully installed camera designed to deter offending would not, on its face, defy the terms of the charter.
International law, too, provides some privacy protections. In 1991, Australia signed the International Covenant on Civil and Political Rights, which states
no one should be subjected to arbitrary or unlawful interference with his privacy.
However, Australian parliaments have introduced few laws to enshrine these protections. The legislation that has been enacted has largely been limited to curtailing the use of privately monitored listening and surveillance devices and preventing governments and big business from sharing citizens’ private information.
The Australian Law Reform Commission has issued clarion calls to extend these protections in recent years, but these efforts continue to gather dust.
So, it should not be surprising that mobile CCTV cameras driven to and stationed in public places are perfectly legal.
Moreover, so-called “unmanned airborne vehicles” (UAVs), more commonly known as drones, are regularly deployed by police for surveillance purposes, too.
Both of these surveillance tools are backed by regulatory force at all three levels of government.
Are these surveillance tools effective?
Proponents of these mobile surveillance units argue the perceived risks to privacy and heavy investment are worth it, given the social disorder they prevent and the help they provide police in solving crimes.
However, there is much research now that casts doubt on this assumption.
In one study in 2009, for instance, CCTV cameras were only found to reduce crime by 16% overall (and by only 7% in city and town centres and public housing communities).
The efficacy of these surveillance units in a health emergency has yet to be proven. The cameras would seem to be most useful in providing police with information regarding who is using the parks, and perhaps providing something of a deterrent to those who might consider breaching lockdown restrictions, but not much more.
Are these measures acceptable?
Yes and no. On the one hand, there is no doubt people want the coronavirus restrictions to end. And if these units deter people from breaking lockdown rules, and this, in turn, helps bring the new case numbers down more quickly, people may accept the intrusion in their lives.
On the other hand, some are understandably alarmed at the increasing use of surveillance tools by authorities — dubbed “uberveillance” by sociologists.
Even advocates for civil liberties appear ambivalent about the curtailment of some basic rights during the pandemic.
Liberty Victoria President Julian Burnside, who has been a fierce defender of privacy rights, surprised many by telling The Age,
It all sounds pretty sensible to me. … We are in a war against the coronavirus, and when you’re in a war with anything, restrictions on your otherwise normal liberties are justifiable.
Liberty Victoria quickly sought to distance itself from the comments.
What protections should be put in place?
There is no doubt parliaments are the most appropriate bodies to determine the extent to which individuals can be subjected to lawful public surveillance.
Indeed, former High Court judge Michael Kirby argues the legislative arm of government needs to step up to the task of scrutinising emergency powers with more vigour.
Otherwise it simply becomes a tame servant of the executive, which is a common weakness of parliamentary democracies of the Westminster system.
But parliaments will only respond if citizens demand this of them, and there are very few signs of that at the moment.
In the meantime, there are a number of legal tweaks that should be undertaken to ensure the government’s spying on the public domain is appropriately measured:
we need to ensure the images and other data that are collected by surveillance units are stored appropriately and discarded quickly when no longer needed
we need to be able to hold police and other surveillance operators to account for any excesses in the manner in which images are gathered and shared
there needs to be a new legal remedy in the event there is a serious invasion of privacy by the inappropriate use or disclosure of images collected by surveillance devices.
True, we have the Office of the Australian Information Commissioner constantly reminding governments of the concerns associated with threats to privacy.
But without civic push-back, little will change. Parliamentarians are unlikely to limit the powers of the executive to allow mobile surveillance units to be parked in public places unless it becomes politically unpopular. One can but wonder when this tipping point may be reached.
You might have seen articles or comments on social media lately alluding to “sovereign citizens”, or “SovCits” for short, with some reports suggesting COVID-19 government restrictions have driven a surge of interest in this movement.
So, who are these self-styled sovereign citizens, and what do they believe?
Sovereign citizens are concerned with the legal framework of society. They believe all people are born free with rights — but that these natural rights are being constrained by corporations (and they see governments as artificial corporations). They believe citizens are in an oppressive contract with the government.
SovCits reportedly believe that by declaring themselves “living people” or “natural people”, they can break this oppressive contract and avoid restrictions such as certain rates, taxes, and fines — or particular government rules on mandatory mask-wearing.
Re-interpreting the law
SovCits see themselves as sovereign and not bound by the laws of the country in which they physically live. Accepting a law or regulations means they have waived their rights as a sovereign and have accepted a contract with the government, according to SovCit belief.
The SovCit movement doesn’t have a single leader, central doctrine or centralised collection of documents. It is based on their reinterpretation of the law and there are many legal document templates on the internet for SovCit use to, for example, avoid paying fines or rates they see as unfair.
SovCits tend not to follow conventional legal argument. Some have engaged in repeated court action and even been declared vexatious litigants by the courts.
The SovCit movement has many local variations but there are some key commonalities across the Australian SovCit movement.
Key beliefs and phrases
A central belief, according to news reports, is that the Australian government, the police, and other government agencies are corporations. Believers feel they must be on guard to avoid entering into a contract with the corporation. They often do this by stating, “I do not consent” and trying to get the police officer or official to recognise them as a “living” or “natural” being and therefore as a sovereign.
SovCits are often careful to avoid showing ID such as driver’s licences or giving their name and address. Saying “I understand” also risks being seen to agree to the contract so SovCits will repeat the phrase “I comprehend” to show they are refusing the contract.
Many reject their country’s constitution as false and reportedly refer to the Magna Carta of 1215 as the only true legal document constraining arbitrary power.
SovCits often come to the attention of authorities due to driving offences. It is a core belief of the movement that “sovereigns” have the right to travel freely without the need for a drivers licence, vehicle registration, or insurance.
Until COVID-19, the main threat seems to have been in committing road offences. More recently, actions protesting measures aimed at limiting the spread of COVID-19 have been linked to the sovereign citizen movement.
Indonesia has recently indicated it is considering investigating the killings of hundreds of thousands of people in the 1965 “anti-communist” purge under authoritarian leader Suharto.
If the inquiry goes ahead, it would mark a shift in the government’s long-standing failure to address past atrocities. It is unclear if they will include other acts of brutality alleged to have been committed by the Indonesian regime in the troubled region of West Papua.
According to Amnesty International, at least 100,000 West Papuans have been killed since the Indonesian takeover of West Papua in the 1960s.
While the number of killings peaked in the 1970s, they are rising again due to renewed activism for independence in the territory. In September 2019, as many as 41 people were killed in clashes with security forces and Jihadi-inspired militia.
Clashes between security forces and the West Papua National Liberation Army have escalated since January, which human rights groups say have resulted in at least five deaths. At least two other civilians were killed in another incident.
The latest violence was sparked by racial attacks on Papuan university students in Java last year, which prompted thousands of Papuans to protest against the government. The protests brought renewed media attention to human rights violations in the region and Papuans’ decades-long fight for autonomy.
However, because the international media have been prohibited from entering West Papua, the broader conflict has received relatively little attention from the outside world. (This week’s feature by ABC’s Foreign Correspondent program in Australia was a rare exception.)
New project to map past atrocities
Late last year, we embarked on a project to map the violence that has occurred in West Papua under Indonesian occupation.
This was in part inspired by the massacre mapping project of Indigenous people in Australia by the Guardian and University of Newcastle, and the Public Interest Advocacy Centre’s mapping of violence in Sri Lanka.
Our aim was to bring renewed attention to the protracted crisis in West Papua. We hope that by showing the extent of state-sanctioned violence going back decades, we might encourage the kind of international scrutiny that eventually led to intervention in East Timor.
Will Australia take a stand on West Papua?
The map only documents some of the massacres that have taken place in West Papua since the 1970s, as conditions in the territory make it difficult to accurately record and verify deaths. The challenges include a lack of resources for record-keeping, internal displacement and frequently destroyed properties, and a fear of reporting deaths. Others have disappeared, and their bodies have never been found.
We also encountered a relative dearth of data from the 1990s to 2010s, in part due to few journalists reporting on incidents during this period.
For the purposes of our project, we relied largely on reportage from the Asian Human Rights Commission and the International Coalition for Papua (both of which have strong connections within West Papua), as well as research by the historian Robin Osborne, Papuan rights organisation ELSHAM, Indonesian human rights watchdog TAPOL and a comprehensive report by academics at Yale Law School published in 2004.
Among the most recent attacks is the torture and murders of scores of protesters on Biak Island in 1998, according to a citizens’ tribunal held in Sydney. Some estimates say the death toll may have been as high as 200.
Though far from complete, our mapping project reveals several broad trends.
The majority of massacres have taken place in the West Papuan highlands, the region with the highest ratio of Indigenous to non-Indigenous West Papuans
many killings were committed while Papuans were peacefully protesting for independence from Indonesia
given the numbers of troops posted to West Papua and the types of weapons at their disposal, the government should have had full knowledge of the extent of devastation caused by attacks by security forces and militia groups. (Indonesian security forces are generally known for being out of the government’s control)
in the vast majority of killings, the perpetrators have never been held to account by the government.
The government claims the National Human Rights Commission (Komnas HAM) is conducting inquiries into some of the more recent incidents, although there are concerns the body doesn’t have sufficient powers and the government has previously been reluctant to accept findings of abuses.
Why has the world stayed silent?
Both Australia and New Zealand have been hesitant about intervening in human rights crises in the region, particularly when Indonesia is involved.
In 2006, Australia signed the Lombok Treaty, which assured Jakarta it would respect the sovereignty of the Indonesian state and not support “separatist movements”.
However, Australia – and the rest of the world – did finally act when it came to the independence referendum in East Timor.
In his memoir, former Prime Minister John Howard mentioned East Timor independence as one of his key achievements. However, in office, he showed very little appetite for supporting East Timor independence and ruffling Indonesia’s feathers.
It was largely the diplomatic intervention at the international level by US President Bill Clinton, alongside the deployment of Australian Federal Police (AFP) working as unarmed civilian police for the UN mission in East Timor, that eventually secured the referendum.
Media coverage played a critical role in persuading the world to take action. In West Papua, the media have not had the same effect.
This is in part due to what the Indonesian security forces learned from East Timor on how to control the media. The Indonesian government has frequently cut internet services in West Papua, enacted a complete ban on foreign journalists and denied requests from the UN Human Rights Commission to investigate human rights violations.
Despite this, mobile phone videos of abuse continue to leak out.
In the absence of extensive media coverage, Papuan pro-democracy advocates and their supporters have been calling for a UN-sanctioned human rights investigation. There is also significant support from human rights defenders in Indonesia for such an inquiry.
As it now has a seat on the UN Human Rights Council, Indonesia should fully support such a move. However, the military retains considerable influence in the country, and holding commanders suspected of human rights abuses to account remains politically difficult.
Given these challenges, what will it take for the world to show enough moral courage to force change in West Papua?
The right way forward is clear. As a member of the UN Human Rights Council, Indonesia needs to put an end to the media ban in West Papuan, support an independent UN investigation and hold accountable those responsible within the government for violent acts.
If Indonesia does not take this course of action, then diplomatic pressure from the world will be required.
Camellia Webb-Gannon, Lecturer, University of Wollongong; Jaime Swift, DPhil (PhD) candidate, University of Oxford; Michael Westaway, Australian Research Council Future Fellow, Archaeology, School of Social Science, The University of Queensland, and Nathan Wright, Research Fellow, The University of Queensland
Debates about a return to classroom learning in Australia are fraught, and parents have mixed feelings as to what may be best for their children.
For example, term 2 began this week in New South Wales. From week 3, children in government schools have been allocated a day per week when they should learn on site. In Western Australia, parents have been asked to decide if their children will return to the classroom, learn online from home or learn from home with hard copy materials. The situation in both states is to be reviewed around week 3.
Human rights relevant to schooling
Australia lacks a comprehensive human rights framework, although human rights laws have been passed in the ACT, Victoria and Queensland. Little commentary to date has considered the return to school in a human rights context.
Under international law, all people have the right to the highest attainable standard of physical and mental health. The right to health extends beyond access to health care. Importantly in the context of the coronavirus pandemic, it includes a right to the prevention, treatment and control of disease.
All people, and particularly children, also have a right to education. This right is described as essential for people to participate effectively in a free society. Countries are obliged to protect the right by ensuring, at a minimum, free and compulsory primary education and a system of schools to provide equitable access to education at each level.
Human rights issues arising from a return to the classroom
How can we balance human rights implications of a return to classroom learning, when rights may come into tension with each other?
Most human rights can be constrained, although not to the point where their essence is denied. Limitations on rights must be necessary in response to a pressing public or social need. They must also pursue a legitimate aim and be proportionate to that aim.
When we consider rights in tension at this time, it is clear a right to health must be the primary focus. A weakening of protective measures may heighten the risk of a second wave of the virus.
A return to classroom learning should be made in consideration of the rights of both staff and children to enjoy the highest attainable standard of health. Australian parents and school staff are being encouraged to view schools as safe environments.
However, the advice for those who are at risk continues to be to stay at home. While some jurisdictions are moving to require in-person attendance, little has been said about how at-risk staff and students are to be protected at school or supported to continue in isolation.
Aspects of a return to school also pose mental health risks. Some students who require set daily routines may become anxious when required to attend only one day per week. Others, especially high school students in their final year, should perhaps be prioritised to return as a cohort in order to complete their education.
For teachers, there are significant workload implications in managing both in-class and online cohorts of students. The right of teachers to enjoy good mental health may also be compromised by a sense of risk in the return to classroom teaching. The potential for stress-related illnesses is obvious among parents, many of whom have found learning from home taxing on their mental health.
There is a widespread desire to support the right of students to education. Schools in Australia have mostly remained open throughout the peak of the crisis for children of essential workers and children who are safer at school than at home. This approach was a measured means of balancing rights to health and education and could be maintained for a longer period across the country.
It has been argued here that the “staggered” return to school in some states ought to prioritise the needs of children at certain key stages of learning.
We add that the most vulnerable children should also be prioritised. For example, greater equity in access to education at this time may call for special arrangements to include students with disabilities, chronic illnesses or mental health conditions. Students who lack at-home access to online learning could also be prioritised in a return to the classroom.
The physical environment in schools is a further complicating factor, particularly in terms of teachers’ rights to safe conditions of work. The prime minister is adamant schools are exempt from social-distancing requirements. Yet those states returning students to the classroom are implicitly undermining that message by setting maximum numbers and requiring staggered break times and other measures.
Many teachers feel confused and stressed about how they can do their work safely. This is unsurprising, given some states and other countries are taking much more cautious approaches to the health and safety of school staff.
No magic right answer
The balancing process between human rights values at this time is highly complex and beyond what we can hope to resolve in this article. And human rights analyses cannot deliver us a simple “right” answer as to how the return to classroom learning should be managed.
What human rights give us is another frame through which to consider these fundamental challenges. There are obvious economic and educational imperatives to prompt a return to classroom learning. Our national debate could be richer and more inclusive if it also included human rights claims.
Australia has just entered its final year of its membership on the UN Human Rights Council. This position was won on the strength of two key arguments:
Australia would be the first Pacific nation to sit on the body, founded in 2007
our long-standing commitments to civil and political rights made us a safe set of hands among a membership that includes several dictatorships.
This championing of Australia’s record, however, sits oddly beside our own well-publicised violations of human rights, most visibly on asylum seekers and Indigenous rights.
My new book, Human Rights in Twentieth Century Australia, probes this contradiction. One of the questions I grapple with is how a nation that crows of its achievements in certain areas of human rights can so flagrantly breach others.
One answer is that Australia has long used its British heritage of civil and political rights and higher average standard of living to discount more expansive social, economic and cultural rights, particularly when it comes to questions of race and citizenship.
Australia’s patchy human rights history
It is often forgotten that Australian representatives joined those of seven other nations to draft the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948.
Attorney-General Herbert Vere Evatt headed the negotiating team. He argued for a strong document enforceable by an international court, which would defend traditional “negative” rights like freedom of expression, alongside “positive” ones such as the right to work.
Even at this high point of global consensus following the second world war, Australia’s double-handed approach to human rights was apparent. While Evatt likened the UDHR to Australia’s sentimental belief that everyone deserves a “fair go”, he guaranteed the White Australia Policy would not be threatened by such a document.
Using language that echoes Australia’s asylum policy today, he said
There is no relationship between the Declaration of Human Rights […] and the exercise by a country of its national right […] to determine the composition of its own people.
This argument for the primacy of so-called “domestic jurisdiction” was also extended to the rights of Indigenous peoples by Evatt and other Australian leaders at the time, meaning their rights were considered to be only of national concern.
The Communist newspaper Tribune captured this in a cartoon depicting the worldly Evatt set against an enchained Indigenous man to whom rights had little meaning.
By positioning itself as a responsible “middle power” on human rights, while also insisting it be judged by a scorecard of its own choosing, a benchmark was set for future Australian governments.
Human rights have, henceforth, been understood very restrictively in Australia.
Challenges to Australia’s human rights policies
Despite such evasions, Indigenous people, refugees and other social movements have long used human rights discussions and debates to further social and political agendas.
Chinese wartime refugees, dubbed a “recalcitrant minority” by Immigration Minister Arthur Calwell, were threatened with deportation in 1949. They petitioned the newly formed Australian Human Rights Commission, protesting “in the name of humanity” for their protection “from the arbitrary and inhuman actions” of the minister.
Indigenous Australians also began petitioning the commission in the 1960s, challenging governmental obfuscations on human rights directly.
UN slams Australia’s human rights record
While Australia insisted the country’s Indigenous policy accorded with the UN’s language of equality, a 1970 petition by five Indigenous Australians – delivered in person to the UN offices in New York – declared nothing had changed.
Alleging the ongoing “literal, physical destruction of our people”, the petitioners demanded Australia be judged
in light of what it does […] rather than what it says.
From collective to individual rights
Starting in the late 1970s, the focus of international human rights shifted. Protecting individuals from suffering and violence replaced the fight for collective economic and social rights that defined the era of decolonisation in the 1950s and ‘60s.
Groups like Amnesty International, which won the Nobel Peace Prize in 1977, made political prisoners and basic sufficiency the watchwords of rights activism.
Economic, social and cultural rights were thus downgraded in importance compared to civil and political ones. Such a focus imposed few obligations on Australia, already a constitutional democracy governed by the rule of law.
Gareth Evans, attorney-general under the Hawke government, said in 1978 the very idea of economic and social rights was:
beyond the scope of the topic ‘human rights’ as that term has meaning in this country.
Since the late 2000s, though, the ground has moved quickly. On one hand, Australia’s continued violation of Indigenous rights has garnered more international condemnation.
The failure to deliver on the promise of constitutional recognition – one of the “pillars” of Australia’s Human Rights Council bid – seems particularly egregious.
The Declaration on the Rights of Indigenous Peoples in 2007 has also created reporting and compliance mechanisms unavailable to earlier generations. Under this declaration, the UN has already condemned the so-called “Intervention” in the Northern Territory and the revelations of abuse at the Don Dale detention centre.
Western governments like Australia are also back in the crosshairs on economic rights.
Kumi Naidoo, Secretary-General of Amnesty International, acknowledged in December 2018 that Amnesty’s focus on political prisoners meant issues of poverty, inequality, housing, food and sanitation had largely disappeared from activists’ lexicon.
It’s now necessary to view human rights as a “package”, Naidoo said, including renewed focus on economic rights. And importantly, western and non-western nations can – and must – be judged on an equal footing.
Australia has already seen what this future looks like. The UN’s special rapporteur on extreme poverty, Phillip Alston, recently said in a widely publicised report the so-called “Robo Debt” and Cashless Welfare Card schemes were bringing forth a “digital welfare dystopia”.
Australia should expect more uncomfortable finger pointing in future. If we are to remain a human rights leader at home and abroad, the ranking of some rights as more important than others must come to an end.
On December 10, the world marks 70 years since the adoption of the Universal Declaration of Human Rights. Regrettably, instead of the anniversary signalling the enduring impact of human rights, some are fearing the “end of human rights”. Here we highlight some of the rights challenges that captured the world’s attention this year, illustrating the struggle to secure human rights is far from over.
1. Australia’s first year on the UN Human Rights Council
Australia took its place on the UN Human Rights Council this year for a three-year term. Australia delivered a strong statement about Myanmar’s atrocities against ethnic Rohingya Muslims, but was criticised for holding refugees and asylum seekers offshore. While Australia supported important country resolutions, it failed to take a leadership role on any key issues.
2. United States’ retreat from Human Rights Council
The US faced international condemnation when it quit the Human Rights Council, calling it a “protector of human rights abusers and a cesspool of political bias”. The US has long complained of the council’s perceived bias against Israel. But, by withdrawing, the US decreased its options for confronting and addressing human rights violators. This increases the responsibility of governments like Australia’s to ensure the council addresses the world’s most serious human rights violations.
3. Violence against women
In Australia, while the #MeToo movement has spurred women to come forward with their experiences of sexual harassment and abuse, a number of high-profile cases of alleged sexual harassment by actors and politicians highlighted ongoing barriers to justice for victims. At the same time, the #countingdeadwomen femicide index reports that one woman in Australia is killed every week by an intimate partner.
4. Facebook’s reckoning
Free speech, privacy and electoral integrity came under the microscope in March, when a former employee of Cambridge Analytica blew the whistle on its practice of harvesting data from millions of US Facebook users in an effort to influence the 2016 presidential elections.
Cambridge Analytica was also investigated in the UK for a possible role in the Brexit referendum.
There is also growing criticism of Facebook for not doing enough to stop its use to spread hate speech. For example, in Myanmar it has been used as a tool to incite violence against Rohingya.
5. Rohingya crisis
In August, a UN Fact Finding Mission on Myanmar, which included Australian human rights expert Chris Sidoti, delivered a scathing report detailing crimes against humanity, war crimes, sexual violence and possible genocide by Myanmar’s security forces against the Rohingya.
The UN Human Rights Council, in response, created a mechanism to collect and preserve evidence to aid future prosecutions for atrocity crimes in Myanmar. Australia joined other Western nations in imposing targeted sanctions on military officers named in the UN report. While the Australian government maintains an arms embargo on Myanmar, our defence forces continue to provide training to the Myanmar military.
6. Crackdown against Turkic Muslims in Xinjiang
Turkic Muslims in China’s northwestern Xinjiang region have long faced repression. In 2018, Human Rights Watch and others reported an escalation in this repression with the government detaining 1 million people in political re-education camps, with evidence of their torture and mistreatment. Muslims not detained still face pervasive controls on freedom of movement and religion. The Foreign Affairs Department revealed under parliamentary questioning that three Australians were detained in the camps.
7. Saudi Arabia
Saudi Arabia made international headlines when a prominent journalist, Jamal Khashoggi, was murdered in the Saudi consulate in Istanbul. The case prompted a closer examination of Saudi Arabia’s human rights record. The country’s repression, imprisonment and ill-treatment of activists includes the alleged torture of leading women’s rights defenders.
In Yemen, the Saudi-led coalition has committed many violations of international humanitarian law, including apparent war crimes, killing thousands of civilians. Millions of Yemenis are confronting a famine, in part because of restrictions on aid delivery. Yet the USA, UK, France and Australia sell the Saudi government weapons and military equipment that may well contribute to its Yemen campaign.
8. Children off Nauru
Australia’s government appeared to respond to the “Kids Off Nauru” campaign launched by civil society groups, medical professionals and lawyers. December figures show ten refugee children remain on the island, down from 119 children in August.
Mounting political pressure forced the government to remove children who had been transferred there in 2013 and 2014, though many were removed from Nauru only after legal proceedings were started. But the departure of families makes the situation even more desperate for the adults left behind. And those transferred to Australia are told they will not remain permanently, keeping them in limbo.
9. One year since the Uluru statement
Indigenous communities have fought hard throughout 2018 to have the federal government focus on the Uluru Statement from the Heart, after the Turnbull government dismissed it out of hand in 2017.
The statement calls for a constitutionally enshrined “First Nations Voice” in parliament and the establishment of a Makarrata Commission to supervise agreement-making between governments and First Nations, and facilitate truth-telling of First Nations’ histories. These steps were seen as laying the foundation for a treaty with Australia’s First Nations peoples. A 2018 parliamentary committee endorsed the need for a voice in parliament and has called for a process of co-design between Indigenous people and government appointees.
10. LGBTI discrimination
One year on from the breakthrough on marriage equality, the parliamentary year ended with Australia’s politicians unable to find a way to remove legislative exemptions allowing religious schools to discriminate against LGBTI pupils and teachers.
Advocates and the Labor opposition rejected government amendments that sought to stop schools being able to exclude students on the basis of their sexual orientation, gender identity, or sex characteristics, but would also allow them to enforce rules in line with their religious teachings.
This week, the United Nations Committee on the Elimination of Discrimination against Women handed down its recommendations from its review of Australia’s compliance with the women’s rights treaty, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
The UN delivered a scathing critique of Australia’s failures to protect and promote the rights of women and girls.
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