Australia has enjoyed 27 years of continuous economic growth, arguably more than any other developed country. Almost alone among developed economies, we managed to avoid a recession during the global financial crisis. Employment is at an all-time high, due mainly to a surge in the labour force participation of women, from 40% to 56% of all women over the past three decades.
This success was built on a contract – partly explicit, but mostly implicit – in which the bulk of the population agreed to support contentious reforms in exchange for a guarantee that they wouldn’t be left behind.
High employment masks high inequality and entrenched disadvantage. Although the unemployment rate has fallen from 6.5% to 5.5% since the turn of the century, underemployment (where people work fewer hours than they want to) has climbed from 6.5% to 8.5%. Since the crisis the proportion of the unemployed who have been out of work more than a year has climbed from 14% to 24%. Low-skilled men, younger Australians, women with children, and Indigenous Australians find working more challenging than the headline figure suggests.
Wages growth fell to an all time low after the economic crisis and has yet to recover.
Well-connected cities and regions
As a vast country, connectivity is critical to our prosperity. By and large, we meet the need well through investment in physical infrastructure. But rapid population growth in our big cities and political considerations have made it more difficult.
Our cities and regions offer a very high quality of life, but are evolving by default rather than design. Planning isn’t guided by a consensus about the desired pattern of economic and population growth. The result is low-density cities (far lower than comparable overseas cities) meaning long commutes and social isolation for many.
As house prices have surged, our household debt has climbed from 70% of GDP in 2000 to 120% of GDP today. Home ownership has become more difficult, with many only able to afford options that come with poor access to services and jobs. We are now vulnerable to falling house prices, rising interest rates and global uncertainty.
Dynamic but not diversified
Our open and flexible economy has benefited from dynamism offered by new people, new ideas and new investment. Strength in industries such as international education delivers not only a sizeable brain gain, but also new and important relationships, particularly in our rapidly growing region.
But these successes disguise our wider failure to diversify our economic base. Economic complexity (EC) measures the depth (sophistication) and breadth (diversity) of what a nation sells to the world. It is a strong predictor of economic prospects.
While the EC measure has limitations for a heavily resource-intensive and service-based economy, Australia’s low and deteriorating ranking, 86th in the world, is consistent with other indicators.
Our high investment in physical capital contrasts sharply with our comparatively low investment in knowledge-based capital. Knowledge-based capital encompasses not only research and development, but also software and data, design, marketing and organisational capabilities.
Australia’s business investment in R&D has fallen consistently since the crisis. We rely far more heavily than other nations on indirect R&D tax incentives, leaving less room for more direct approaches.
Innovative nations stimulate both public and private sector innovation through mission-driven approaches. With a few exceptions, Australia does not. We do not attempt to leverage our strengths in fields such as health, education and water, or to meet societal needs, such as those for reduced emissions, sustainable food, better population health or less inequality.
There’s an alternative
A more robust and resilient Australia would be built on a broader base of industries and capabilities. It would address goals that were more than merely economic and adopt as a goal a smaller environmental footprint.
Getting there would require us to develop a shared vision of what we want. We are doing well overall, and badly in places, without quite knowing what we are trying to achieve.
Transforming Australia: SDG Progress Report is an initiative of the National Sustainable Development Council to assess Australia’s progress against the UN Sustainable Development Goals.
Released almost exactly a year after the start of devastating violence that drove 671,500 Rohingya Muslims into Bangladesh within a matter of months, the report found conclusive evidence that Myanmar’s armed forces committed war crimes and crimes against humanity. Using the strongest language to date, the report calls for the Myanmar commander-in-chief, Min Aung Hlaing, and five generals to be prosecuted.
What was the UN investigating?
The UN Human Rights Council formed a Rohingya investigating commission in March 2017, five months before the start of the violence that led to the mass flight of Rohingya refugees. The initial reason for the commission was a five-month military “area clearance operations” in Rohingya communities from October 2016 to February 2017, which resulted in widespread allegations of human rights abuses and war crimes.
The commission was set up to investigate alleged human rights violations by military, “with a view to ensuring full accountability for perpetrators and justice for victims.” The August 2017 violence occurred after the commission had already begun, but obviously gave it more to investigate.
The “area clearance operations” were triggered by attacks against security forces on October 9, 2016, by a new militant group called the Arakan Rohingya Salvation Army (ARSA). What really spurred the military into action was that the same day as the attacks, the organisation uploaded a series of 11 videos calling for international funding and fighters to join their jihad to liberate northern Rakhine State for the Rohingya – links were quickly found between the leader and the Taliban.
Apparently fearing a situation similar to the ISIS-linked Marawi crisis in the Philippines, the Myanmar army launched massive operations. But this military action failed to root out ARSA, and they responded with a second, much larger attack on August 25, 2017.
The Myanmar government quickly labelled the coordinated attacks by ARSA on over 30 security posts on a single night as “terrorism”. In response, the military quickly launched even more brutal counter-terrorist operations.
Obviously, any government must respond to violence perpetrated against its security forces. But the UN commission has been investigating alleged human rights abuses by the Myanmar army against the Rohingya people as a whole, as they tried to contain the armed threat.
What is the state of the Rohingya crisis?
The onset of brutal military action in their communities led to mass panic by Rohingya communities. Over half the Rohingya in Myanmar were so terrified they abandoned everything and fled to Bangladesh. Médecins Sans Frontières (Doctors Without Borders) quickly estimated that at least 6,700 Rohingya died in the military violence in the first month alone. Total Rohingya deaths were perhaps over 13,000 people.
By March 2018, the UNHCR counted 671,500 Rohingya who had fled Myanmar since August 25, 2017. Counting those who had fled earlier violence, the UNHCR was looking after 836,210 Rohingya refugees in camps in Bangladesh.
Given some remain outside the camps, the Bangladeshi authorities claim 1,092,136 Rohingya refugees are now sheltering in their country. Only about 500,000-600,000 Rohingya Muslims now remain in Myanmar, and their situation is very vulnerable.
With allegations of Rohingya links to terrorism, some elements are trying to isolate these Rohingya villages and drive them out. On the other hand, there are many others locals rebuilding relations with local Rohingya.
What did the report find?
The Report of the Independent International Fact-Finding Mission on Myanmar released this week found conclusive evidence that the army and security forces had indeed engaged in mass killings and gang rapes of Rohingya, with “genocidal intent”. It therefore recommended that the UN Security Council should refer the Myanmar commander-in-chief and five generals to the International Criminal Court in The Hague, or an ad hoc international criminal tribunal. The report also suggested that ARSA might be guilty of war crimes too, and should be held to account.
The report said that Nobel Peace Prize-laureate Aung San Suu Kyi and her government “contributed” to the atrocities through “acts and omissions”. This is a serious critique, and the international community must continue to demand she and her government change policy direction on the Rohingya.
The report authors strongly criticised Suu Kyi in particular, for not using her moral or political authority to stem the hate speech or apparently attempt to limit the military response. However, the passive role described in this report does not leave her open to international prosecution.
How can the crisis be brought to an end?
With serious mass atrocity crimes now documented, it is now urgent that the power of the army be reined in. The Myanmar army must be brought under civilian, parliamentary oversight, and the key perpetrators be at very least removed from position. The military have clearly demonstrated that they need formal oversight, and that their current senior leadership are unfit for command.
Myanmar has long demonstrated its ability to be belligerent to the international community, and that it is prepared to isolate itself in the face of international criticism. If this occurs now, 1.1 million Rohingya refugees in Bangladesh and up to 600,000 Rohingya in Myanmar remain in peril.
The perpetrators of mass crimes must be removed. But we must be careful that dogged pursuit of individuals for prosecution does not so undermine any hope of cooperation by the military and government, and thus further jeopardise the future and wellbeing of the Rohingya themselves.
The repatriation of Rohingya to Myanmar is urgent, before all chance of them returning to their own land is removed. But repatriation plans to date don’t sufficiently guarantee their security and human rights guarantees. The international community needs to push for this, and engage more strongly than ever with the Myanmar authorities in achieving this outcome.
Likewise, the international community must commit resources now to ensure the security and future of the 600,000 or so Rohingya remaining in Myanmar. Much work must be done on strengthening social cohesion, and facilitating the sort of social change that would prepare the local population for accepting all the refugees back too. Now is not the time for broad sanctions and isolation, but engagement for the sake of the Rohingya.
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.
The committee harshly criticised Australia for failures in key areas. These included the treatment of refugees, Indigenous rights and inadequate protection of human rights, including the lack of a national human rights act.
What is the UN Human Rights Committee?
This is the treaty body for the International Covenant on Civil and Political Rights. The committee is made up of 18 independent human rights experts. Its key functions are to:
monitor and review state parties’ compliance with the treaty; and
decide complaints made by individuals against state parties.
What did the committee say about Australia’s human rights record?
The committee noted areas in which Australia’s record had improved. These included the establishment of the Parliamentary Joint Committee on Human Rights and the introduction of protections against discrimination on the grounds of sexual orientation, gender identity and intersex status.
However, concerns far outweighed improvements in human rights.
The rights of refugees
The committee widely criticised Australia’s refugee policy for breaching Australia’s human rights obligations under the convention.
It raised concerns about refoulement (the forcible return of refugees to their home countries), mandatory detention, Operation Sovereign Borders and offshore detention. This includes the recent closure of the Manus Island Regional Processing Centre.
The committee urged Australia to end offshore processing and bring the men on Manus to Australia or another safe country. It emphasised the need for detention to be used to assess individual risk, not as a general deterrent. It also found that Australia has “effective control” over the detention centres on Nauru and Manus Island.
The rights of Indigenous people
The committee expressed concern about disproportionately high (27%) Indigenous incarceration rates. It recommended that measures such as mandatory sentencing and imprisonment for not paying fines be repealed.
The committee further recommended that Australia provide adequate funding to the National Congress of Australia’s First Peoples, and consider constitutional change to reflect the special status and fully protect the equal rights of Aboriginal and Torres Strait Islander peoples.
As it has done before, the committee urged Australia to establish a national reparations scheme for members of the Stolen Generation.
The rights of lesbian, gay, bisexual, transgender and intersex people
The committee roundly criticised unnecessary medical interventions on intersex people, particularly intersex infants and children. It recommended that the requirement for Family Court authorisation for second-stage hormone treatment for young people diagnosed with gender dysphoria be removed.
Barriers to gender and sex recognition on documents were also criticised.
The committee took a strong stance on the same-sex marriage postal survey. It stated that:
resort[ing] to public opinion polls to facilitate upholding rights under the Covenant in general, and equality and non-discrimination of minority groups in particular, is not an acceptable decision-making method.
The committee recommended that the Marriage Act be amended, regardless of the outcome of the postal survey.
The rights of women
The committee noted the endemic nature of violence against women, and the disproportionate impact this has on Indigenous women and women with a disability. It recommended that Australia increase its efforts to prevent all forms of violence against women.
The committee again raised concerns about the involuntary sterilisation of women and girls with intellectual and cognitive disability, and recommended that Australia abolish this practice.
The human rights framework
As in previous reviews, the committee recommended that Australia introduce a comprehensive national human rights act to give effect to the human rights protections in the covenant.
It also recommended that federal anti-discrimination laws be strengthened to ensure effective protection against all forms of discrimination. It specifically noted the lack of federal protection against discrimination on the basis of religion.
The committee criticised previous attacks by politicians on the Australian Human Rights Commission and recommended that Australia respect the independence of that body.
The council is responsible for strengthening the promotion and protection of human rights, and for addressing human rights violations around the world.
Council members must demonstrate their willingness to improve their domestic human rights situation. To claim legitimacy in human rights on the world stage, Australia needs to demonstrate a genuine commitment to human rights at home.
Under the committee’s follow-up procedure, Australia must explain how it will implement selected recommendations within 12 months. The committee’s selected recommendations focus on Australia’s treatment of refugees.
Australia was criticised at the review for a history of “chronic non-compliance” with committee recommendations. The challenge for Australia will be to engage positively with the recommendations and urgently implement substantive change to promote and protect human rights.
A good starting point would be a national human rights act, to fully incorporate Australia’s international human rights obligations into law. Furthermore, Australia should reconsider its response to the Referendum Council’s recommendation of an Indigenous voice to parliament.
Anna Cody, Associate Professor and Director, Kingsford Legal Centre, UNSW and Maria Nawaz, Law Reform Solicitor/Clinical Legal Supervisor, Kingsford Legal Centre, UNSW
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.