Time to renew Australia’s commitment to the integrity of the UN treaty system

If I were Attorney-General, I would work to overcome the entrenched Australian scepticism about the international human rights system and use it to strengthen and enrich Australian law. Since the time of the Whitlam Labor government, elected in 1972, Australia has been an active participant in the UN human rights system. Both of the major parties have been willing, when in government, to sign and ratify major human rights treaties. Currently Australia is a party to seven of the nine core UN human rights conventions and it has accepted the right of individual communication under four of them.

At least on paper, then, Australia seems well engaged in the international human rights system. There remain however some gaps in this engagement. For example, Australia has been reluctant to accept the new right of individual communication under the International Covenant on Economic, Social and Cultural Rights, although it asserts that that treaty is fully implemented in Australian law. And Australia, like many other Western countries, is not yet a party to the Convention on the Rights of Migrant Workers and their Families, nor the Convention on Enforced Disappearances.

But the major problem is that we tend to regard international human rights standards as applicable to other (non-Western) countries, and as having little relevance to Australian law. Australia views itself – in the words of a former Commonwealth Attorney-General – as a “gold-plated democracy”, largely immune to human rights scrutiny and setting a high standard for unfortunate dictatorships or failing states in our region and elsewhere. This attitude is manifested in Australia’s rejection of the views of the UN human rights treaty bodies in a number of significant cases, most recently in the case of Stefan Nystrom’s deportation.

This approach has led to questions in international circles about the depth of Australia’s commitment to international human rights standards. Australia’s self-satisfaction about its human rights performance is also not based in reality: there is a significant mismatch between our treaty obligations and our actions in, for example, the treatment of asylum seekers, the conditions in which prisoners are held in Australian gaols, the rights of children, and policies and practices relating to Australia’s Indigenous population. While Australians are fortunate to live in a wealthy country, with a lively democratic tradition and an independent judiciary, the benefits of these attributes are not spread evenly.

Both Australia’s complacency about its human rights performance and its porous implementation strategies emerged in the Universal Periodic Review, a mechanism of the UN Human Rights Council. Australia was reviewed in January 2011. It is important to note that many aspects of the process were beneficial: Australia consulted extensively with civil society on its “national report” to the UPR; and the report was candid in acknowledging some problems in Australia’s human rights record, for example the lower life expectancy rates of Indigenous Australians and the fact that women’s earnings are on average lower than those of men.

But the Australian report also glossed over some problematic aspects of human rights implementation: for example it did not dwell on the fact that the protection of human rights in Australia is a complex, and sometimes contradictory, patchwork of laws and practices. It noted that Australia had rejected a major recommendation of its National Human Rights Consultation to introduce a legislative bill of rights on the basis of the shaky argument that existing principles of statutory interpretation and new measures such as statements of human rights compatibility for new legislation would be adequate for protecting human rights.

During the UPR session, countries raised concerns over a great range of matters: Australia’s treatment of its Indigenous people, the rights of refugees and asylum seekers, protection of children’s rights, the use of Tasers by police, sex discrimination, the lack of national human rights legislation, and Australia’s reservations to human rights treaties.

Australia’s response to the draft report was presented to the Human Rights Council in June 2011. The response took some significant steps, such as a commitment to appoint a full time Race Discrimination Commissioner and to tabling both UPR recommendations and concluding observations of treaty bodies in Parliament. At the same time, Australia rejected some major recommendations with little explanation. These included a call to enact a Human Rights Act, to compensate the Stolen Generations and to end mandatory detention of asylum seekers.

The international human rights system is far from perfect. Its institutions are cumbersome and susceptible to the vagaries of international politics. But it nevertheless offers an important safety net for the protection of human rights in Australia, a country without a coherent national system of human rights legislation.

Leadership from an internationally-minded Attorney-General could change our international reputation and also strengthen the Australian legal system. Four ideas for our new Attorney-General to consider are:

1. Acknowledging the gaps in Australia’s implementation of its human rights obligations and setting out a plan to remedy them systematically and in a way that can be measured. The UPR recommendations (including those rejected by Australia) provide a valuable starting point.
2. Participating more fully in the international human rights system by ratifying the Optional Protocol to the Convention against Torture (now being considered by JSCOT) and becoming a party to the Optional Protocol to ICESCR and the Migrant Workers and Disappearances Conventions.
3. Standing for election to the UN Human Rights Council and encouraging the Council to work on strengthening human rights protection across the globe.
4. Becoming more active in objecting to reservations made by countries to human rights treaties when the reservations are incompatible with the object and purpose of the treaty.

This would signal a renewed commitment to the integrity of the UN treaty system.

Professor Hilary Charlesworth is an Australian Research Council Laureate Fellow and Director of the Centre for International Governance and Justice