Australia’s duplicitous approach to United Nations treaty bodies is undermining human rights and the rule of law. In recent years, the Australian Government has built significant political and diplomatic capital with its rhetoric around respect for the United Nations and international human rights law.
The Government’s “Human Rights Framework”, designed for a domestic audience, proclaims that the Government is committed to “respecting the core UN human rights treaties to which Australia is a party”. The Government’s UN Security Council pitch, designed for an international audience, markets Australia as a “principled advocate of human rights for all” and as a country which “does what it says”.
Regrettably, there is a yawning chasm between what Australia says and what Australia does when it comes to respecting and implementing decisions of the UN’s human rights umpires – independent, expert bodies such as the Human Rights Committee and the Committee against Torture.
Successive Australian governments have signed and agreed to be bound by international treaties which give these committees the jurisdiction and authority to adjudicate human rights complaints against Australia. Most complaints against Australia are either rejected or determined in Australia’s favour. In the relatively small number of cases where Australia is found to be in breach of international human rights law, it is alarming that we are increasingly refusing to play by the rules.
The high water mark for Australia’s cooperation with UN treaty bodies came 20 years ago, when a Human Rights Committee ruling paved the way for the decriminalisation of homosexuality in Tasmania. Another ruling led to the elimination of discrimination against same-sex couples in their access to veterans’ entitlements.
In recent years the tide has receded, with Australia refusing to accept a ruling that compensation should be paid to young children who suffered irreparable and ongoing harm after being held for prolonged periods in immigration detention. We similarly refused to compensate, or even apologise to, an Aboriginal child with a disability who was held in solitary confinement, naked, in an adult prison for an extended time.
In recent months, the tide has receded further still.
In one case, the UN Human Rights Committee held that Australia breached the human rights of a permanent resident by deporting him to a country where he does not speak the language, and has no friends or close family. Yet instead of accepting and implementing the decision, Australia told the committee – the authoritative arbiter of human rights under the International Covenant on Civil and Political Rights – that it “respectfully disagreed” with the ruling.
Pressed further by the committee, and in spite of evidence that the man’s physical and mental health has deteriorated significantly in Sweden, the Australian Government warned the committee in July that “further consideration of this matter would not be fruitful or constructive”. That’s the diplomatic equivalent of a one-finger salute.
Another low water mark was reached just weeks ago when the Government deported a Tamil asylum seeker to Sri Lanka in defiance of a UN Committee against Torture “interim measures” request not to do so. An “interim measures” request is the international law equivalent of an urgent injunction, made when a person is at risk of irreparable harm, such as torture or the death penalty. They are made very rarely and failure to comply is a grave violation of international law.
Despite this, the deportation went ahead, with a spokesperson for the Department of Immigration and Citizenship maintaining that the committee’s urgent request contained “no new information” and “carried with it no obligation”.
As leading international law expert Professor Sarah Joseph tweeted, such a position “demonstrates utter bad faith and even contempt towards our international obligations”.
Vindicating the committee’s request, the asylum seeker was detained and interrogated for 16 hours straight following his arrival in Sri Lanka, after which he “recanted” allegations of torture at a government-organised press conference. That he withdrew allegations of ill-treatment is hardly surprising. As the US State Department noted in May, it is difficult to obtain “reliable statistics” on human rights violations in Sri Lanka because “complainants were killed and some families feared reprisals if they filed complaints”.
By becoming party to the major international treaties and their complaints mechanisms, Australia has accepted and is bound by the jurisdiction and authority of the UN’s expert committees. By refusing to play by the rules, however, Australia is not only denying justice to individual victims, but actively undermining the international rule of law.
We are also damaging our claim to be a good international citizen worthy of a seat on the UN Security Council. For when it comes to respect for international human rights and the rule of law, there is a widening gap between what we do and say.
Phil Lynch is Executive Director of the Human Rights Law Centre.
This opinion piece was previously published on the ABC’s The Drum website.