Leaders to laggards: civil and political rights fall by the wayside

By Stephen Easton

Tuesday November 14, 2017

The experts who sit on the United Nations Human Rights Committee disapprove of running a national survey on whether same-sex marriage should be legalised, and they have similar concerns about a whole range of decisions that show Australian political leaders see human rights as optional.

Senator James Paterson has been ridiculed by some of his own colleagues after he proposed broad legal exemptions to allow discrimination against same-sex couples, in anticipation of the non-binding opinion poll supporting marriage equality.

“If you’ve got two unequal people and you treat them the same, they’re going to stay unequal…”

Clearly he has a lot of supporters, too, but that is beside the point. Discrimination like Paterson proposes is “legally and morally wrong” in the words of Attorney-General George Brandis. It doesn’t matter whether it’s a vote winner, governments have immense power over individuals and that comes with a responsibility to stand up for disadvantaged and marginalised groups, not turn against them.

On the vote, the committee took the view that “resort to public opinion polls to facilitate upholding rights under the Covenant in general, and equality and nondiscrimination of minority groups in particular, is not an acceptable decision-making method and that such an approach risks further marginalizing and stigmatizing members of minority groups.”

A different opinion poll, in the Essential Report, suggests 45% of Australians agree with them — “it was a bad process that should not be used in the future” — and another 19% think the so-called postal plebiscite was “a good process” but still don’t want to see it rolled out again.

Jumping across to another issue that concerns the UN experts, the New South Wales parliament is debating yet another set of anti-terrorism laws that would allow for some offenders to be kept locked up even after their sentences are complete, on the basis of a determination that they are likely to commit more crimes in future.

These two examples where questions about human rights come up in government are just what is in the news this week. There are many more. The UN committee is also concerned about Australia’s treatment of asylum seekers, and the lack of progress on social equity for Indigenous people.

Australians were once right up the front leading the charge to promote a set of universal human rights after the Second World War. Now a lot of our political leaders are well known for their part in an ignominious retreat from these important principles that is occurring globally on several fronts.

On the international stage, our diplomats talk the human rights talk, as they did after securing a seat on the UN Human Rights Council. But their efforts are weakened when legislators at home don’t walk the walk.

Herbert “Doc” Evatt was famously at the forefront of setting up the United Nations and persuasively argued for the Universal Declaration of Human Rights, which the new UN General Assembly adopted without a single negative vote, while Evatt was its highly respected president.

Elizabeth Evatt, his niece, has built on this legacy as a lawyer, jurist and human rights advocate. In 1992, she became the first Australian to join the UN Human Rights Committee, a panel of independent experts that monitors how UN member states are implementing the 1966 International Covenant on Civil and Political Rights. Or undermining it, as the case may be.

Australia’s delegates recently argued that we collectively meet our obligations to the ICCPR through “legislation, policies and programs at federal and state levels, and through common law” and that a single national law would be “inappropriate” for our federated system of government.

The committee disagrees in its latest report. It concludes that “gaps in the application of Covenant rights still exist” because the ICCPR principles are not fully enshrined in Australian laws.

It recommends “comprehensive federal legislation giving full legal effect to all Covenant provisions across all state and territory jurisdictions” and would prefer to see an Australian government withdraw previously stated “reservations” about articles 10, 14(6) and 20 of the ICCPR.

Australian policymakers flunk human rights law

The UN jurists open with some good news. They applaud the Independent National Security Legislation Monitor and the Age Discrimination Commissioner, along with a few other decisions from the last five or so years related to the rights of the LGBTI community and people with disabilities.

They also approve of Australia’s promise to ratify the Optional Protocol to the Convention on Torture, and the federal legislation that established the Parliamentary Joint Committee on Human Rights, which also requires a statement of compatibility with human rights in all new legislation.

Law professor Anna Cody, director of the Kingsford Legal Centre at the University of New South Wales, argues the black marks in this report outweigh the ticks of approval.

“Equality encompasses ideas of substantive equality – so that’s equality in outcomes — as well as actual equal treatment.”

At the same time as praising the new process for federal legislation, for example, it also points out its obvious failing: the committee doesn’t stop parliament passing laws that breach human rights principles, and sometimes this happens before it has even finished looking at them.

The UN committee is also worried that there is “limited awareness of the Covenant by state officials, which, coupled with the failure to incorporate the Covenant into domestic law, could adversely affect the effective implementation of the Covenant at domestic level.”

According to Cody, some of the statements federal departments have produced to explain how a piece of proposed legislation complies with human rights obligations are not thoroughly researched or they reveal a lack of human rights understanding among public servants.

She argues “there is a lack of understanding across the public service and across lawmakers of key human rights principles” and she thinks Australian policymakers need a more complex understanding of equality as well.

“Frequently public officials, parliamentarians, have an understanding of equality which is just ‘equal treatment for all’ rather than recognising that equality encompasses ideas of substantive equality – so that’s equality in outcomes — as well as actual equal treatment,” the professor told The Mandarin.

“So if you’ve got two unequal people and you treat them the same, they’re going to stay unequal, whereas you have to ensure that actually, they ultimately have the same outcomes.

“And I also think that because we don’t have a federal human rights act, or even consolidated human rights legislation, it really does limit how effectively human rights are used within Australia and in Australian laws.”

This, she said, is why parliamentarians seem able to pick and choose when they want to apply human rights and when something else — national security, or perhaps keeping an election promise — comes first. “And it also means that we have a fairly limited judicial understanding of how human rights can be used within an Australian context.”

Who cares what the UN thinks?

With the parliamentary committee in Canberra lacking any teeth, Cody points out there is little left to encourage human rights compliant laws other than the possibility of being chastised by the UN expert committee. However, our representatives don’t pay much regard to it.

The latest report criticises the “repeated failure” of our politicians to implement the committee’s official views. Respecting and responding to these semi-judicial rulings is our obligation under the Covenant and provides the only way to “guarantee the right of victims to an effective remedy when there has been a violation” of its 53 articles, according to the report.

In recent years federal ministers in particular have expanded their executive powers, passed lots of laws that challenge or entirely breach human rights principles, and argued racial discrimination laws are an affront to freedom. “People have the right to be bigots, you know,” Brandis once said.

The laundry list of problematic issues in the UN report is long, and covers everything from refoulement of refugees and their mandatory detention offshore to counter-terrorism laws, metadata retention, excessive use of force by police and issues with the treatment of prisoners, including in juvenile detention.

The UN committee questions the lack of a comprehensive federal anti-discrimination law and what is being done to counter domestic violence, the over-representation of Indigenous people in Australia’s prisons and the resurgence of racism. It wants the “involuntary non-therapeutic sterilisation of women and girls with intellectual and/or cognitive impairment” to end, and irrespective of the survey result, it votes yes to marriage equality.

Judging by the views espoused by conservative politicians of late in relation to topics like human rights and the UN, it is unlikely that federal bureaucrats are paying much heed to this report and snapping into action as a result.

When it looked like the High Court might pull the rug out from under offshore detention, for example, the Turnbull government amended the law so it won the case. Gillian Triggs, former president of the Human Rights Commission, questions the ethics of the public servants who advised this course.

Incidentally, “attempts by senior politicians to discredit the work of the Australian Human Rights Commission in ways which might threaten its independence and high public esteem” during Triggs’ term and cuts to its budget also troubled the committee, which concludes:

“The State party should refrain from any actions or measures that could undermine the independence of the Australian Human Rights Commission, pursue its stated intention to restore the budget of the Commission, and ensure adequate funding for it to continue to carry out its mandate effectively.”

Missing the big picture

Most public servants know the detail of the legislation that applies to their work inside-out but Cody thinks they generally have a limited view of human rights, which revolves around the issue of discrimination and equity in access to government services.

“Human rights have a broader meaning and understanding internationally,” she added, “and we’re quarantined or we’re cut off from some of that broader thinking around what that actually means within a society or a community that ensures that everyone can participate fully.

“We were among the leaders of development of human rights understandings and concepts, but we’ve completely fallen behind…”

“So in Australia, frequently human rights gets limited to discrimination laws rather than, say for example, a right to housing or a right to fair justice under the law.”

This she blames partly on a lack of education in civics that includes a more expansive definition of human rights. Similarly, the idea of Indigenous self-determination has never really taken off here.

“That is a really well developed concept within international law and within human rights principles as well, and yet it’s understood in a really limited way within Australia, and I think that if there was broader and deeper understanding of that, it would influence the way public servants implement and devise policy that relates to Indigenous people, in terms of Indigenous involvement in the development of that policy,” Cody said.

Going back to the Evatts, the professor is proud of Australia’s human rights legacy but concerned that it has been eroded for decades.

“We were among the leaders of development of human rights understandings and concepts, but we’ve completely fallen behind since the ’80s, really, where all the other Western democracies had a human rights act or had human rights enshrined within their constitutions.

“We don’t, and so we have really fallen behind.”

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