ARPA: Human Rights treaties in Australia

The Australian government conducted a review in 2000 of its role in the international human rights regime, following United Nations’ criticism of Australia’s human rights practices. This review contradicts a trend in recent decades towards greater transparency in treaty procedures in Australia. Indeed, it heralds a disturbing new trend towards non-compliance with international human rights treaties, which overrides the government’s own stated commitment to openness and transparency in treaty procedures.

Reviews of treaty procedures in Australia occurred in 1985, 1991, 1995 and 1996. [1] In 1996, the Council of Australian Governments agreed to establish a Treaties Council made up of the Prime Minister, Premiers and Chief Ministers, to table new treaties in Parliament for at least 15 sitting days before final action is taken, to prepare National Interest Analyses, and to establish an internet Australian Treaties Library [2] (Commonwealth of Australia 1999). The 1996 reforms were targetted at improving understanding of the potential impact of international treaties on Australian domestic affairs, and improving consultation with the states and the public prior to treaty ratification. The procedures were designed to mollify criticisms of the scope of the Commonwealth’s executive power to ratify treaties, following High Court decisions which interpreted the Commonwealth’s external affairs power broadly, and upheld its right to legislate on areas subject to an international treaty. [3]

In 1998, the Coalition government announced a review of the operation of the revised procedures it had introduced in 1996. This ‘Review of the Treaty-Making Process’ was undertaken in 1998 and 1999, and included public consultation. The review report, published in August 1999, noted that consultation with the states had improved, and that ‘overall’ treaty procedures in Australia were ‘working well’. [4] Some areas identified as warranting ‘further improvement’ included consultation between the states, Territories and Commonwealth Departments and agencies, and enhancement of the internet Treaties Library. The Executive Summary stated that

In summary, this review lauded Australia’s compliance with international human rights treaties and committed the government to ‘scrutiny, transparency and consultation’ in relation to international human rights treaties. Although this review was conducted into treaty-making procedures, and not into treaty-compliance procedures, the two are closely linked.

However, in March 1999 and several months before this treaty review report was released Australia became subject to expressions of significant concern by the United Nations regarding racially discriminatory developments in a range of policy areas. The Federal Government’s response to this criticism provides ample evidence that its commitment to ‘scrutiny, transparency and consultation’ was rhetorical at best, and that a new trend towards non-compliance with international human rights treaties was emerging.

The March 1999 criticisms stood in contrast to positive comments made several years earlier by the United Nations regarding advancements in the areas of native title and multiculturalism, and the submission of regular reports. [5] Now the United Nations Committee on the Elimination of Racial Discrimination [UNCERD] was strongly criticising Australia. In August 1998, Australia had become subject to the UNCERD’s ‘early warning procedures’—the first Western government to do so—and was asked to provide information regarding changes to native title legislation and proposed changes to the function of the Aboriginal and Torres Strait Islander Social Justice Commissioner [ATSISJC]. On 18 March 1999, the UNCERD expressed concern that the Native Title Amendment Act 1998 was incompatible with Australia’s international treaty obligations, in particular due to its extinguishment of native title rights, its inclusion of four specific discriminatory provisions, and the lack of participation in the formulation of the legislative amendments by indigenous people themselves. The UNCERD also expressed concern that proposed changes to the ATSISJC, specifically the proposal to abolish the position and merge it with that of the Race Discrimination Commissioner in a new ‘Deputy President’ role, would further impair the realisation of indigenous rights. [6] This decision of the UNCERD was reaffirmed at a meeting on 16 August 1999. [7]

The Australian Attorney-General reacted to the March statement with a press release claiming that ‘the Committee’s comments are an insult to Australia’. The Attorney-General also implied that the Committee misunderstood their mandate, by granting credence to non-governmental submissions. In the summary record of that meeting produced on 23 August 1999, [8] the UNCERD noted with concern the Australian government’s reaction to their findings. The Committee noted that they had in fact received an ‘unprecedented’ number of ‘diplomatic representations’ and ‘considerable’ response from NGOs to their enquiries regarding Australia’s policy changes. The Committee cited Australians for Native Title and Reconciliation and the Aboriginal and Torres Strait Islander Commission as bodies which had made submissions. [9]

The Australian government was given ample opportunity to make its own written and verbal submissions to the UNCERD regarding its policy changes, including during consideration of Australia’s 10th, 11th and 12th periodic reports in March 2000. [10] The Australian government claimed that the amendments to native title procedures were fair, that they did not curtail indigenous land rights but instead clarified native title opportunities, and that they were not discriminatory. Also, although the UNCERD had been invited to visit Australia in 1999 by non-government members of the federal Senate, government Ministers had written to the Committee saying that ‘the proposed visit should not proceed’. [11] The UNCERD decided not to pressure the Australian government to be allowed to visit, a move which they regarded as unconstructive due to the government’s clear opposition.

The UNCERD has continued to criticise Australia’s native title regime since passage of the Native Title Amendment Act 1998, as well as other aspects of indigenous policy including mandatory sentencing in Western Australia and the Northern Territory, the lack of an entrenched protection against racial discrimination in Australian law, the government’s unwillingness to apologise to or consider compensation for the stolen generations, over-representation of indigenous people in jail, low standards of living in indigenous communities, the winding back of funding and powers of the Human Rights and Equal Opportunity Commission, [12] and the Australian government’s position regarding their responsibilities towards international bodies and treaties. [13] The UNCERD recommended measures including a stronger decision-making role for indigenous people over land rights and the restoration of native title rights, the institution of appropriate remedies to victims of the stolen generation, and the reassessment of mandatory sentencing laws. [14]

In response to this raft of criticisms and rejection of the Australian government’s concerns regarding the UNCERD’s ‘mandate’, the Coalition government announced a ‘whole-of-government’ review of the operation of the treaties committee system as it affects Australia. The latest review was intended to investigate two things: ‘burdensome’ reporting requirements and an ‘over-emphasis’ in United Nations committee decision-making on the submissions of non-governmental bodies (Downer 2000a).

On the question of reporting requirements, signatory nations are required to report under the Convention on the Elimination of All Forms of Racial Discrimination every two years. [15] Australia lodged its reports within about a year of the due date until the mid 1990s. The reports due in 1994, 1996 and 1998 were submitted in 1999. It is only since the second half of the 1990s, and in the context of UNCERD noting the lateness of reports, that the reporting requirements have been criticised by the Australian government as ‘burdensome’.

The second issue is related to the UNCERD’s preparedness to take non-government views into account when preparing its findings. The Aboriginal and Torres Strait Islander Commission’s reports to the Committee, for example, put forward arguments which specifically contradicted with those of the Australian government. [16] Although the Australian government accused the UNCERD of disregarding their representations, it seems more likely that they simply disagreed with them.

Unlike in the 1998/99 review, there is no evidence that the ‘review’ announced in 2000 involved any public consultation or allowed for the lodging of public submissions. Indeed, the procedure by which this review was undertaken was anything but ‘transparent’ or ‘consultative’.

On 29 August 2000, a joint announcement was made by the Minister for Foreign Affairs, the Attorney-General, and the Minister for Immigration and Multicultural Affairs regarding the outcomes of the new review (Downer 2000b). The outcomes, which had been considered by Cabinet on 28 August, included a recommendation that the government take ‘strong measures’ to ‘improve the effectiveness of the United Nations human rights treaty bodies’. The review criticised the treaty committee system for paying insufficient attention to the decisions of democratically elected governments, implied that they work beyond the scope of their ‘mandates’, and further implied that they were not focussed on their ‘primary objectives’ (Downer 2000b).

Corrective measures announced for Australia included the adoption of a more ‘strategic’ approach to Australia’s interaction with the treaty committee system, a ‘selective’ approach to reporting to committees where ‘appropriate’, the granting of permission to members of the Committee on Human Rights to visit Australia only where there is a ‘compelling reason’ to do so, and a commitment not to sign the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (which would allow individuals to lodge complaints of violation of its terms directly with the United Nations Human Rights Committee).

Criticism of the outcome of this review on human rights grounds was widespread, and does not need to be repeated here. [17] The Australian government’s stance has been widely condemned, on grounds including that a withdrawal from international human rights regimes could expose Australia to trade sanctions, and leave Australia vulnerable to continued and increasingly hostile international scrutiny on human rights. Australia has isolated itself from the international human rights community. [18]

What is of particular interest here, though, are three factors regarding Australia’s role in the international human rights regime. First, the conduct of the 2000 review involved a distinct lack of ‘scrutiny’, ‘transparency’ and ‘consultation’. This directly contradicts statements made as recently as August 1999 regarding Australia’s commitment to treaty procedures. Secondly, the terms of the review as announced in March 2000—the investigation of ‘burdensome’ reporting requirements and an ‘over-emphasis’ in committee decision-making on the submissions of non-governmental bodies—were recast as outcomes six months later—that reporting requirements were overly burdensome and needed curtailing, and that the committee’s ability to scrutinise Australian human rights affairs be limited in various ways. This suggests the review outcomes were known in advance. Furthermore, the decision of the Australian government to reduce compliance, reporting and monitoring of human rights practices provides further evidence as to the lack of practical commitment on the part of the Australian government to ‘scrutiny, transparency and consultation’ in the international human rights treaty system. Thirdly, although treaty procedures have been reviewed in Australia on several occasions prior to this, those reviews were not conducted with the express purpose of questioning the monitoring of Australia’s compliance with international treaty obligations. The March review was conducted, behind closed doors, with this agenda in mind. This enhances the argument that Australia is moving towards non-compliance with international human rights treaties, despite retaining some rhetoric regarding openness. In this light, the government’s stated commitment to openness is much less powerful than the practical, and limiting, effects of its actions regarding the international human rights regime.

ENDNOTES

5. Concluding observations of the Committee on the Elimination of All Forms of Racial Discrimination: Australia. 19/09/94. A/49/18, paras. 535–551. 19 September 1994. [Back]

6. UNCERD. Decision 2(54) on Australia: Australia. 18/03/99. A/54/18, para. 21(2). [Back]

7. UNCERD. Decision 2(55) on Australia: Australia. 16/08/99. A/54/18, para. 23(2). [Back]

8. Committee on the Elimination of Racial Discrimination. Summary record of the 1353rd Meeting: Australia. 23/08/99. CERD/C.SR.1353. [Back]

9. UNCERD. Summary record of the 1324th meeting: Australia. 07/10/99. CERD/C/SR.1324. [Back]

10. UNCERD. Summary Record of the 1393rd Meeting. CERD/C/SR.1393. 29 March 2000. [Back]

11. Committee on the Elimination of Racial Discrimination. Summary record of the 1353rd Meeting: Australia. 23/08/99. CERD/C.SR.1353. [Back]

12. UNCERD. Summary record of the 1393rd Meeting. CERD/C/SR.1393. 29 March 2000. [Back]

13. UNCERD. Summary record of the 1395th Meeting: Australia, Tonga, Zimbabwe. CERD/C/SR. 1395. 03/04/2000. [Back]

14. United Nations Human Rights Committee. Concluding remarks to Sixty-Ninth Session. Press Release. HR/CT/587 (28 July 2000). [Back]

17. See for example Staff Reporters (2000), Pritchard (2000) Arndt (2000) Jopson (2000). [Back]

REFERENCES

Arndt, Bettina (2000). ‘Howard takes on the new colonialism’, The Age, 4 September.

Downer, The Hon. Alexander, MP (2000a). Minister for Foreign Affairs. Media Release: Government to Review UN Treaty Committees, 30 March.

Downer, The Hon. Alexander, MP (2000b). Minister for Foreign Affairs. Joint Media Release: Australian Minister for Foreign Affairs, Alexander Downer, Attorney-General, The Hon. Daryl Williams AM QC MP, Minister for Immigration and Multicultural Affairs, The Hon Philip Ruddock MP. Improving the Effectiveness of United Nations Committees. 29 August.

Gelber, Katharine (1999). ‘Treaties and Intergovernmental Relations in Australia: Political Implications of the Toonen Case’, Australian Journal of Politics and History, Vol. 45, No. 3, pp. 330–346.

Jopson, Debra (2000). ‘Australia could face sanctions: lawyer’, Sydney Morning Herald, 31 July.

Pritchard, Sarah (2000). ‘Facing the Wrong Way on Human Rights’, Sydney Morning Herald, 31 July.

Staff Reporters (2000) ‘Backtrack on rights ‘tragic’, says UN’, Sydney Morning Herald, 30 August.

Katharine Gelber is an Editor of The Drawing Board, and lecturer in Australian Politics with the School of Economics and Political Science, The University of Sydney. Dr Gelber researches public policy, in the area of human rights and free speech.

View other articles by Katharine Gelber:

Combatting Hate in Cyberspace (Digest, Jun 2015)
The Dark Side of the Internet (Digest, Nov 2011)
Freedom of Speech and a Bill of Rights (Digest, Nov 2009)
Academic Freedom in Australia (Digest, Dec 2008)
Constitutional Reconfiguration (Digest, 31 May 2002)
Free Speech, Hate Speech and a Bill of Rights (Journal, Mar 2002)

Human Rights treaties in Australia—Empty words?

ENDNOTES

REFERENCES