Geneva versus Canberra
Australia in the dock at the UN
March 28, 2005 - "Australia was facing a United Nations committee's scrutiny for the first time in five years. The event went unreported back home and the verdict - handed down on March 12 - was the subject of only a few, scattered reports in the press."
"Australia was rebuked for its treatment of migrants, Muslims, asylum seekers, refugees and Aborigines. In the eyes of the Geneva committee, the list of this country's failures on the human rights front has only grown longer since the Howard Government came to office."
Below are some contributions (perhaps they should be called revelations) from David Marr and Spencer Zifcak. Perhaps revelations, because while these issues are part of the public record, Australian media have hushed it all around, in accordance with His Masters Voice.
Geneva versus Canberra
Sydney Morning Herald
The UN has again attacked the Howard Government's record on race. But this time the politicians are shutting up and news of the verdict isn't getting out. David Marr reports.
Les Malezer, having spent years in Switzerland, was not surprised by the Arctic weather Geneva turned on for the Australian delegations a few weeks ago. The sky was flawlessly blue but the city lay under sheets of ice.
A Gubbi Gubbi man in his early 50s, Malezer knows his way around the town and, more to the point, the lakeside palaces where United Nations human rights committees do their work. "The key to being effective is being here," he says. "Nothing happens in Geneva unless you lobby it all the way through."
The former head of the Queensland Department of Aboriginal Affairs has been a familiar, bearded figure lobbying committees in Geneva for a decade, but these days his kind are looking like an endangered species. Malezer is just hanging on.
His job late last month was to guide around the frozen city half a dozen Australians flying in to lobby the UN's Committee on the Elimination of all Forms of Racial Discrimination. They came with briefs from more than 30 non-government organisations (NGOs): legal services, human rights groups, refugee advocates, disability groups and ethnic councils.
The Aboriginal and Torres Strait Islander Commission sent its own man to the hearings. It was to be ATSIC's last hurrah on the international stage before its abolition last week.
Australia was facing the committee's scrutiny for the first time in five years. The event went unreported back home and the verdict - handed down on March 12 - was the subject of only a few, scattered reports in the press. Australia was rebuked for its treatment of migrants, Muslims, asylum seekers, refugees and Aborigines. In the eyes of the Geneva committee, the list of this country's failures on the human rights front has only grown longer since the Howard Government came to office.
The UN was unimpressed - and that's the Geneva problem in a nutshell: what works in Canberra doesn't work in in this town. The Howard Government message carries no particular clout. The power of jobs and patronage, so persuasive back home, has no impact in Geneva.
The Government these days deeply resents this scrutiny, but is locked into it by treaty. The committee's verdict last time round, in 2000, produced one of the great dummy spits of the Howard years, with the Foreign Minister, Alexander Downer, roaring: "We won't cop it any longer. We are a democratically elected government in one of the most liberal and democratic countries you will find on Earth. And if a United Nations committee wants to play domestic politics here in Australia, then it will end up with a bloody nose."
Ministers called the committee's work insulting, unbalanced, tendentious, ill prepared, poorly argued, blatantly political and partisan. In late 2000 they demanded the committee change its ways - to give, in particular, less weight in future to criticism by NGOs and pay more attention to "the considered reports submitted by the Government".
The UN was unimpressed - and that's the Geneva problem in a nutshell: what works in Canberra doesn't work in in this town. The Howard Government message carries no particular clout. The power of jobs and patronage, so persuasive back home, has no impact in Geneva. Only diplomacy has a chance and it hadn't worked miracles.
The Australian bureaucrats flying into Geneva knew that five years of lobbying had left the ground rules essentially unchanged. That meant the NGOs would lobby committee members in the days leading up to the official hearings in the first couple of days of March. There was a lot of ground to cover. This was Australia's first appearance before the committee since Tampa, the "Pacific solution", the growth of the mandatory detention system, the "mainstreaming" of services to Aborigines, cutbacks to the Human Rights and Equal Opportunity Commission, the dismantling of ATSIC, new security laws affecting Australian Muslims, the invention of temporary protection visas and - despite some improvements - the continuing intractable problems of Aboriginal Australia.
There are still vivid memories in Geneva of the performance before the committee in 2000 of the former immigration minister Philip Ruddock. This time the Australian team at the official hearings in the Palais Wilson was led by the ambassador to the UN, Mike Smith - and his brief was not conciliatory.
After an upbeat recital of initiatives to combat racism in Australia, he turned on the 18 committee members, describing their work last time as "cursory" and "unreasonable". He accused them of largely ignoring the progress being made in Australia while displaying "an unquestioning acceptance" of the Government's critics.
Perhaps anticipating another unhappy outcome, Australia had decided to put in the boot. It was not a good omen. The room was tense. Regis de Gouttes of France, headphones clamped to his ears, declared the ambassador "exceptionally rude" and Jose Lindgren Alves of Brazil told Smith: "As a veteran diplomat, this statement, with its language describing programs and attacks on NGOs, reminds me of the sort of statement from communist bloc countries and Latin American dictatorships that Australia used to condemn."
Where things went wrong
Australia's troubles began when the first American was elected to the UN committee in 1998. Gay McDougall grew up in segregated Georgia, graduated from Yale Law School and served as an independent electoral commissioner in the first post-apartheid elections in South Africa. On a then rather dozy committee, McDougall was smart. Australia made the mistake of lobbying - successfully - for her to become the designated expert - or "country rapporteur" - for Australia.
She arrived as the fight to save native title switched from Canberra to Geneva. With John Howard's post-Wik rollback now law, advocates for native title were looking for leverage in the many human rights conventions Australia had signed over the years. At this point ATSIC began to fund a program of international advocacy. Malezer was ATSIC's very active man in Geneva.
McDougall had an ace up her sleeve. At an Aspen Institute seminar one summer, she had met Ron Castan, QC, senior counsel in the Mabo case and a key adviser on the original Native Title Act. Few knew that complex legislation better or were more committed to saving it than Castan. McDougall told the Herald: "I got the idea that I should ring him up to help me understand in more detail what had happened to the law. He and other members of his law firm were very helpful."
In August 1998, the committee issued Australia with an "urgent action" notice - the first issued to a Western nation. Formal hearings in Geneva the following March found a risk of "acute impairment" to native title rights. The committee declared Australia in breach of its obligations under the Convention on the Elimination of All Forms of Racial Discrimination. This was another first: the first breach finding made against a Western nation.
The former human rights commissioner Mick Dodson remarked sourly: "We're in the same company as Bosnia, Uganda and Ecuador."
Canberra took Geneva's verdict very badly. Within 24 hours, the finding was denounced by Howard, Downer and the then attorney-general Daryl Williams, who declared the result "an insult to Australia and all Australians".
McDougall had planned to lead a team of three committee members to Australia "to get a better feel for the issues we were discussing". The Government refused to issue the necessary invitation. McDougall said: "It was a surprise to us all."
There are still vivid memories in Geneva of the performance before the committee in 2000 of the former immigration minister Philip Ruddock
The UN is not used to countries behaving like this. "We expect states to be diplomatic, polite, understanding and willing to explain," McDougall told the Herald. "They do not show the level of annoyance and seeming insult that we got from the Australians. We were all taken aback."
More than once, she heard Australians argue that her committee was treating their country as if it were a backward nation not a democratic state. "But we all expected Western democratic states to be the most co-operative and welcoming, the most supportive of the committee system. And that was not the case."
More than political outrage and hurt pride lay behind Canberra's response. The US and Western Europe have constitutions that explicitly protect human rights. Such absolutes shape the politics of most Western nations. But not Australia. Here, politics decide just about everything. The sort of rights Geneva talks about - and Australia signed up to under Labor governments - are just part of the political mix back home. They're not decisive. Howard put it this way: "Australian laws are made by Australian parliaments elected by the Australian people, not by UN committees."
The forlorn hope of persuading McDougall and her colleagues to this pragmatic Australian point of view seems to have impelled Ruddock - as minister for multicultural affairs and reconciliation - to lead the delegation to Geneva in 2000. Extraordinary efforts were made to woo the committee members. Lobbying was intense and respectful. But then came Ruddock's performance at the Palais Wilson hearings - the stuff of legends.
Witnesses talk of him draped over the table, bantering with the committee, joking, giving patronising answers to complex questions. Malezer found it embarrassing. The Herald correspondent Simon Mann reported "audible groans" from the public gallery. McDougall told the Herald she had not seen the like of Ruddock's performance in Geneva before or since. "I think he underestimated the committee," she said. "He learnt some things, I think."
Ruddock's big pitch was that Canberra should not be held responsible for racially discriminatory policies of the states and territories - policies such as mandatory sentencing. It's an argument that's never appealed to the committee. McDougall reminded him states' rights were a big issue where she comes from: "We fought a bloody civil war ... over whether states were free to engage in the abhorrent practice of slavery." Ruddock interjected: "I think I would have fought for that, too." McDougall said she hoped the Australian minister "would have been on the same side as me".
The committee's "concluding observations" were pithy and cold. Diplomatic niceties were absent. Praise was scant. The committee found fault with Australia for having no constitutional protection against racial discrimination; for failing to restore native title rights; for the faltering reconciliation process; for the survival of mandatory sentencing in Western Australia and the Northern Territory; for the failure to compensate and apologise to the stolen generation; for proposals that might have an "adverse effect" on ATSIC and the Human Rights and Equal Opportunity Commission; for the high rate of imprisonment of indigenous Australians; and for the detention of asylum seekers.
The committee acknowledged "the efforts being made to increase spending on health, housing, employment and education programs for indigenous Australians" but remained "seriously concerned about the extent of the dramatic inequality still experienced by an indigenous population that represents only 2.1 per cent of the total population of a highly developed industrialised state".
It was a big story for a time, driven by Canberra's rage. Geneva delivered little for indigenous Australians, but a lot of people heard about that committee. "We were not ignored," McDougall said. "We got an active response from Australian NGOs, the media, the Parliament and from the Government. The Government response spoke of a sensitivity to the question of whether they were doing right, and to the sting of international scrutiny."
The 2005 round
By the time Australia found itself facing the committee again this year, changes in Geneva were playing to its advantage. For a start, McDougall was gone. She had not been renominated by the Bush Administration when her four-year term expired in 2002. McDougall is now executive director of the Washington advocacy group Global Rights.
Les Malezer was still standing, but the apparatus of Australian indigenous lobbying to the UN built up since the late 1970s was falling apart around him. The resources put into Geneva have always been controversial in the internecine world of black politics. Geoff Clark's ATSIC funded these efforts generously. For several years there was a permanent office in Geneva - "humble but effective", says Malezer - but this closed at the end of 2003 as the money began to dry up.
By this month, all four indigenous organisations with official accreditation to the UN were in deep trouble. ATSIC was weeks away from abolition; the NSW Aboriginal Lands Council was under administration; the NAILSS (the National Aboriginal and Torres Strait Islanders Legal Services Secretariat) was broke and Malezer's FAIRA (the Foundation for Aboriginal and Islander Research Action) was virtually an empty shell. Malezer won't say how he's surviving financially in Geneva. Colleagues speculate he's drawing on his own savings.
Also absent from the hearings in 2005 was the Human Rights and Equal Opportunity Commission. The Government has slashed its funding. Legislation curtailing its freedom of action is expected back in Parliament after July. Tom Calma's bad back kept the social justice commissioner from making the flight over, but it seems also the commission thought this was no time to be taking the Government to task for its failings - in public - in the world capital of human rights.
The committee that assembled this month was also much changed. The old timers had all but disappeared since Australia was last examined. The communists are down to one: China. This was a committee of mostly new faces - a younger, reinvigorated collection of human rights experts from Europe, North and South America, the Middle East and Asia.
On March 12 they again gave Australia the thumbs-down. Their language was far more diplomatic this time. Half a dozen positive findings were followed by a list of 19 "concerns and recommendations". Many had been raised before, in 2000. ATSIC, native title, the stolen generation, reconciliation, constitutional protection from racial discrimination, mandatory sentencing, the over-representation of Aborigines in prisons and the fate of HREOC may be dead issues in politics back home, but they're still alive in Geneva.
The list of fresh concerns raised by the committee in 2005 include the impact of temporary protection visas, the plight of stateless long-term detainees, the treatment of asylum seekers by the media, the shortcomings of the Racial Discrimination Act, the impact of counter-terrorism legislation that "may have an indirect discriminatory effect against Arab and Muslim Australians".
Canberra has learnt one lesson superbly. Instead of raging and complaining about Geneva's intrusion into Australia's domestic affairs, it's much better to shut up. The effort ministers put into denigrating the committee system the last time round only gave the issue more oxygen. After the latest verdict a little more than a fortnight ago, there was no thunder from Howard, Downer or Ruddock. Not even a press release. Silence effectively killed the story.
After some prodding, the offices of Downer and Ruddock told the Herald that the committee's findings were being carefully considered. The Attorney-General's spokeswoman said Ruddock welcomed the committee's "new constructive dialogue" and placed "particular importance in the fact that the committee has not found Australia in breach" of its obligations. The committee's concerns would "not be rejected without careful assessment".
A spokesman for the Foreign Minister said: "These UN committees need to work in a more effective and credible way. We have been pushing very hard for reform of the committee system. We're pleased with the momentum that has built up for reform and will continue to push for reform."
The strange silence surrounding the latest verdict - it didn't help that ATSIC was no longer about to co-ordinate the press campaign - means there's little political downside for a government choosing to ignore Geneva.
Yet the race discrimination convention Australia signed up to in 1966 and turned into domestic law in 1975, is still the benchmark for all Australians arguing human rights. It's at the heart of all the rhetoric. The shame of seeing our own failings exposed by the committee was supposed to drive change. It's not working out that way. These days Australia's perceived shortcomings are causing more angst in Geneva than they do back home.
"They're glass on the floor," one official told the Herald. "You tip-toe down the corridors knowing you're being watched." And activists such as Les Malezer are walking the same corridors, spreading the word that the Australian Government "is an oppressor of rights. Other governments see this and I make sure they see it."
In trouble again: Australia in the dock at the UN
Human rights watchers held their collective breath early last month, when a delegation from Australia appeared before the United Nations' Committee on the Elimination of all Forms of Racial Discrimination (CERD). Australia is a party to the international treaty outlawing racial discrimination and the delegation was appearing before the Committee to report on the nation's progress in eradicating it.
The reason for this intake of breath was that on the last occasion an Australian delegation appeared before the Committee in 2000, the two parties fell out spectacularly. The Committee issued a highly critical report on race relations in this country and the Government responded with a searing attack on the entire UN human rights treaty system. The Committee concluded that Australia was going backwards, its protection of human rights in this sphere having noticeably fallen away. The UN treaty system, the Government responded, was sorely in need of overhaul and criticism of its record on human rights was misconceived and misplaced.
Subsequently, the Government had announced a series of measures designed to make clear its displeasure and to provoke a rethink. Australia, it announced, would be more economical and selective in reporting to UN human rights committees. It would admit UN committees and rapporteurs who wished to review the protection of human rights only if there was a compelling reason to do so. It would reject 'unwarranted requests' from treaty committees to delay the removal of unsuccessful asylum-seekers. It would press for the reform of the treaty system. Perhaps most importantly, by way of retaliation, the Government announced that it would not sign on to a new protocol to the treaty for the elimination of discrimination against women. The protocol would have allowed Australian women to take their complaints of discrimination to the UN for examination where all domestic remedies had been exhausted.
These measures in turn were not received well at the UN. The head of the UN's Treaty Section remarked that:
'It is important to remember that criticism is not leveled for the sole purpose of criticizing a country. The criticism is leveled for the purpose of improving in this case, the human rights framework that is applicable to all countries in the world and the ultimate loser would be the international human rights framework, if a country were not to take such criticism seriously...and necessary action taken domestically.'
Alexander Downer responded in rather less measured terms when he told the ABC that:
'If a UN Committee wants to play domestic politics here in Australia, then it will wind up with a bloody nose.'
All eyes then were on the Australian delegation when it returned five years later to present its most recent report to CERD. The clash lived up to expectations. The delegation was not led on this occasion by Phillip Ruddock. His insensitivity and underestimation of the Committee had been in part responsible for the falling out in 2000 (The Attorney-General's lamentable performance is described in my book Mr Ruddock Goes to Geneva, UNSW Press, 2003). Instead Mike Smith, Ambassador to the UN in Geneva, stepped up to the plate. He began cordially but soon adopted the strident, dismissive approach of his predecessor. Admittedly Smith's task was difficult. After all, this was the first time Australia had appeared before the Committee since a range of controversial policies relevant to an analysis of Australia's race record had been implemented. These included the extension of mandatory detention, the creation of the 'Pacific Solution', the introduction of the temporary protection visa system, the advent of anti-terror laws, the cutbacks to the Human Rights and Equal Opportunity Commission (HREOC), the abolition of ATSIC and the failure to adequately address the seemingly intractable problem of Aboriginal disadvantage.
Smith, however, was upbeat. He pointed out to the Committee that comprehensive legislation outlawing racial discrimination, and in some states racial hatred, had been introduced. The Government had developed a new National Framework for Human Rights. This set governmental priorities for enhancing the enjoyment of human rights and included a wide range of programs for indigenous Australians. Similarly the Government had launched a new multicultural policy designed to strengthen community harmony and, at the same time, value diversity. A Charter of Public Service in a Culturally Diverse Society had been set in place which required all government services to be attuned to the needs of people from different ethnic and linguistic backgrounds.
Smith acknowledged that inequality and disadvantage among indigenous peoples persisted. This he blamed on the historical legacy of dispossession and marginalization and the clash between 'traditional values and the inescapable demands of the modern world.' Nevertheless, there had been successes. The percentage of Aboriginal children in secondary education had increased to 40 per cent. Indigenous unemployment, while still too high, had decreased. Home ownership had risen, household overcrowding had decreased and infant mortality had fallen by 25 per cent.
For reasons best known to himself, or perhaps to the Government that instructed him, Smith then chose to launch a scathing attack on the Committee. The Government, he said, had been particularly disappointed with the Committee's previous, concluding observations. It had given 'cursory treatment to complex issues and largely ignored the significant progress made in Australia on indigenous issues'. Worse still, the Committee's observations had reflected an unquestioning acceptance of the arguments of non-governmental organizations. Further, it was quite unreasonable for the Committee to make recommendations with respect to Aboriginal reconciliation, native title, state mandatory detention laws, and resource allocation to address indigenous disadvantage. These were beyond its remit and were matters properly the subject of democratic deliberation and decision in Australia.
In the subsequent exchanges Committee members, who almost without exception are independent human rights experts, were clearly unimpressed. One described the Ambassador as exceptionally rude. Another commented on the irony of Australia attacking the opinions of non-governmental organizations when it had itself criticized other governments in Latin America and communist Eastern Europe for doing exactly the same. The Committee's rapporteur noted that the views expressed by the Ambassador were neither shared by Australia's former human rights commissioner nor by a recent parliamentary inquiry. The whole point of drawing on information from non-governmental sources and UN mechanisms, he said, was to enable the Committee to obtain a more complete and balanced view.
Unsurprisingly then, the Committee's concluding observations on this occasion retained their critical character. The Committee welcomed racial hatred legislation, progress in enhancing the economic and social rights of indigenous people, the implementation of diversionary programs to keep indigenous young people out of gaol, the abrogation of mandatory detention legislation in the Northern Territory and the adoption of the public service charter.
It then proceeded to enumerate fifteen areas of continuing concern. The most significant of these were the absence of any constitutionally entrenched guarantee with respect to racial discrimination; the failure of the Commonwealth and some states to enact legislation outlawing racial hatred; the discriminatory nature of native title legislation; the wide gap that exists between indigenous peoples and others in the areas of health, housing, employment, education and income; the striking over-representation of indigenous people in the prison population; the mandatory detention of asylum-seekers - particularly women, children, unaccompanied minors and stateless people; the almost total rejection by the Government of the comprehensive recommendations of the Council for Aboriginal Reconciliation; and the radical downsizing of the Human Rights Commission. In short, Australia emerged again with a bloodied nose.
What then should be made of all this? It is a striking fact that amidst all the criticisms leveled against Australia by not only this UN Committee but many other similar bodies, the Government has not once acknowledged the validity of a single criticism. This is a pity. Relatively speaking, Australia's human rights record remains satisfactory. It would do no harm and probably some good if we admitted openly that there have been problems and that there is a genuine desire to address them. Instead, however, the Government has chosen to shoot the messenger. Why might this be so?
The most straightforward explanation would be that the UN's criticisms have been misguided and consequently that the Government has been right to reject them. Such a view, however, cannot reasonably be maintained in the face of the progressive intensification of international, political criticism of Australia's human rights performance and the force of independent, international and domestic legal opinion that contradicts the Government's positions - particularly as these relate to indigenous peoples and people seeking asylum.
This is not to deny that some UN criticism has been misplaced. In the present imbroglio, for example, the Committee's understanding of Australia's constitutional arrangements has sometimes been awry. Its criticism of what it has seen as discriminatory immigration policy similarly has not always been well founded. Nor is it to deny that the UN treaty committee system is in need of reform - the case for reform is compelling. Nevertheless, the Government's refusal to admit even the most minor infraction of its international obligations in the face of informed and concerted, legal and political censure would appear to require a more persuasive account of its anti-UN stance.
From another perspective, it may be that the dynamics of domestic political disagreement hold the key. The Government's criticism of the UN can legitimately be seen as yet another example of wedge politics. To attack the UN over human rights is calculated to alienate the socially progressive wing of the Labor opposition while appealing to its blue-collar affiliates who can be expected to be unimpressed by 'foreign' condemnation. The political advantages of such a strategy are obvious.
The pervasive sense of physical insecurity felt by many Australians following September 11 events appears to me, however, to constitute the most persuasive source of explanation. In the post September 11 world, it is not to the UN but to the US that many Australian eyes have turned. In response, the Howard Government has aligned itself ever more closely with the US and Britain. There has been a disengagement at many different levels from countries and cultures that do not resemble our own. A new unilateralism is abroad, one which is deeply popular here because it returns Australians to a more secure and comfortable identification with nations and peoples 'like us'. The disengagement has spilt over into relations with international institutions of which the UN is the prime example.
The US has never been a good UN citizen. For years it did not make its designated financial contribution to the organization. It does not recognise the jurisdiction and authority of the International Court of Justice. It has failed to ratify a raft of international human rights and environmental conventions. It was a signal absentee from the list of nations establishing the International Court. In going to war against Iraq in the absence of a specific Security Council resolution it took itself beyond the reach of international law altogether. In a boyish eagerness to court American favour, it is plain that the Australian Government has decided that it is acceptable for its behaviour to be informed by a similar sense of patriotic inviolability. As the Prime Minister put it, in words reminiscent of those he uttered with respect to the repulsion of prospective refugees:
I mean in the end we are not told what to do by anybody. We make our own moral judgments ... I'm not going to cop this country's human rights name being tarnished in the context of any domestic political argument ... Traditionally these matters are the prerogative of states.
In this political environment, then, the Howard Government safely makes hay with multilateral organisations like the UN which seek to constrain Australia's sovereign discretion. Australia's commitment to the observance of universal human rights standards, and its co-operation with the international institutions established to monitor them, has been one regrettable casualty of this populist, foreign policy position.
About the author
Spencer Zifcak is Associate Professor of Law at La Trobe University in Melbourne. His latest book is Globalisation and the Rule of Law published by Routledge.
Other books include Mr Ruddock Goes to Geneva, UNSW Press, 2003.