Speaking out of a webcam from perhaps the most secretive regime on earth, the North Korean official outlined his country’s “grave concerns” for human rights – not in his own authoritarian nation, where millions are said to be on the brink of starvation following brutal COVID-19 lockdowns; he was talking about Australia.
In January, the Australian government faced a grilling before the United Nations during the latest review of its human rights record. All countries in the UN find themselves in the hot seat once every five years, and it often devolves into finger-pointing – this time “recommendations” for Australia from North Korea and a heated warning from China not to “make baseless charges against other countries for political purposes” raised eyebrows.
But while Australia is a far cry from such regimes, experts say we still have some concerning blind spots for an otherwise robust democracy – particularly around the treatment of asylum seekers and Indigenous Australians.
So how does our human rights record actually stack up on the world stage? What is being done about it? And how might a bill of rights make a difference?
What are human rights anyway?
We often talk about our rights – to free speech, to protest, even supposedly to remain fiercely mask-free (as one visitor to a Bunnings store very confidently declared during the height of Victoria’s second wave of COVID-19). But Australia is not the US, where many can recite their Bill of Rights offhand. Here, such freedoms are less certain than we might think.
When angry barons marched on a greedy English king eight hundred years ago, the King reluctantly signed the Magna Carta, spelling out freedoms such as the right to a fair trial (of sorts) and separation of church and state. After the Enlightenment, this list grew – the right to life, liberty and the pursuit of happiness (for all wealthy men, at least) became foundational to America as it threw off the British Empire.
Today, at the Human Rights Law Centre in Australia, Hugh de Kretser keeps a copy of the “one of the finest documents ever written” handy on his desk: the Universal Declaration of Human Rights. It was drafted after the atrocities of World War II by the newly formed United Nations, when the world came together to say “never again”. While not legally binding itself, this list of rights sets the foundations for a number of binding treaties of which Australia is a signatory, recognising all people as “born free and equal”.
But, while Australia was among the nations who helped write it, more than 70 years on, we are the only Western democracy without our own explicit charter of rights. Instead, we have a “patchwork” of protections, says international law expert Dr Fiona McGaughey, laws to protect against discrimination, for example, as well as privacy.A handful of rights are already enshrined in our constitution including voting and freedom of religion. Others, such as freedom of speech and the press, are implied by the law.
“There’s a safety net of laws but that safety net has many holes in it,” de Kretser says.
But why are other countries judging our record? Isn’t that just politics?
McGaughey remembers sitting in the audience during Australia’s last UN human rights review in 2015 and watching the seats around her fill up. “We always attract a lot of interest, lots of countries want to review us.”
This time around, during a pandemic, the seats were largely empty but the list of countries lining up on webcam remained long. And it unfolded against the backdrop of Australia’s intensifying war of words (and trade) with China.
“You get people saying, ‘Who are they to point the finger at us, they’re much worse’, but that’s how it works,” McGaughey says.
Any of the 147 countries in the UN can step up to the microphone during a country’s human rights review, she says, no matter their own record.
“This peer review process is quite unique for the UN, actually. They usually use independent experts, quasi-judicial bodies. Of course, states will take their own position based on their relationship to that state or the issues they consistently like to highlight.
“But that’s not to say it’s purely an exercise in theatre or politics. Everyone knows what the dynamics are.”
And experts say that the concerns raised again and again for Australia are valid – usually drawn from other independent reports and UN findings.
So Australia isn’t being singled out?
No country is perfect. The US, long the bastion of civil liberties, has its own serious racial injustice problem – the disproportionately high number of African Americans behind bars (and killed by police) sparked the Black Lives Matter movement last year. Under Trump, an immigration crackdown at the Mexican border had separated thousands of children from their families before public backlash saw it called off.
Still, experts such as de Kretser say Australia stands out for “two major human rights failures in an otherwise successful democracy”: how we treat asylum seekers and how we treat the first people of Australia, Aboriginal and Torres Strait Islanders.
McGaughey agrees Australia is something of an outlier on the world stage. On the one hand, it’s multicultural and free. “On the other, our treatment of asylum seekers, in particular, is unusual so we do get criticised more than the other democracies. Hence the big turnout [on review day]. This time it struck me how similar [the concerns] were to 2015. Although now we’re also seeing climate change [inaction] emerge as a human rights concern from places like Fiji [and France].”
What is Australia’s human rights record?
Since our last grilling before the UN, Australian bureaucrats stress the nation has legalised same-sex marriage, rolled out the new National Disability Insurance Scheme to give people with disabilities more choice, and launched a suite of inquiries into the institutional mistreatment of vulnerable people, including in disability and aged care. It’s also vowed to investigate those shocking reports of war crimes allegedly committed by Australian soldiers overseas, which China has seized upon in recent months, and continued to campaign for human rights beyond our borders including against the death penalty (as highlighted by the tragic case of Bali Nine pair Myuran Sukumaran and Andrew Chan).
When Australia won a coveted seat on the UN’s official human rights council in 2017, it promised to swiftly hold a referendum on constitutional recognition of Indigenous Australians. But nations taking part in the 2021 review were quick to point out that, even under the government’s new agreement with Indigenous leaders to at last design a Voice to Parliament, progress has been slow. Indeed, decades of reports outlining how to improve the lives of Indigenous Australians (which are still, on average, nine years shorter than their non-Indigenous counterparts) have largely been ignored.
The national Closing the Gap strategy, revamped in July, has failed to eliminate Indigenous disadvantage in all but two target areas of seven since it began in 2008. First Nations people remain vastly over-represented in both the child protection system and our prisons, often arrested for less serious offences. Since leading academic Professor Marcia Langton worked on the royal commission into Aboriginal deaths in custody in 1991, hundreds more Indigenous Australians have died in cells and handcuffs, frequently because of preventable medical complications, and yet she says many procedures in watchhouses and jails have not changed.
Australia has also drawn criticism among its peers for its low age of criminality –10-year-olds can be locked up compared to an international standard of age 14. Last financial year, almost 600 children aged between 10 and 13 were imprisoned in Australia. More than 60 per cent were Indigenous. In 2020, the decision on whether to raise the age was pushed back by state and federal leaders, to the disappointment of medical, legal and Indigenous groups.
Langton says the low age of criminality is now her most pressing concern for Indigenous justice “because of the extraordinarily high rates of incarceration of Aboriginal children”.
De Kretser puts Australia’s resistance to a change so far down to “political cowardice”. “It’s a simple fix, there’s overwhelming support and evidence for it, these communities will be safer for it because we won’t be locking kids into a lifetime of crime, we’ll be intervening early with supports instead to get them back on track. But there’s law and order politics, there’s fear.”
It’s the same mindset, he says, that gave birth to Australia’s now notorious immigration policy. Since 2013, people seeking safe asylum in Australia by boat have been turned back at sea, deported or held in indefinite offshore detention. Australia insists this is deterring people smugglers and so saving lives that might otherwise be lost on the dangerous crossing – but the UN and other international bodies have repeatedly found it breaches binding conventions on refugees, and against torture.
Those held in detention can face years waiting for their refugee claim to be assessed, often in poor conditions. At least 12 asylum seekers have died at offshore sites, a number of them suicides. At times, asylum seekers (including children) have been forced to go to court to access proper medical care on the mainland. In 2018, the Queensland coroner ruled that a slew of clinical errors and government delays were to blame for the death of 24-year-old Hamid Khazaei (from a leg infection picked up in detention on Manus Island).
In 2019, “medevac” laws to make it easier for doctors to transfer asylum seekers to Australia were passed and then swiftly repealed after the last federal election. Today, about 600 people are still held on Nauru and Papua New Guinea with another 700 resettled in the US under a deal brokered by the Turnbull government and about 150 others are held on the mainland following medical evacuation.
When approached for comment, the government did not provide updates on asylum-seeker numbers nor answer questions on whether it would open up its offshore facilities to external oversight in line with the optional protocol to the convention against torture, which Australia ratified in 2017.
“They’re meant to open up their detention centres to monitoring, including from the UN, but they don’t seem to have implemented it,” McGaughey says. “That’s why you saw it come up in the UN review, [as well as countries] again recommending an end to [offshore detention] itself.”
Right now, Australia scores just 4.4 out of 10 on a global index measuring freedom from torture– largely because of the issues above – and we have fallen on other civil liberty measures too as some state legislation around protest is tightened in the wake of environmental demonstrations and national security laws and surveillance beefed up.
A recent report by global monitoring group Human Rights Watch called out recent, “unprecedented” crackdowns on journalists and whistleblowers over classified information, culminating in police raids on the home of then News Corp reporter Annika Smethurst, and the Sydney headquarters of the ABC over two days in 2019. Charges were eventually dropped against those journalists and, one parliamentary inquiry later, the Morrison government has agreed to review its national security laws to better protect public interest journalism (as well as Australia’s famously restrictive defamation laws). But the Commonwealth is still pressing ahead with a secret trial of the whistleblower “Witness K” who revealed Australia’s East Timor spying scandal and his lawyer, Bernard Collaery.
Experts worry that a growing culture of secrecy and surveillance has now crept into Australia’s halls of power, including the government’s mega-department, Home Affairs. In its own recommendations for Australia, the US was among countries calling for better protections on press freedom, but Australia’s UN delegation insisted its national security laws struck the right balance between protecting the community from terrorist threats and freedom of speech.
The UN’s special rapporteur on extreme poverty, Phillip Alston, meanwhile, has pointed to Australia’s disastrous “Robo Debt” debt recovery scheme and the use of cashless welfare cards in remote communities as bringing us closer to a “digital welfare dystopia”.
Will there be consequences if we don’t lift our game?
During Australia’s last review in 2015, McGaughey expected our international clout would spare us any serious criticism. “I was completely wrong.”
But while McGaughey says the subsequent stern recommendations are a sign of how seriously many countries take Australia’s human rights performance, she notes they haven’t stopped its election to key seats within the UN, such as the security council. Australia remains a well-respected and powerful democracy. “I haven’t seen it treated in a punitive way by other nations for this,” McGaughey says.
Of course, when it comes to international law, there’s no real enforcement, save “naming and shaming”.
“There’s just [diplomatic] pressure,” de Kretser says. “It’s not like a domestic court.”
Except in the case of war crimes and crimes against humanity, no one is going to arrest you for breaking a treaty. In 2019, the international criminal court ruled that Australia’s offshore detention regime was “cruel” and unlawful. But, while the imprisonment of refugees and asylum seekers may form the basis of an international crime, it did not meet the court’s high threshold for prosecution.
Still, as a wealthy democracy with strong institutions, de Kretser says Australia should be leading the world on protecting human rights. “It’s in our national interest. We’re letting ourselves down.”
And the consequences could be more severe than mere international embarrassment.
“Australian democracy is being eroded in recent years,” de Kretser says. “[What’s happened] in the US [under Trump] shows you absolutely cannot take democracy for granted. We really should be listening to the international and the domestic concern here.”
Do we need our own bill of rights?
It’s the perennial question in Australia. Countries such as Canada and America have enshrined a bill of rights in their constitution. Others such as the UK and New Zealand have created parliamentary charters able to be more readily changed by lawmakers. Three jurisdictions in Australia (Victoria, the ACT and, most recently, Queensland) already have their own parliamentary charters of rights – now put to the test during COVID lockdowns.
While a 2009 inquiry recommended implementing a national charter of rights, it was never picked up by either side of politics. And, speaking to the UN, senior bureaucrat Andrew Walker said the Morrison government had no plans to change that.
Australia has instead set up a parliamentary committee to check whether new legislation is compatible with international human rights treaties but experts are quick to point out that the laws can still pass, even if they fail this test.
“It’s a step towards transparency but it’s not enough,” de Kretser says.
Of course, having a charter doesn’t mean the end of human rights violations. Even in the ACT’s much-lauded “human rights jail”, there are concerning reports of overcrowding, extended lockdowns and strip searches. But de Kretser says a charter does give authorities such as police and prisons a framework against which to measure their policies. And it gives people the power to take action if those rights are breached.
“It can prevent abuses happening,” he says. “You need to have that … legal incentive to make sure governments take it seriously.”
Since Victoria’s charter came into force, he says the police force has overhauled its policies on how prisoners are kept in cells and strip searches in women’s prisons have fallen. When a cafe owner challenged the curfew imposed by the state government during Victoria’s second wave of coronavirus, the curfew was found to be a proportionate restriction on freedoms given the competing need to protect life as the virus spread. By contrast, a hasty and harder lockdown of nine public housing towers in Melbourne’s north, following concerns about an outbreak, was found by the Victorian ombudsman to have breached human rights.
“This is where a charter is so powerful,” de Kretser says. “When governments face agonising choices, it can be a compass.”
Some experts now fear the federal government’s proposed laws to enhance religious freedom will override existing anti-discrimination legislation without a clear Australian charter of rights.
Eleanor Roosevelt once commented of the Universal Declaration of Human Rights that such documents “carry no weight unless the people know them, unless the people understand them, unless the people demand that they be lived”.
Unlike Americans, McGaughey says Australians seem less aware of their rights. “Even coming from Ireland and having lived in Europe, there’s a strong culture around people knowing their rights. I see that less in Australia.”
But that universal declaration was drafted with two world wars still close behind in the rearview mirror.
“The rights are there for a reason, to protect people. We cannot be complacent.”