The empty platitudes of Australian human rights

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In the one week, Australia's human rights record made headlines in two quite different ways. First, the UN announced that Australia would be joining the Human Rights Council. Subsequently, the UN Human Rights Committee criticised Australia for 'chronic non-compliance' with the committee's recommendations.

Julie BishopIndeed, it reported that Australia's non-compliance was 'completely off the charts'. The dissonance of these two stories calls into question Australia's commitment to human rights, even as it proclaims its global human rights leadership.

As a field of law, human rights emerged in the post-WWII context of the UN's universal declaration. Their foundation lies in recognising the dignity of humanity, and translates a somewhat esoteric understanding of a person's inherent value into a legal right with concomitant legal responsibilities. As a question of law, those responsibilities lie with the state. In a domestic context, the state has the power to censure individuals (or corporations) who breach the established human rights of another.

The development of a human rights framework as law reflects some of the underlying principles of liberalism, including notions of personal freedom and the idea of rights as inherent. To the extent that human rights go beyond these ideas, they reflect additional ideological, political and cultural foundations.

These foundations are reflected also in a broader non-legal and non-technical understanding of human rights that suggests an appreciation of our 'right' as an individual to live our lives free from the interference of others, but supported by government action. Because of the cultural and ideological construction of human rights, in a legal sense such rights manifest unevenly across the world.

It would be misguided, however, to assume that a liberal democracy such as Australia would necessarily embrace human rights. Despite an ostensible cultural fit with the individual freedoms supported by human rights as law, there remains considerable resistance to the uptake of human rights in Australia — both in general social discourse, and as a legal framework per se.

Section 18C of the Racial Discrimination Act is a case in point. The provision prohibits an act that 'offends, insults, humiliates or intimidates' and that is directed at the 'race, colour or national or ethnic origin of the other person or of some or all of the people in the group'. This has garnered loud criticism in some quarters as running counter to another freedom — freedom of speech, otherwise somewhat unfortunately described by our Attorney-General as 'freedom to be a bigot'.

 

"The Australian government habitually disregards human rights altogether, both in terms of the text of the law, and in its cultural orientation to the question of the inherent value and dignity of humans."

 

Opposition arguments tend to ignore, however, the text of the relevant law which goes on to provide a host of exceptions to the offence in s18D. Taking the arguments at face value however, the concept of freedom in this case, takes two different conceptions: we all agree on protecting freedom, but how we imagine freedom to look like is quite different.

This example highlights an inherent limitation in a rights-based approach to protecting freedoms. Once everyone is entitled to rights, each right will run counter to other rights and we need some mechanism for breaking this deadlock. Our freedoms therefore will inevitably be constrained to the extent that individuals must live in societies comprised of humans with an identical set of inherent rights and freedoms.

But the Australian government's approach to human rights is far less nuanced than this somewhat abstract explanation of our shared concept of freedoms and our differential conceptions of how freedoms might be expressed in law. I say this because the Australian government is habitually disregarding human rights altogether — both in terms of the text of the law, and also in its cultural orientation to the question of the inherent value and dignity of humans.

Foreign Minister Julie Bishop (pictured) has said that Australia would use its term on the human rights council to focus on 'the empowerment of women, indigenous rights, strong domestic human rights institutions and the like'. The baldness of this statement in light of ongoing state-sanctioned breaches of human rights points to the lack of coherence in the government's position.

The Northern Territory Intervention continues to abrogate the self-determination of Aboriginal Australians through mandating limits on personal expenditure of welfare money. Using a system of data surveillance known ominously as The Capability, the Australian government proposes to collect a database of citizens' facial images to feed an algorithm that will recognise us instantly wherever we go. This is a part of building a state surveillance infrastructure that enables government to infringe human rights including to privacy, and potentially of freedom of movement, freedom of assembly, and freedom from arbitrary arrest.

The government has already enacted legislation permitting the pre-charge detention for up to two weeks of 'terror suspects', including children as young as ten. This demonstrates its preparedness to encroach on human rights to procedural fairness — indeed Victorian Premier Daniel Andrews has said that 'civil liberties are a luxury'. Another name for civil liberties is human rights. Australia is, however, practiced at detention without trial, notably in its offshore detention centres where deliberate policies inflict further misery on those incarcerated there. This is hardly a glowing endorsement of humans' inherent dignity.

These examples illustrate the massive gap between Australian government actions and a culture of human rights observance. The government's professed championing of human rights is therefore disingenuous at best. At worst, it is a cynical PR display — a performance comprising lip-synching incantations of 'rights and freedoms' sufficient to give Australia a seat at an international table, but without any substance. Australia cannot truly claim a place as a global leader in human rights without a significant policy and regulatory overhaul.

 

 

Kate GallowayKate Galloway is a legal academic with an interest in social justice.

Main image courtesy Jim Mattis, licensed under the Creative Commons Attribution 2.0 Generic | Flickr

Topic tags: Kate Galloway, human rights


 

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Existing comments

"....freedom of speech, otherwise somewhat unfortunately described by our Attorney-General as 'freedom to be a bigot'." The AG has it spot on. Freedom of speech is the freedom to be verbally nasty. And the defence to the instance of an unthreatening woman of indifferent English linguistic skills and valour being picked upon on a bus by a lout, male or female, is that the bystanders, like thespians standing up for each other against the Harvey Weinsteins of their world, should point out to the lout that if an issue is important enough, it deserves the proper space in which to be discussed, which could be on John Laws but not on the bus. However, if there is a dissonance there, it can't be greater than the odd cohabitation in the same moral space of the Universal Declaration of Human Rights with the right of a woman to abort her foetus on demand. Fix that beam in the eye first. Then, we can talk about the splinters. Otherwise, 'human rights' is hypocrisy.
Roy Chen Yee | 25 October 2017


Doesn't the UN do any homework before they make these offers? Or are there deals within wheels within deals going on that are none of the business of we the ordinary humans whose rights are promulgated and defended so nobly? We poor fools who are allowed to see just enough to see there is an absurd contradiction here and who start naive and soon become utterly cynical, ready to abrogate what few powers they might have as being worthless? The UN? Isn't that connected to the WHO? The WHO who thought Mugabe was a suitable member to adorn some position of glory on their board?
jill | 27 October 2017


Human rights and civil liberties depend on how people understand what it means to be human and how best humans can survive and flourish when they form a society. At one extreme we have the view there is no such thing as "society" (Baroness Thatcher) and at the other theses words from the US Declaration of Independence "that these united Colonies are, and of Right ought to be. Free and Independent". While I don't equate Julie Bishop with The Iron Lady, I doubt if she would appreciate Australia's First Nations claiming some degree of Freedom and Independence as a Right. As Foreign Minister she knows only too well that politics is the art of living with ambiguity. Hence she would not be fazed by the paradox between being elected to the UN Human Right Council and being criticised by the Human Rights Committee. As the American Colonies realised Rights have to be fought for, the powers that be rarely grant them graciously.
Uncle Pat | 27 October 2017


Do any of the states currently on the U.N. Human rights Council have a good record on human rights? Or are they all as hypocritical as Australia. While I was thinking about writing this I read an article about the PlurinationalState of Bolivia, and I wondered if they have hit on the awy to go. Good luck Bolivia.
Gavan | 27 October 2017


I am trying to work out where Australia fits into the realm of human rights. The First Nations of this country have still not been included in the constitution, asylum seekers are struggling after years on Manus and Nauru, asylum seekers have been in detention in Melbourne for years, other refugees are still on bridging visas unable to work and we call ourselves humane. Perhaps I am simply confused. Will someone ask Julie Bishop how she can justify all those smiles she dishes out.
Mira Zeimer | 07 November 2017


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