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Otto, Dianne --- "From 'reluctance' to 'exceptionalism': The Australian approach to domestic implementation of human rights" [2001] AltLawJl 87; (2001) 26(5) Alternative Law Journal 219

From ‘reluctance’ to ‘exceptionalism’: The Australian approach to domestic implementation of human rights

Dianne Otto[*]

Australia takes exception to its human rights obligations.

The Committee [on the Elimination of Racial Discrimination] has apparently failed to grapple with our unique and complex history.

The Attorney-General, Daryl Williams[1]

The present Australian government has retreated, from what Professor Hilary Charlesworth has described as the ‘reluctance’[2]of its predecessors to domestically implement Australia’s international human rights obligations, to the even less defensible position of Australian ‘exceptionalism’ with respect to these obligations. This new low point in Australia’s commitment to the international human rights system was confirmed by the Joint Ministerial Statement of August 2000, which announced that the government’s future cooperation with the human rights treaty committees would be ‘strategic’, in the sense of maximising positive outcomes for Australia, and contingent on unspecified reform of the system.[3] The announcement conveniently side steps the fact that Australia is under an international legal obligation not only to domestically implement the rights enumerated in the treaties that are monitored by the committees, but also to periodically report to the committees on its progress, in good faith. There is no provision in the treaties, nor indeed in treaty law more generally, that would allow States to limit their interactions with the committees as they see fit, or to set preconditions for engagement with them.

By way of justifying its new approach, the government insists, like its predecessors, that human rights are already enjoyed in Australia and are protected by the Australian political process.[4] But, unlike earlier governments, it has reacted defensively and increasingly belligerently to any opinions to the contrary, dismissing them as ill-informed, misguided, wrong or even deliberately provocative.[5] Also unlike earlier governments, the current government has suggested that the committees do not take adequate account of its ‘democratic’ credentials.[6] These actions have fostered a domestic political climate of growing hostility to the international human rights system, which has left human rights advocates with reduced scope for rights promotion in Australian political life. The situation demands ever more creative responses from the human rights community, which I hope this article will help to inspire.

What do I mean by exceptionalist?

To claim ‘exceptionalism’ is not merely to assert a difference. It is a claim to a singular superiority or uniqueness that exempts the exceptional subject from the rules that apply to everyone else. As historian Daniel Rodgers has argued, ‘exceptionalist claims pin one’s own nation’s distinctiveness to every other people’s sameness — to general laws and conditions governing everything but the special case at hand’.[7] The term has long been associated with the United States of America (US) where exceptionalism is deeply embedded in domestic narratives of American history. Examples of American exceptionalism are legion, commencing perhaps with the failure of the US to join the League of Nations in 1919 and abundantly evident in the recent examples of the US refusal to countenance submitting itself to the jurisdiction of an International Criminal Court, its continuing failure to pay its share of UN dues, its withdrawal from the Kyoto Protocol on Climate Change, its pulling out of negotiations regarding the Protocol to the Biological Weapons Convention, and its ongoing refusal to ratify most international human rights treaties.

There are strong echoes of American exceptionalism in the recent approach of the Australian government to its international human rights obligations. In response to a series of criticisms by human rights treaty committees — with respect to, inter alia, inadequate protection of Indigenous rights, the practices of mandatory sentencing in the Northern Territory and Western Australia, and the treatment of asylum seekers — the government has maintained that its human rights record is unparalleled. It has accounted for the views of the treaty committees by accusing them of ‘pursuing political agendas rather than fulfilling their “expert” objectives’,[8] of making ‘unwarranted requests’ when asked to delay pre-emptive removal of unsuccessful asylum seekers,[9] and of making ‘flawed recommendations’ in relation to mandatory sentencing and detainment of refugee applicants.[10] In particular, it has accused the Committee on the Elimination of Racial Discrimination (CERD) of taking a ‘blatantly political and partisan approach’ and engaging in a ‘polemic attack on the government’s indigenous policies’.[11] The Prime Minister has complained that Australia is being unfairly ‘told what to do by outsiders’.[12] In the same vein, the government has refused to sign onto the Optional Protocol to the Convention on the Elimination of Discrimination Against Women (CEDAW) because Australia already has a ‘world class regime of legal and institutional mechanisms to protect women against discrimination’.[13] In short, the government claims an exemplary human rights record that exempts it from having to respond seriously to the concerns of an international system, which it considers biased and politically driven.

‘Us’ and ‘them’

If this were the extent of the government’s criticisms of the human rights treaty system, it would be more accurate to describe its position as isolationist, rather than exceptionalist. However, it is the second plank in Australia’s special case argument that transports its response into the more extreme register of exceptionalism. This plank relies on the argument that the international system does not take enough account of its ‘democratic’ credentials.[14] This view brings Australia squarely into the company of those who argue against the universality of the present system, either because they consider that the system should treat democratic states differently to undemocratic states[15] or because cultural, historical and religious diversities preclude the possibility of universal norms.[16] Proponents of both of these schools of thought are, in my view, deeply antagonistic to the project of improving the effectiveness of the UN human rights system, and the views recently expressed by the government forge alliances, to some extent, with both ideological camps.

The first school assumes the superiority of democratic states, which revives the civilising mission of the colonial era and imagines the primary purpose of the human rights system as a curb on the activities of undemocratic (or uncivilised, or undeveloped) states. Australia’s incredulity in the face of international criticism of its own human rights record can perhaps be explained in this light. A contemporary advocate of such democratic exceptionalism is Canadian Professor Anne Bayefsky, who has recently completed a major analysis of the problems facing the human rights treaty system, which was prepared in collaboration with the UN High Commissioner for Human Rights.[17] When the report was released, the Minister for Foreign Affairs, Alexander Downer, was quick to claim that it validated Australia’s criticisms of the system, drawing particular attention to Bayefsky’s unfavourable assessment of the CERD as adopting ‘differential treatment’ in relation to some states and having ‘the least developed concluding observations’.[18] Bayefsky, when contacted by the Sydney Morning Herald for her response to the Minister’s claim, strongly rejected his view that her report supported the government’s questioning of the legitimacy of criticisms made of Australia’s human rights performance. In her view, ‘[i]f democratic countries like Australia don’t take a leadership role in responding to the very findings of violations against them, then how can they expect other countries with much worse human rights records to do better?’[19]

Bayefsky’s appeal to Australia as a ‘democratic’ state is reflective of her earlier critiques of the system[20] which characteristically select extreme examples of recalcitrant state behaviour in the human rights treaty system, setting up a contrast, as Philip Alston describes it, ‘between “us” (the liberal democratic states) and “them” (the “extreme delinquents” who have “no democratic aspirations”)’.[21] This approach is extremely divisive and antithetical to the universalism of the present system. Despite her protestations, the democratic exceptionalist aspect of Bayefsky’s views was substantially reflected in the most recent Joint Ministerial Statement of 5 April 2001,[22] which announced the measures the government plans to adopt to make the treaty system more effective. The Statement describes Australia’s overall goal as ‘achieving a system that can better advance the cause of international human rights by targeting offenders [‘them’] and engaging more constructively in dialogues with countries which, like Australia [‘us’], take their obligations seriously’ (brackets and emphasis added).

Concomitant to the complaint that the treaty committees pay too little attention to the views of democratic states, the Australian government has also protested that they take too much account of the views of nongovernmental organisations (NGOs), failing to recognise their ‘subordinate role’.[23] This complaint brings the government into the company of the fundamentalists and relativists of the second, anti-universalist, school of thought. The antagonism of fundamentalist states to the human rights system is surpassed only by their dislike of the involvement of NGOs, in the absence of whom, it must be remembered, the entire system would lack the information that it needs to operate credibly. This antagonism to NGOs is also consistent with the view of many right-wing North American think-tanks, which are increasingly targeting the human rights treaty committees, accusing them of reliance on ‘special interest group’ NGOs (like women’s and children’s rights groups). One such think-tank, the Heritage Foundation, recently referred to Australia’s decision to no longer cooperate with the human rights treaty committees as a model that others should follow.[24] In this new company, Australia actually distinguishes itself from the democratic tradition. It also distances itself from the Geneva group of like-minded states which has been charting a careful course towards the promotion of treaty body reform for several years now, taking Philip Alston’s 1997 report as their starting point.[25] In taking diplomatic initiatives of its own, the government appears to be making a break with its usual UN allies, embarking instead on a precipitous course that is highly vulnerable to cooption by conservative and fundamentalist forces that have little, if any, commitment to a universal and dynamic system of human rights.

Notably, none of the five ‘key elements’ of the government’s reform plan focus on domestic issues. So there is no mention of the failure of the government to directly implement most of its international human rights obligations; its poor record on promoting human rights education in Australia; the lack of compliance of its reports with the committees’ reporting guidelines; and its extreme reluctance, perhaps more aptly described as refusal, to ensure that State and Territory governments act consistently with Australia’s international human rights obligations. Instead, the government’s reform plans for the human rights treaty system firmly redirect ‘the gaze’ outwards, away from ‘us’ and back on ‘them’. Its plans include seeking election to the Commission on Human Rights (clearly a role for someone like ‘us’), and encouraging countries in our region to sign and ratify the six core human rights instruments and providing technical assistance to help them comply with their reporting obligations (a role for ‘us’ in relation to ‘them’).

In sum, what appears at first sight to be a petulant antipodean response to public criticism, is revealed to be the same old story of democratic (or western) exceptionalism; this time in the guise of concern for treaty body effectiveness, fuelled by the rage of having had the gaze meant for ‘them’ turned back on ‘us’. The government’s goal is to return the human rights gaze to those whom, in its view, it was intended for, to target real human rights abusers, elsewhere, in undemocratic, non-western states. In response, human rights advocates need to find new ways to defend the universal application of the system and to promote the sheer importance of taking seriously the views expressed by the human rights treaty bodies about the shortcomings in Australia’s record of human rights implementation.

Australia’s own implementation record

The Australian system of human rights protection that the government claims to be working so well is, in fact, hard to pin down. Without exception, the treaty committees have not been convinced by the argument that the political system adequately protects human rights, and have urged successive governments to directly incorporate human rights into Australian law, but to no avail. In 1997, the CEDAW recommended that the government ‘design a long-term strategy aimed at the full implementation of the Convention’,[26] yet since then, the government has had no qualms about attempting to introduce additional limits to the scope of the Sex Discrimination Act 1986 (Cth), that would have allowed State and Territory governments to discriminate on the basis of marital status in regulating access to reproductive technologies.[27] Also in 1997, the Committee on the Rights of the Child recommended that the government ‘create a federal body responsible for drawing up programs and policies for the implementation of the Convention on the Rights of the Child, and monitoring their implementation’.[28]

In 2000, each of the other four treaty committees indicated that the government had failed to reassure them of the adequacy of its largely ‘indirect’[29] measures of implementation. In March, the CERD expressed its concern over the absence of any entrenched guarantee against racial discrimination. It reiterated an earlier recommendation that the government ensure the consistent application of the Convention at all levels of government, in accordance with article 27 of the Vienna Convention on the Law of Treaties, which prohibits the invocation of internal law as a justification for failure to perform a treaty obligation.[30] In July, the Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights, observed that the absence of constitutional protection of Covenant rights leaves ‘a lacunae in the protection of rights in the Australian legal system’. It urged the government to ‘take measures to give effect to all Covenant rights and freedoms and to ensure that all persons whose Covenant rights and freedoms have been violated have an effective remedy’.[31] In September, the Committee on Economic, Social and Cultural Rights strongly recommended that the government ‘incorporate the Covenant in its legislation, in order to ensure the applicability of the provisions of the Covenant in domestic courts’.[32] And finally, in November, the Committee Against Torture recommended that the government ‘ensure that all states and territories are at all times in compliance with its obligations under the Convention’ and ‘consider the desirability of providing a mechanism for independent review of ministerial decisions in respect of non-refoulement of asylum seekers’.[33]

Clearly, it is no longer enough for Australian governments to simply assert, as they have, that they do not ratify human rights conventions unless domestic legislation, politics and practice already comply with their obligations[34] and, further, that the Australian system of responsible government and the traditions of the common law ensure adequate protection. The international pressure for comprehensible evidence that this is the case has plainly been mounting, yet the government has been unable to provide it. Its periodic reports to the committees are frustratingly general, making little effort to directly link Australia’s specific international obligations to implementation by way of concrete domestic measures. In light of such dismal implementation efforts, it is hardly surprising that such a searing gaze has been directed at Australia. Further bluff and bluster about our ‘unique and complex history’ can only hope to temporarily divert this gaze, now that the myth of implementation has been roundly exposed.

Where do we go from here?

The question is how to advance from the current low point of widespread suspicion and endemic misinformation about human rights in Australia. The task is to translate the gaze of the treaty committees into meaningful domestic debate and heightened levels of human rights literacy in Australia. While human rights advocates are in general agreement about the need to build a grass roots human rights culture from the ground up, it is not always clear how this could be done. Towards this end, Peter Bailey has made the very useful suggestion that we identify the scattered human rights ‘standards’, as he calls them, that are already incorporated into Australian law such as practices relating to a fair trial, and elements of the right to an adequate standard of living, and make connections between them and international human rights norms.[35] Bailey argues that making such connections will mean that the principles which link the existing standards will come into focus, making it possible to develop the law on the basis of the underlying human rights principles, before the courts and in the course of parliamentary and public discussion. While I am not as optimistic as Bailey when he claims that ‘Australia is not very far from being able … to move to immediate enactment of the most central incidents of an enforceable legal right to an adequate standard of living’,[36] the kind of creative change to the Australian legal culture that he suggests is crucial.

However, I think we must go at least one step further, and try to make sense of Australia’s meagre efforts at indirect implementation at the interface between Australia’s legal culture and popular conceptions of human rights. It is at this interface, for example in supported accommodation and disability services, that the effects of the occasional reference to human rights in government legislation and policies can be investigated. It is here that one might expect to find evidence of an embryonic rights awareness and more rights- oriented practices resulting from governmental rights promotion, if indeed any such evidence exists. It is also at this interface that Bailey’s hypothesis, that many human rights are not very far from being fully implemented in Australia, can be tested in a practical sense.

We need to be more creative than ever before with the flimsy rights protections that exist in Australian law, and find ways to nurture a fledgling human rights culture in both the legal and popular realms. As uncomfortable as it may be, we must refuse the push to turn the gaze away from ourselves at least until we truly have an exemplary system of human rights in Australia and, even then, the gaze of exceptionalism, of ‘them’ and ‘us’, must be firmly rejected as antithetical to a universal system of human rights.

[*] Dianne Otto teaches law at the University of Melbourne.I would like to thank my research assistant, Annie Pettitt, for all her assistance through many discussions and helpful research, which was funded by the Australian Research©2001 Dianne Otto

[1] News Release, the Attorney-General, Daryl Williams, CERD Report Unbalanced, 26 March 2000.

[2] Charlesworth, Hilary, ‘The Australian Reluctance about Rights’, (1993) 31 Osgoode Hall Law Journal 195. In a similar vein, Charlesworth has recently referred to the Australian record on human rights as ‘one hundred years of solitude’ in the Kathleen Fitzpatrick Lecture, The University of Melbourne, 17 May 2001 (copy on file with author).

[3] Joint News Release, the Minister for Foreign Affairs, Alexander Downer, the Attorney-General, Daryl Williams, and the Minister for Immigration and Multicultural Affairs, Philip Ruddock, Improving the Effectiveness of United Nations Committees, FA97, 29 August 2000.

[4] For example, the Attorney-General, Daryl Williams, claimed that individual rights are protected by the Australian traditions of robust parliamentary debate in his Law Week address, Sunday, 13 May 2001, referred to by Charlesworth, ‘One Hundred Years …’, above, ref 2, p.9. For the approach of previous governments see Charlesworth, ‘The Australian Reluctance …’, above, ref 2.

[5] See (2000) 125 UNity News 1-6.

[6] Joint News Release, above, ref 3.

[7] Rogers, Daniel T., ‘Exceptionalism’ in Anthony Molho and Gordon S. Wood (eds), Imagined Histories: American Historians Interpret the Past, Princeton University Press, 1998, pp.21, 23.

[8] Media Statement, the Minister for Foreign Affairs, Alexander Downer, 30 March 2000.

[9] Joint News Release, above, ref 3.

[10] The Minister for Immigration and Multicultural Affairs, Philip Ruddock, reported in ‘Ministers Outline Reform Plans for UN Treaty Committees’, (2001) 249 UNity News 2.

[11] The Minister for Immigration and Multicultural Affairs, above, ref 10.

[12] The Prime Minister, John Howard, Canberra Times, 19 February 2000, p.1, cited in Charlesworth, ‘One Hundred Years …’, above, ref 2, p.9.

[13] The Minister for Foreign Affairs, Alexander Downer, ‘Minister’s Reply’ [to letter from Professor Maddocks] (2000) 147 UNity News 2.

[14] Joint News Release, above, ref 3.

[15] Bayefsky, Anne F., ‘Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies’, (1996) 9 Ratio Juris 42.

[16] Kausikan, Bilahari, ‘Asia’s Different Standard’ (1993) 92 Foreign Policy 24.

[17] Bayefsky, Anne F., The UN Human Rights Treaty System: Universality at the Crossroads (2001) see <> .

[18] ‘Canadian Report Criticises UN Committees: Downer’, (2001) 255 Unity News 3.

[19] Riley, Mark, ‘‘‘No excuse” for Howard’s UN attack’, Sydney Morning Herald, 23 June 2001.

[20] For example, Bayefsky, Anne F., ‘Making the Human Rights Treaties Work’, in Louis Henkin and Lawrence Hargrove (eds), Human Rights: An Agenda for the Next Century, American Society of International Law, 1994, p.229, 264.

[21] Alston, Philip, ‘Beyond ‘them’ and ‘us’: Putting treaty body reform into perspective’, in Philip Alston and James Crawford (eds), The Future of UN Human Rights Treaty Monitoring, Cambridge University Press, 2000, p.501, 503.

[22] The Minister for Foreign Affairs, Alexander Downer, the Attorney- General, Daryl Williams, and the Minister for Immigration and Multicultural Affairs, Philip Ruddock, Australian Initiative to Improve the Effectiveness of the UN Treaty Committees, 5 April 2001.

[23] Joint News Release, above ref 3.

[24] Fagan, Patrick F., ‘How UN Conventions on Women’s and Children’s Rights Undermine Family, Religion, and Sovereignty’, The Heritage Foundation Backgrounder, 5 February 2001, 5. See <http://www.> .

[25] Alston, Philip, Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments, E/CN.4/1997/74, 27 March 1997.

[26] Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Australia. 22/07/97, A/52/38/Rev.1, Part II, para 398.

[27] Sex Discrimination Amendment (No.1) Bill 2000 (Cth). The Senate did not pass this Bill.

[28] Concluding Observations of the Committee on the Rights of the Child: Australia. 10/10/97. CRC/C/15/Add.79, 10 October 1997, para 24.

[29] See further, Otto, Dianne and Wiseman, David, ‘In Search Of Effective Remedies: Applying the International Covenant on Economic and Social Rights in Australia’[2001] AUJlHRights 2; , (2001) 7 Australian Journal of Human Rights 5.

[30] Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia. 19/04/2000. CERD/C/304/Add.101, 19 April 2000, paras 6 and 7.

[31] Concluding Observations of the Human Rights Committee: Australia. 28/07/2000. A/55/40, paras 498-528, 28 July 2000.

[32] Concluding Observations of the Committee on Economic, Social and Cultural Rights: Australia. 01/09/2000. E/C.12/1/Add.50, 1 September 2000, para. 24.

[33] Conclusions and Recommendations of the Committee Against Torture: Australia. 21/11/2000. CAT/C/XXV/Concl.3, 21 November 2000, paras 7(a) and 7(b).

[34] As the government said in its 1st Periodic Report to CROC: ‘Australia does not propose to implement CROC by enacting the Convention as domestic law. The general approach taken by Australia to human rights and other Conventions is to ensure that domestic legislation, politics and practice comply with the Convention prior to ratification’, CRC/C/8/Add.31 para 6, 1 February 1996.

[35] Bailey, Peter, ‘Implementing Human Rights — the way forward’, (1999) 5/2 Australian Journal of Human Rights 167 at 172–4.

[36] Bailey, Peter, ‘The Right to an Adequate Standard of Living: New Issues for Australian Law’, (1997) 4/1 Australian Journal of Human Rights 25 at 50.

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