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Published: Online Opinion:

Recent international criticism and local political shenanigans demonstrate that Australians need – and need now – constitutionally enshrined human rights, covering economic, social and cultural rights. And if the Rudd Government won’t give us protection at that level – and undoubtedly it won’t – it should at least begin taking human rights seriously.

The National Human Rights Consultation is being conducted now, during the first half of 2009, so every Australian should wake from their human rights slumber, take heed of the concluding observations raised by the United Nations’ Committee on Economic, Social and Cultural Rights in its May 22, 2009 report and provide input to the independent committee.

The Australian Human Rights Commission has already pointed out that:

Many people believe that the Australian Constitution contains human rights protections, such as the right to free speech. This is not true. The Australian Constitution offers very limited protections for human rights.

The Constitution includes the right to vote, the right to trial by jury for certain offences, some protection of freedom of religion, an implied right to freedom of political communication, and the right to be paid a fair price if the government compulsorily acquires your property.

However, the Australian Constitution does not guarantee rights and freedoms such as the right to be represented by a lawyer at trial, the right to free speech (generally, as opposed to merely on political issues), the right to equality before the law, or the right of peaceful assembly.

As well as criticising the Rudd Government’s half-hearted terms of reference for the National Human Rights Consultation, the UN report contains a scathing assessment of Australia’s treatment of Indigenous Australians, asylum seekers, migrants, people with disabilities, women, the mentally ill, the disenfranchised and the marginalised.

On May 7, 2009 the Australian Minister for Foreign Affairs, Stephen Smith, issued a press release which stated: “The Australian Government welcomes the opportunity to engage in discussion of Australia’s human rights performance. The Government looks forward to receiving the Committee’s concluding observations at the end of the Committee’s session on 22 May …”

Well, the report’s been published so it will be interesting to see the government’s response.

Did the government anticipate that it would come under fire? Was it just coincidence or was it a pre-emptive strike before the committee’s recommendations became more well known, that the federal Attorney-General announced on May 22, 2009, that Australia has signed the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment?

The irony is that even as Australia signed the Optional Protocol it was breaking it. The continued excision of northern Australian Islands from the migration zone and incarceration on Christmas Island without access to legal advice are measures designed to make it harder for asylum seekers to gain refugee status. Besides being petty, fearful and mean, these measures are cruel and deny asylum seekers the human rights they are entitled to under the UN Refugee Convention.

Australia has put the management of part of its refugee responsibilities in the hands of the Indonesian Police and Army. Australia has outsourced, for a fee, the apprehension and detention of asylum seekers, destined for Australia, to instruments under the control of the Indonesian government. The Indonesian government is not a signatory to the UN Convention on Refugees. However as agents of the Australian government presumably these Indonesian instrumentalities are covered by Australian accession to the Convention. In which case Australia is in breach of the Convention and the Optional Protocol just signed.

Indonesia claims to have apprehended 887 asylum seekers bound for Australia since September last year. Who verifies or monitors these claims? Is a bounty paid by the Australian government to the Indonesian authorities on each person detained and incarcerated? Who inspects the conditions under which asylum seekers live after being detained? Are they representatives of the Australian government or other organisations acting as agents of the Australian government? Most asylum seekers who have arrived by boat have been found to be refugees. What responsibility does Australia have under the Optional Protocol for seeking to thwart and obstruct genuine refugees from resettlement in a safe environment?

Tuesday was the commemoration of National Sorry Day and still the Rudd Government – like its predecessors – continues to ignore international law. This time it’s a housing solution on Alice Springs town camps. Doesn’t this fly in the face of the UN Committee’s observations that:

The Committee remains concerned that some of the Northern Territory Intervention measures adopted by the State party in response to the 2007 report, are inconsistent with the Covenant rights, in particular with the principle of non-discrimination, and have a negative impact on the realisation of the rights of indigenous peoples. The Committee notes with regret that the Northern Territory Intervention measures were adopted without sufficient and adequate consultation with the indigenous peoples concerned. (art.2.2)

The Committee recommends that the State party: a) address the human rights violations identified in the 2007 Little Children are sacred report bearing in mind the recommendations of the 2008 report of the Northern Territory Intervention Response Review board in this regard; b) conduct formal consultations with the indigenous peoples concerned regarding the operation and impact of the Northern Territory Intervention; c) establish a national indigenous representative body with adequate resources; and d) ratify ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989).

The UN Committee also expressed concern about “the negative impact of climate change on the right to an adequate standard of living, including on the right to food and the right to water, affecting in particular indigenous peoples, in spite of the State Party’s recognition of the challenges imposed by climate change”. If Australia really is a good international citizen is the Rudd Government going to step in to prevent State Governments from further privatising the country’s water supplies in order to protect such rights?

Until Kevin and Penny Wong grasp that access to an adequate potable water supply is a basic human right they will not be able to bring about policy which addresses the needs of Australia. Within the framework of addressing the supply of potable water, there falls the requirements of industry and agriculture. Private enterprise will not distribute water equitably. It needs to be recognised that, sooner or later, federal government will need to (or will be forced to) take on the role of conservator and distributor of water without fear or favour. Corrupt and parochial state and local governments can have no part in such undertakings and neither can cashed up private companies which have shown an inclination to feed government corruption for their own ends.

And while the Rudd Government is busy praising the arrest of people for alleged people smuggling, and making sure it gets plenty of coverage, is it also busy reflecting on the UN Committee’s recommendations to it that “… it implement without delay its new ‘seven values’ in policy, and carry out the Australian Human Rights Commission’s recommendations adopted in its 2008 Immigration Detention Report, including the repeal of the mandatory immigration detention system and the closure of the Christmas Island detention Centre …”

If the Rudd Government is really serious about its citizens and about “building on” its human rights record then at the very least it should first, immediately respond to and implement all recommendations clearly laid out by the Committee and second, reconsider its narrow terms of reference for the National Human Rights Consultation.