The Federal Government’s reaction to a United Nations committee’s rebuke over Australia’s mandatory sentencing laws resembled the classis response from undemocratic countries have appalling human rights records. Typically, they say that no-one has the right to interfere with internal matters, as the busily torture, jail or murder opponents or members of minorities. The Federal Government’s over-reaction has enable people to highlight the similarity of our response with that of some very unsavoury regimes. This is truly unfortunate because Australia’s record on human rights, liberty and democracy is by and large a very good one. But it is not perfect.
The UN monitors human rights of member countries under six treaties which Australia has signed: the Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of Racial Discrimination, the Convention the Elimination of Discrimination against Women and the Convention on Economic, Social and Cultural Rights (different from the covenant). The International Labour Organisation also looks a workplace rights.
The difficulty for Australia is that these committees are not satisfied with just looking at the written law. Rather they look at results on the ground. There is no legal racial discrimination in Australia; nor is there any legal discrimination against women. Indeed, such acts are illegal. But it remains inescapable that indigenous Australians suffer worse health, housing, educational and imprisonment outcomes than non-indigenous Australians and many indigenous Australians feel alienated from society. The questions then arises: is this a form of racial discrimination and has Australia done enough to eliminate it. Answer: Australia has certainly thrown a lot of money at attempting to improve the lot of indigenous people, but it has not reflected in the statistics. The Australian Government has failed to make significant symbolic gestures towards indigenous people which would have gone a long way to ameliorating the sense of alienation. It has also failed to take action against Western Australian and Northern Territory mandatory sentencing laws which in their practical application result in a much higher proportion of Aboriginal jailings than their proportion of the population would warrant. In short, there was a case for criticism by the UN committee. That criticism may have been excessive in the circumstances. The committee might have been too willing to listen to Australians with a domestic political agenda to push, none the less, the Government should not have reacted the way it did, which was to threaten co-operation with human rights committees.
In the long run, the Australian Government must do more to ensure that UN committees has less to seize upon and it must do more to ensure the committees are more responsive to government submissions. Rather than withdraw, Australia should engage itself more with the UN.
Australia is wealthy and has a history and infrastructure conducive to being alert to human rights. It should heed the blemishes the UN points out, even if they are fairly minor on a world scale.
That Australia is that it is a federation is not a difficulty. Since the Tasmanian Dams case in the 1980s, the High Court has widened the Commonwealth’s law-making powers to include under the external affairs power virtually anything which has been the subject of the genuine treaty. The refusal by the Coalition to do anything about Western Australia’s and the Northern Territory’s mandatory sentencing law – or even to allow a conscience vote on it – leaves it open to a charge of permissive discrimination. It would not be a question of the Commonwealth stretching its power to criminal law matters which are usually state matters, but rather it is a case of the Western Australian Parliament and Government pushing their criminal law into an area which is of legitimate international concern.