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OZ File: Human Rights – Oz v. the UN

Simon Orme writes from Sydney

The Australian government last week raised the stakes in a festering dispute between it and the UN over Australia's failure to address UN concerns over mandatory sentencing and the position of Aborigines in Australia generally.

Last week a furious Howard government attacked a UN human rights watchdog, after it condemned Australia's mandatory sentencing laws. Cabinet decided to undertake a "whole of government" review of Australia's obligations to report to the UN on its compliance with international treaties and conventions.

Australia's foreign minister, Alexander Downer, issued an extraordinary press release attacking the efficiency and impartiality of UN human rights committees, saying the Government had been "appalled at the blatantly political and partisan approach" of the UN Committee for the Elimination of Racial Discrimination (CERD).

This follows a CERD report recording its "grave concern" over the discriminatory approach to law enforcement in Western Australia and the Northern Territory, the two parts of Australia that have mandatory sentencing.

Condemnation of Canberra's aggressive move was fast and widespread. Amnesty International said Australia's move set a "worrying precedent".

A Canberra based human rights academic, Robert McCorquodale, observed that, if you sent out Downer's press release without identifying its county of origin, "you would assume it came from China or Iraq, countries Australia normally condemned".

The ALP Foreign Affairs spokesman, Laurie Brereton, described the move as "deeply embarrassing" and a "dummy-spit".

Canberra's petulance is the latest move in a growing row over Australia's atavistic stance on race relations (the stance outlined in this column last month).

The row has its origins in the Commonwealth's March 1999 Wik legislation limiting the scope of Aboriginal rights to native title. CERD concern, and indications it wished to review the Wik law against Australia's UN Treaty obligations, were pretty much ignored by Canberra.

Ironically, the escalation is the result of the UN Secretary General's visit to Australia (and NZ) earlier this year to show the UN's appreciation for the intervention in East Timor. The Secretary General agreed to a request for the UN to review mandatory sentencing.

The Australian Government went to great lengths to suppress the resulting report. While critical, the report was anodyne in that it did not detail Australia's breaches.

However, it appears UN staff simply leaked a copy of their original report to Australian media in New York.

The suppressed report was a great read.

It pointed out that mandatory sentencing was contrary to the principle of judicial independence, because it amounted to the legislature usurping the judiciary's role in sentencing.

Mandatory sentencing also contravened UN conventions on the rights of the child, because it imprisoned juveniles for trivial offences.

The report also noted that the victims of mandatory sentencing were overwhelmingly aboriginal and therefore likely to breach the UN convention on racial equality.

The suppression of the UN report emerged around the same time the Government refused even to debate a Senate Bill that would have overridden mandatory sentencing laws.

The judiciary, by its standards, has also been outspoken in its criticism of mandatory sentencing. A High Court judge even went so far as to outline in a newspaper article the grounds on which a case might be taken to the High Court to have the laws struck down.

The Government's official line is that it is powerless to move on mandatory sentencing without breaching State sovereignty and hence the constitution. Here, it is backed by an opinion poll finding that, while most Australian's were opposed to mandatory sentencing (but a very large minority weren't), they were more ambiguous about Canberra overriding State legislation.

The official line overlooks the fact Canberra has in the past overridden legislation passed in the Northern Territory (which formally has less autonomy than states) providing for voluntary euthanasia.

The independence of States argument simply didn’t cut any ice with the CERD. One of its members, Ms Gay McDougall, stated the Committee was familiar with the application of international laws to countries with federal political systems and indicated federalism was in not an excuse for non-compliance.

McDougall acknowledged Canberra puts a lot of money into funding for Aborigines and Torres Strait Islanders, but noted the continuing vast inequalities between white and black Australia "makes you wonder about the effectiveness".

(Incidentally, the Commonwealth budget for these programs is $A2.2billion per annum. This is approaching three times NZ's entire 10 year Treaty of Waitangi settlement budget targeted at a similar sized population.)

Canberra risks turning itself into an international pariah on race-relations issues because of its refusal to de-colonize.

Australia's stance is a gift to the UN. It provides a rich, western-style democracy to beat up. The UN can then demonstrate its impartiality to those, like China, who might criticize it for being Western dominated in its approach on human rights.

It is hard to see any rationality in Canberra's aggressive stance. In any dispute with the UN over human rights, the UN is not going to look like the bad guy. All the row does is draw attention to Australia's race-relations deficit.

Canberra's approach seems to be based on the principle that you're more likely to get your way if you take a hard line from the outset and stick to it obdurately.

This approach worked in Kyoto. Australia is the only western country that can significantly increase its greenhouse emissions.

Canberra is being rational, albeit in a very depressing way. Canberra's position is really all about the Pauline Hanson factor in domestic politics. It doesn’t want to be seen to be "soft on blacks".

This brings us back to the dominant feature in Australia's current political landscape. Leaving aside Adelaide, all the marginal seats are now in the bush. This is where the next election will be won or lost.

The row with the UN is simply another indicator of how far this government is prepared to go in its efforts to pander to the bush.

The row might result in NZ's race relations coming under scrutiny because of the tendency in Europe and North America to confuse the two countries. While NZ looks way better than Australia, things could certainly be a lot better, so it shouldn't be too smug.

Last month, this column compared a Qantas ad featuring an aboriginal girl with the Air NZ one, and suggested the Qantas one was a media construction. The Sydney Morning Herald was similarly suspicious and managed to track down the girl. Seven years after the photo, she is now 19 and living in an impoverished Aboriginal settlement in the WA outback. A photo of her now with her child and a mangy dog living in a common compound was put alongside the Qantas image. The contrast was unsettling.

Copyright: Simon Orme 2000

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