The council’s report, published on November 9, is an instructive document for Quadrant readers because it offers direct and detailed confirmation of the case made by our international editor, John O’Sullivan, in his 2017 John Howard Lecture, published in our November edition. John argued that the liberal democracy long established in Western countries was shedding its commitment to democracy and mutating into a form of elitist liberalism. “Liberalism has come to mean the proliferation of liberal institutions,” he wrote, “the courts, supra-national bodies, charters of rights, independent agencies, UN treaty monitoring bodies, that increasingly restrain and correct parliaments, congresses and elected officials.”
Those who follow British politics will be familiar with the deluge of directives from the bureaucracy of the European Union that sought to tell British politicians and law officers how to govern their country, and which eventually produced Brexit. The UN Human Rights Council’s report on Australia displays the same kind of officious disdain for this country’s right to manage its own affairs.
The UN report says that before the Commonwealth government puts any bill before parliament, it should undertake “a meaningful and well-informed review” of whether it is compatible with the UN’s International Covenant on Civil and Political Rights. Because of Australia’s alleged failure to give full legal effect to the Covenant, we must take action on an extensive range of issues ranging from counter-terrorism, police behaviour and border protection to marriage reform, domestic violence and Aboriginal policy. Here is an edited summary of the report’s recommendations to show the degree of intrusion into Australian affairs the UN bureaucracy presumes. Australia must:
• end attempts by senior politicians to discredit the work of the Australian Human Rights Commission, and cuts to its budget;
• review current counter-terrorism laws and practices to ensure their full compliance with the Covenant, especially control orders, stop, search and seizure powers, questioning and detention warrants, preventative detention of terrorists, post-sentence detention of terrorists, “declared area” offences, and revocation of citizenship;
• introduce comprehensive anti-discrimination legislation;
• strengthen efforts against racial discrimination, hate speech and violence on racial, ethnic and religious grounds, including more funding to promote tolerance and diversity; provide more training to law enforcement personnel on promotion of diversity and the inadmissibility of racial profiling;
• strengthen efforts against domestic violence, especially against indigenous women and women with disabilities;
• abolish the practice of involuntary non-therapeutic sterilisation of women and girls with intellectual disability;
• expedite access to Stage Two hormone treatment for gender dysphoria, including the need for court authorisation in cases featuring uncontested agreement of parents, guardians and the medical team;
• revise laws, including the Marriage Act, to ensure, irrespective of the results of the Marriage Law Postal Survey, the equal protection of rights of LGBTI persons. “The Committee is of the view that resort to public opinion polls to facilitate upholding rights under the Covenant in general, and equality and non-discrimination of minority groups in particular, is not an acceptable decision-making method and that such an approach risks further marginalizing and stigmatizing members of minority groups”;
• investigate allegations of excessive use of force by police, including deaths in custody;
• revise laws governing extradition, transfer or removal of non-citizens, including asylum seekers and refugees, because they do not afford full protection against refoulement (deporting a person to his home country when he might be subject to persecution there);
• repeal Section 197C of the Migration Act 1958 and introduce a legal obligation to ensure that the removal of an individual must always be consistent with the Covenant’s non-refoulement obligations;
• review the policy and practices towards persons intercepted at sea;
• repeal the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014;
• end offshore transfer arrangements and cease any further transfers of refugees or asylum-seekers to Nauru, Papua New Guinea or any other “regional processing country”;
• ensure the transfer of refugees and asylum-seekers to Australia or their relocation to other appropriate safe countries;
• consider closing down the Christmas Island detention centre;
• bring legislation and practice related to immigration detention into compliance with article 9 of the Covenant. The rigid mandatory detention scheme under the Migration Act 1958 does not meet the legal standards of the Covenant. The committee is particularly concerned about the use of detention powers as a general deterrent against unlawful entry rather than in response to individual risk;
• take robust measures to address the over-representation of indigenous Australians in prisons, especially by revising mandatory sentencing laws and imprisonment for fine default, and enhancing the use of non-custodial measures and diverting programs;
• raise the minimum age of criminal responsibility in accordance with international standards;
• provide adequate funding to the National Congress of Australia’s First Peoples;
• revise the Constitution in order to recognise the special status and fully protect the equal rights of Aboriginal and Torres Strait Islander peoples;
• take appropriate legislative and administrative measures to protect and promote the rights of Aboriginal and Torres Strait Islander people, and ensure genuine consultations with land holders and effective protection and management of indigenous heritage sites in implementing the White Paper on Developing Northern Australia;
• remove the barriers to the full protection of land rights and consider amending the Native Title Act 1993, taking into account the Covenant and relevant international standards;
• establish a national reparations mechanism, including compensation schemes, for victims of the “stolen generations”.
In the early decades after the Second World War, Australia supported UN directives because they were universal rights for principles like liberty, free speech and fair legal processes, which applied to all people, wherever they lived and whatever their circumstances. They recognised the inherent dignity and the value of the life of every person.
But what stands out in the UN list just presented to Australia is the absence of universality. Almost all these issues derive from identity politics. They are not simply matters related to the legitimate rights of minorities, which all democratic societies have a duty to protect from unreasonable or ill-informed prejudices of the majority. They are designed to change current Australian policies towards several already favoured interest groups. If implemented, they would make government policies in a number of areas much more difficult than now. They would make it harder to protect citizens from terrorists or would-be terrorists, more difficult to deter illegal immigrants, and needlessly restrict freedom of speech. In other cases, they would intrude on perfectly legitimate policies that should remain the prerogative of Australian parliaments and courts, such as the age of responsibility for children committing crimes or securing sex-change therapies. In yet other areas, especially Aboriginal policy, they would burden taxpayers with even more expenditure than is now wasted on the demonstrably failed policies of remote communities and land rights.
What is of even greater concern is that the demands of this international body support those Australians whose primary allegiance is not to the Australian people but to their peer group in international institutions and affairs, especially in the legal profession. The most transparent expression of this was the High Court judgment of Gerard Brennan (supported by Chief Justice Anthony Mason) in the 1992 Mabo case, which argued Australia’s common law, the product of a thousand years of British heritage, should conform to international conventions invented only in recent decades. Brennan said:
The opening up of international remedies to individuals pursuant to Australia’s accession to the Option Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.
As things stand now, Australia’s next election will probably see Bill Shorten and the Labor Party win government. Shorten is running on a campaign of support for identity politics and if he wins is highly likely to adopt the UN agenda. Last year in Britain, electors had the choice of opting out of a similar package imposed by the EU. For Australians under a Shorten government, there would be no such easy way out.