The politics of human rights in Australia Law under the spotlight Cartoon reproduced with permission David Pope/ The Canberra Times Edited by Cristy Clark, 2015 School of Law and Justice, Southern Cross University
The politics of human rights in Australia CONTENTS Introduction Cristy Clark 1. No Place Like Home : Examining the Going Home Staying Home reforms Owen McMahon 2. Marriage equality in Australia: A fundamental right? Neil Hendriks 3. Marriage equality: A possible reality or unreachable dream? Sigrid McKenna 4. Counter terrorism, control orders and Article 9 of the ICCPR Stephanie Rowe 5. Australia s response to foreign fighters: Security without a bill of rights Scharneese Philipp 6. Border protection and human rights Felicity Abotomey 7. Burden-sharing or burden-shifting? Alannah Newton 8. Constitution recognition and the rights of Indigenous Australians Michael Donachie 9. Stronger futures? Cera Godinez 10. The right to a healthy environment versus mining: An examination of federal environmental law and its failure to protect people s health Helena Kern 1 8 23 37 48 59 73 87 100 115 129
The politics of human rights in Australia The politics of human rights in Australia: Law under the spotlight Cristy Clark In this year s Human Rights unit we put a range of Australian legislation and policy under the spotlight and asked whether it complies with international human rights law. In particular, we examined how law and policy affects the issues of gender, marriage equality, national security and border protection, Indigenous Australians, children, and the environment in Australia. For their major piece of assessment, students undertook a research project into one of these policy areas and wrote a paper that specifically considered the human rights implications of one Act or policy document. This book is a collection of ten of the best of these papers and each chapter touches on one of the major themes considered in our unit, with the exception of child rights. Gender also received more attention than is apparent in this collection, but several of the best of these papers were withheld for reasons personal to the authors. In chapter one, Owen McMahon examines the New South Wales Government s Going Home Staying Home 1 reform initiatives and asks whether they will bring Australia closer to meeting its human rights obligations to women with children who are at risk of homelessness due to domestic violence. He starts by outlining the scope of the twin problems of domestic violence and homelessness, before considering the human rights obligations of government in relation to these issues. McMahon applauds the underlying intention of the Going Home Staying Home initiatives, while critically assessing their weaknesses and lack of resourcing. As he warns, [t]he shift to early intervention and prevention measures means less money is available for [Specialist Homelessness Service] accommodation; less money for a system already turning away one-third of those seeking housing support. 2 McMahon concludes that the system 1 Department of Family and Community Services, Going Home Staying Home Reform Plan, New South Wales Government ( GHSH ). 2 Owen McMahon, No Place Like Home : examining the Going Home Staying Home reforms in 1
Cristy Clark needs to be more comprehensive in its approach, and far better resourced. In chapters two and three, both Neil Hendriks and Sigrid McKenna examine the historical legal treatment of marriage in Australia and consider whether our current definition of marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life 3 complies with international law. Hendriks examines the complicated status of marriage in international human rights law, acknowledging that in Joslin v New Zealand 4 the UN Human Rights Committee gave a narrow interpretation to Article 23 of the International Covenant on Civil and Political Rights ( ICCPR ), 5 which provides that [t]he right of men and women of marriageable age to marry and to found a family shall be recognised. 6 However, he argues that the right to equality contained in Article 26 of the ICCPR and Article 2(2) of the International Covenant on Economic, Social and Cultural Rights ( ICESCR ), 7 along with the right to protection and assistance for family life contained in Article 10(1), should provide sufficient grounds for a right to marriage equality under international law. McKenna spends more time in her paper examining the implications of the High Court s decision in Commonwealth v Australian Capital Territory (2013). 8 She also considers the intersection of this right with the right to freedom of religious conscience as contained in Article 18 of the ICCPR, 9 before concluding that marriage equality does not seriously impede freedom of religion if one considers the broad range of religious approaches to the issue of same-sex attraction. In chapters four and five, Stephanie Rowe and Scharneese Philipp consider how well aspects of Australia s national security legislation comply with international human rights law. Rowe examines whether the Control Order system, introduced by way the Cristy Clark (ed) The politics of human rights in Australia: Law under the spotlight (2015) 8, 16, citing ibid, 7. 3 Marriage Act 1961 (Cth) s 5(1). 4 Communication No 902/1999, U.N. Doc CCPR/C/75/D/902/1999 (2002). 5 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entry into force 23 March 1976) ( ICCPR ). 6 Ibid art 23(2). 7 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entry into force 3 January 1976) ( ICESCR ). 8 Commonwealth v Australian Capital Territory [2013] HCA 55. 9 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 2
The politics of human rights in Australia Anti-Terrorism Act (No.2) 2005 (Cth) and set out in section 104 of the Criminal Code Act 1995 (Cth), 10 complies with Article 9 of the ICCPR which prohibits arbitrary arrest or detention and provides everyone with a right to procedural justice and the right to liberty and security of person. 11 After concluding that the Control Order system, as currently established under Australian law, appears to be based on discriminatory assumptions and does not comply with Article 9, Rowe recommends improving the Anti-Terrorism Act (No.2) 2005 (Cth) by (at minimum) providing for administrative review. 12 Philipp s paper examines the recent Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) 13 against the backdrop of UN Resolution 1373, 14 which establishes a framework to combat terrorism, and UN Resolution 2170, 15 which calls on states to suppress the recruitment of foreign terrorist fighters. He highlights the tension between the operation of the Foreign Fighters Act and the rights to privacy, freedom of movement, and procedural justice, as contained in the ICCPR. Phillip examines several case studies to illustrate this tension namely the Australian Government s treatment of Dr Mohammed Hanef, David Hicks and Matthew Gardiner. He concludes that a better balance between national security and human rights would be provided for if Australia adopted a national bill of rights. In chapters six and seven, Felicity Abotomey and Alannah Newton consider Australia s treatment of asylum seekers and whether this treatment complies with international human rights law. Abotomey examines the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) and, particularly, the introduction of the 'fast track' application and review process, which 10 Criminal Code Act 1995 (Cth). 11 The International Covenant on Civil and Political Rights 1966, Art 9. 12 Anti-Terrorism Act (No.2) 2005 (Cth). 13 Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth). 14 Ibid; United Nations Security Council, Resolution 1373 (2001) (28 September 2001) United Nations Security Council < http://www.unodc.org/pdf/crime/terrorism/res_1373_english.pdf>. 15 Security Council, Security Council Adopts Resolution 2170 (2014) Condemning Gross, Widespread Abuse of Human Rights by Extremist Groups in Iraq, Syria (15 August 2014) United Nations <http://www.un.org/press/en/2014/sc11520.doc.htm>; Geneva Academy, Foreign fighters under International Law (October 2014) Geneva academy of International Humanitarian Law and Human Rights <http://www.genevaacademy.ch/docs/publications/briefings%20and%20in%20breifs/foreign%20fighters%20under%20 International%20Law%20Briefing%20no7.pdf>. 3
Cristy Clark severely curtails merits review for applications for asylum. Abotomey s paper provides a background to the legal and political treatment of asylum seekers in Australia and considers the political rhetoric that accompanied the introduction of the fast track application process. Finally, Abotomey considers the human rights implications of this new process and agrees with the Parliamentary Joint Committee on Human Rights that it risks breaching Australia s non-refoulement obligations, as well as breaching the right to non-discrimination contained of Articles 3 and 31 of the Refugee Convention. 16 Newton s chapter Burden-sharing or burden-shifting? considers whether Australia s policy of offshore detention complies with its obligations under international law. She acknowledges that transferring asylum seekers to a third country for processing can theoretically be lawful, but argues that Australia has failed to comply with its obligations due to the way that it has conducted the transfers of asylum seekers to both Nauru and Manus Island. Newton details the many ways that offshore processing breaches the human rights of the asylum seekers who are under Australia s effective control by failing to guaranteed due process, non-discrimination, and protection from cruel, inhuman and degrading treatment, arbitrary detention and refoulment. Newton concludes: By contracting out Australia s humanitarian duties to lesser-developed countries, Australian governments are disregarding Australia s international obligations and worsening the trauma of refugees who are fleeing conflict, torture and persecution. 17 In chapters eight and nine, Michael Donachie and Cera Godinez consider the human rights of Indigenous Australians. Donachie s chapter considers the issue of Constitutional recognition and whether the proposed changes to the Constitution will adequately protect Indigenous Australians against racial discrimination by government. He situates the issue of recognition within the fraught history of reconciliation in Australia, including Indigenous claims for self-determination. Donachie concludes by observing that the Prime Minister s apparent rejection of a non-discrimination clause, might itself be discriminatory and give pay to the Cape York Institute s observation that, [h]istory has demonstrated that [Australian] Parliaments are not good at 16 Convention relating to the Status of Refugees (Refugee Convention), opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). 17 Alannah Newton, Burden-Sharing or Burden-Shifting? An analysis of the compatibility of Australia s policy of offshore processing with the principles of human rights established under international law in Cristy Clark (ed) The politics of human rights in Australia: Law under the spotlight (2015) 87, 98. 4
The politics of human rights in Australia listening to Indigenous people. 18 Godinez s chapter examines the human rights implications of the Stronger Futures in the Northern Territory Act 2012 (Cth) (SFP) the second phase of the 2007 Northern Territory Intervention. She focuses particularly on the issues of anti-discrimination and the right of self-determination. In relation to the question of discrimination, Godinez considers whether the SFP can be considered a Special Measure as defined by section 8 of the Racial Discrimination Act 1975 (Cth). In relation to the right of selfdetermination, she considers the obligation to consult and to obtain the free, prior, informed consent of Indigenous peoples prior to adopting and implementing legal or administrative measures affecting them, and notes that this was not done prior to the introduction of either the Intervention or the SFP. Godinez concludes that over-all, the SFP has not been developed from a human rights based approach and that it is time to [let] Australia s Indigenous population self-determine, develop and own strong collective solutions and build their own stronger future. 19 In the final chapter of this collection, Helena Kern examines how well Australian environmental law manages the conflict between industry and the right to a healthy environment. She starts by considering the status and content of the right to a healthy environment, and argues that it could be considered an emerging right in international law, and that the interrelated rights to health and to information could be considered more established and relevant to Australia. To focus her research question, Kern considers the operation of the National Environmental Protection Council Act 1994 (Cth) ( NEPCA ) in the context of two case studies, Port Pirie and Mount Isa, which are home to two of the largest lead smelting plants in the world. Kern concludes that these case studies demonstrate that the NEPCA currently fails to adequately protect the rights to health and information, and the right to a healthy environment, for the communities of Port Pirie and Mount Isa. A consistent theme emerges from all of the papers included in this collection: there are significant gaps in the protection of human rights in Australia and it is often 18 Michael Donachie, Constitution recognition and the rights of Indigenous Australians in Cristy Clark (ed) The politics of human rights in Australia: Law under the spotlight (2015) 100, 112 citing Commonwealth of Australia, Committee Reports (Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Interim Report, July/2014, Progress Report, October/2014, Final Report June/2015. http://www.aph.gov.au/parliamentary_business/committees/joint/constitutional_recognition_of_ Aboriginal_and_Torres_Strait_Islander_Peoples/Completed_inquiries, 62, [5.75]. 19 Cera Godinez, Stronger Futures? in Cristy Clark (ed) The politics of human rights in Australia: Law under the spotlight (2015) 115, 12. 5
Cristy Clark minority groups who are left vulnerable under our current system. As the analysis contained in this collection demonstrates, Australia currently lacks a comprehensive and cohesive framework for the protection of human rights from government infringement. Perhaps it is time we enacted a Charter of Rights? References A. Articles/Books/Reports Commonwealth of Australia, Committee Reports (Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Interim Report, July/2014, Progress Report, October/2014, Final Report June/2015. http://www.aph.gov.au/parliamentary_business/committees/joint/constitutional _Recognition_of_Aboriginal_and_Torres_Strait_Islander_Peoples/Completed_inqu iries Donachie, Michael, Constitution recognition and the rights of Indigenous Australians in Cristy Clark (ed) The politics of human rights in Australia: Law under the spotlight (2015) 100 Geneva Academy, Foreign fighters under International Law (October 2014) Geneva academy of International Humanitarian Law and Human Rights http://www.genevaacademy.ch/docs/publications/briefings%20and%20in%20breifs/foreign%20figh ters%20under%20international%20law%20briefing%20no7.pdf Godinez, Cera, Stronger Futures? in Cristy Clark (ed) The politics of human rights in Australia: Law under the spotlight (2015) 115. McMahon, Owen, No Place Like Home : examining the Going Home Staying Home reforms in Cristy Clark (ed) The politics of human rights in Australia: Law under the spotlight (2015) 8. Newton, Alannah, Burden-Sharing or Burden-Shifting? An analysis of the compatibility of Australia s policy of offshore processing with the principles of human rights established under international law in Cristy Clark (ed) The politics of human rights in Australia: Law under the spotlight (2015) 87. B. Cases Commonwealth v Australian Capital Territory [2013] HCA 55 C. Legislation Anti-Terrorism Act (No.2) 2005 (Cth). Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth). Criminal Code Act 1995 (Cth). 6
The politics of human rights in Australia Marriage Act 1961 (Cth) D. Treaties Convention relating to the Status of Refugees (Refugee Convention), opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entry into force 23 March 1976) ( ICCPR ). International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entry into force 3 January 1976) ( ICESCR ). E. Other Communication No 902/1999, U.N. Doc CCPR/C/75/D/902/1999 (2002). Department of Family and Community Services, Going Home Staying Home Reform Plan, New South Wales Government ( GHSH ). Security Council, Security Council Adopts Resolution 2170 (2014) Condemning Gross, Widespread Abuse of Human Rights by Extremist Groups in Iraq, Syria (15 August 2014) United Nations http://www.un.org/press/en/2014/sc11520.doc.htm United Nations Security Council, Resolution 1373 (2001) (28 September 2001) United Nations Security Council 7