President speeches: Speech at Annual UNAA Day Dinner
Commission – General
Speech at Annual UNAA Day Dinner
UN Association of Australia (UNAA) - S.A.
Division
The Hon Catherine Branson QC
25 September 2009
Introduction
I would like to begin by acknowledging the traditional owners of the land on
which we meet, the Kaurna people, and pay my respects to their elders past and
present.
I thank Heather Southcott for inviting me to speak here this evening. I was
very sorry to hear that she is unable to be with us and I send her my best
wishes.
Heather gave me licence to speak on a topic of my choosing.
So this evening, I thought I would speak about two potentially significant
developments in improving human rights protection and accountability – one
within the United Nations framework and one closer to home.
First, I will look at a relatively new Human Rights Council mechanism that
you should hear more about in the near future – the Universal Periodic
Review process, or UPR for short. Australia is due to be reviewed pursuant to
this process in early 2011.
Secondly, I will offer some reflections on the National Human Rights
Consultation and the recommendations made by the Consultation Committee in its
Report which was publicly released approximately three weeks ago.
Overview of the Human Rights Council
Most of you will know of the role of the United Nations Human Rights Council.
The Council promotes universal respect for all human rights and the full
implementation of the human rights obligations undertaken by States. It is also
tasked with promoting ‘the effective coordination and the mainstreaming of
human rights within the United Nations system’.
The Council is a subsidiary of the UN General Assembly. It replaced the
Commission on Human Rights in 2006. It is not to be confused with the Human
Rights Committee, which is a treaty monitoring body responsible for monitoring
State compliance with the International Covenant on Civil and Political
Rights.
The Human Rights Council consists of 47 States, who are elected by secret
ballot by Member States of the General Assembly. Membership of the Council is
based on equitable geographic distribution.
States elected to the Council are to ‘uphold the highest standards in
the promotion and protection of human rights’. The General Assembly, by a
two-thirds majority vote, may suspend the rights of membership in the Council of
a State that commits gross and systemic violations of human rights.
The functions of the Council include:
- promoting human rights education and learning
- serving as a forum for dialogue on human rights issues
- making recommendations to the General Assembly for the further development
of international human rights law - receiving complaints of consistent patterns of gross and reliably attested
violations of human rights and fundamental freedoms.
The Council
also appoints independent experts to monitor, advise and report upon human
rights situations in specific countries or human rights themes.
For example,
you may have heard of the ‘Special Rapporteur on the situation of human
rights and fundamental freedoms of indigenous people’, who was in
Australia recently. The Special Rapporteur travelled across Australia and met
with Government authorities, representatives of Aboriginal and Torres Strait
Islander communities and organisations. He will report his findings on the
realisation of human rights by Aboriginal and Torres Strait Islander peoples and
make recommendations to the Human Rights Council in the coming months.
I would like to focus now on what I believe to be one of the most significant
elements of the work of the Human Rights Council – the Universal Periodic
Review.
Universal Periodic Review: An Outline
The UPR is a new mechanism. The first UPR session was held in 2008.
Under the UPR, the human rights records of all UN Member States will be
reviewed every four years. It is a State-driven process, by which each State
declares what actions it has taken to improve the human rights situation in its
country and to fulfil its human rights obligations.
In particular, the UPR assesses the extent to which the State party under
review is meeting its human rights obligations pursuant to:
- the UN Charter
- the Universal Declaration of Human Rights
- human rights instruments to which the State is a party
- voluntary commitments made by the State
- applicable international humanitarian law.
As part of the UPR
process, the State party under review presents a national report. Its human
rights performance is then examined by other States in interactive
‘question and answer’ sessions between the State under review and
other UN Member States.
The outcome of the UPR is a report, adopted by the Human Rights Council,
containing questions, comments and recommendations made by States to the country
under review. This report also contains the responses of the reviewed State.
For example, New Zealand received its first UPR in May this year. The final
report on the UPR includes recommendations that New Zealand take actions such
as:
- adopting further international human rights instruments, such as the UN
Declaration on the Rights of Indigenous Peoples - introducing measures to bring domestic law into line with international
human rights obligations, including those relating to economic, social and
cultural rights - introducing measures to combat discrimination and racism, including in the
criminal justice system - committing more resources to the provision of services for children with
disabilities - reinforcing procedural guarantees in counter-terrorism legislation.
Canada underwent review in February this year. The final report
recommended that Canada take actions such as:
- adopting the Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights and recognising the justiciability of economic,
social and cultural rights in accordance with the Optional Protocol (that is,
that courts have the authority and competency to resolve questions concerning
ESC rights) - developing a national strategy to eliminate poverty
- accepting the request by the Special Rapporteur on the human rights of
migrants to make a country visit.
The primary responsibility then
rests with the State to implement the recommendations. The next time the State
is reviewed, it will be expected to report on its progress in implementing the
recommendations.
In this way the UPR process provides an incentive for governments to improve
the protection of human rights and to engage more effectively with
non-government organisations on human rights issues. In turn, this may lead to
more open, transparent and accountable domestic arrangements.
The significance of the UPR for international governance
It remains to be seen whether the UPR process can serve as an effective check
against human rights violations in the long-term. After all, the UPR process is
less than two years old.
However, the UPR process provides for the systematic monitoring, on an equal
basis, of the human rights situations in every UN Member State. The principles
underpinning the UPR expressly state that it should be ‘conducted in an
objective, transparent, non-selective, ... and non-politicized
manner’.
In this way, the UPR contributes to international governance by holding each
and every country publicly accountable for its human rights performance. It is a
way of encouraging States, on the international stage, to implement their
obligations to respect, protect, promote and fulfil human rights.
The UPR also has international significance for Australia. As I mentioned,
Australia is due to be reviewed in early 2011. This is important in light of the
Australian Government’s intention to seek a highly coveted seat on the UN
Security Council for the 2013 – 2014 term.
In the lead-up to the Security Council election, Australia’s human
rights record will undergo particularly close scrutiny. For this reason, how
Australia performs in the UPR process will almost certainly have a bearing on
Australia’s candidacy.
The significance of the UPR for civil society
However, I believe that the UPR process is valuable for a further reason. The
UPR has the potential to encourage greater engagement between States and civil
society, including national human rights institutions, universities and
non-government organisations.
In addressing the opening of the first session of the Human Rights Council,
Louise Arbour (then the United Nations High Commissioner for Human Rights)
encouraged the Council to draw upon the expertise of civil society.
As Ms Arbour observed:
Their independent scrutiny ensures that accountability is not a mirage. ...
Drawing on civil society's knowledge, vigilance and energy will help the Council
target its action more effectively and justly. It will also set the example for
reluctant governments to do the same.
The Human Rights Council encourages civil society to be involved at several
stages of the UPR process.
First, States are encouraged to undertake a broad consultation process at the
national level with all relevant stakeholders in preparing a national report to
present to the UPR.
These ‘stakeholders’ can include NGOs, national human rights
institutions (such as the Australian Human Rights Commission), human rights
defenders, academic institutions and research institutes.
Secondly, these ‘stakeholders’ may submit information to be
considered during the review of the State. These submissions may inform the
interactive dialogue between the State under review and other States.
Thirdly, ‘stakeholders’ may attend and observe the interactive
dialogue between States during the review.
Finally, ‘stakeholders’ may make general comments before the
final report of the UPR is adopted by the Human Rights Council.
It is difficult for most stakeholders to send representatives to Geneva to
attend a UPR session – the costs of travel can be prohibitive. The ability
for stakeholders to provide input to the State’s national report and to
draft their own submissions in the lead-up to the review is therefore vitally
important.
Yet, even these aspects of the process present challenges for stakeholders.
We do need to be vigilant and remind States of their responsibilities to
conduct broad consultations in the preparation of their national reports. It is
not unheard of for a State to conduct ‘consultations’ only after its
national report has been fully or substantially drafted.
Also, submissions to the UPR are strictly limited in length –
stakeholder submissions must be no more than 5 pages long. All of the reports
submitted by stakeholders are then condensed into a 10 page summary by the
Office of the High Commissioner for Human Rights.
This means that stakeholders need to be concise and emphasise key, strategic
points in drafting their submissions. Stakeholders may also wish to work
together to ensure their messages are successfully conveyed.
That being said, I believe that the very process of consultation can assist
States to identify human rights problems and, most importantly, develop
solutions that are consistent with international obligations.
There are promising signs that the present Australian Government is open to
listening to community perspectives on human rights.
A leading example of this is the National Human Rights Consultation –
which is a nice little segue to the second part of my talk.
National Human Rights Consultation
As you will be aware, the Australian Government appointed an independent
committee to consult with people in Australia about the protection of human
rights in this country. The Consultation Committee received more than 35,000
submissions. Another 6000 people attended the community roundtables held by the
Committee in 52 locations around Australia. This is the largest participation in
a national consultation process ever seen in Australia.
The committee handed its report to the Government on 30 September. This
report was then released to the public on 8 October.
The report emphatically demonstrates that human rights matter to Australians,
wherever they live, and that they want our government to make sure that rights
are better protected and better understood.
As explained by the Committee chair, Father Frank Brennan, ‘87.4 per
cent of those who presented submissions to the Committee and expressed a view on
the question supported such an Act — 29,153 out of 33,356. In the national
telephone survey of 1200 people, 57 per cent expressed support for a Human
Rights Act, 30 per cent were neutral, and only 14 per cent were
opposed’.
What did the Committee hear?
The Committee heard that there have been serious breaches of human rights in
Australia. The following examples from the past decade were frequently raised
during the Consultation:
- the suspension of the Racial Discrimination Act 1975 (Cth) in order to
implement the Northern Territory Emergency Response (often called the
Intervention) - the lengthy, and potentially indefinite, mandatory detention of asylum
seekers and - the increase in the powers of law enforcement agencies under new national
security laws.
The Committee observed a general sentiment that
‘the power of the executive arm of government needs to be checked’.
But the Consultation did not only hear about high-profile examples of human
rights breaches, such as those that I have mentioned.
The Committee also heard about the human rights that affect so many of us in
our everyday lives. Basic rights, such as the right to the highest attainable
standard of health, the right to an adequate standard of living, the right to
adequate housing and the right to education. Many people told the Committee of
their concern that vulnerable groups such as Aboriginal and Torres Strait
Islander people, people experiencing homelessness, the mentally ill, people with
disabilities, the elderly and children in care often miss out on the fulfilment
of some of their basic rights.
What did the Committee recommend?
The report makes two major recommendations: first, that the Australian
Government focus on human rights education and secondly, that the Australian
government enact a national Human Rights Act. The Australian Human Rights
Commission welcomes both these recommendations and believes that they should be
implemented together.
The Committee also recommends that the functions of the Australian Human
Rights Commission be enhanced. In particular, it recommended that the definition
of ‘human rights’ under our Act be expanded. This would mean the
Commission could perform its key functions with regard to all of
Australia’s international human rights obligations.
A Human Rights Act
I will now spend a little time explaining why we in Australia need a Human
Rights Act and how it might work.
The Commission provided a detailed submission to the Consultation outlining
why we think that a Human Rights Act is fundamental to increased human rights
protections, and our view on how such an Act should work.
The Commission believes that the building blocks of a good system of human
rights protection include:
- an Australian Parliament that considers the human rights implications of all
new laws - Australian Government decision-makers who respect human rights when
implementing laws, developing policy and delivering public services - Australian courts that consider human rights when making decisions
- Individuals with the right to challenge government decisions which breach
their human rights and - an Australian public that is aware of their human rights and their
responsibility to protect the rights of others.
The Committee
recommended a Human Rights Act based the ‘dialogue model’, which,
coupled with human rights education, would ensure that Australia has the
building blocks needed for significantly enhanced human rights protection.
Conclusion
Tonight, I have talked about two distinct but related processes for improving
the accountability and human rights compliance of governments. The UPR process,
and the Human Rights Council itself, are still in their infancy. The Report of
the National Human Rights Consultation and its recommendations are still being
considered by the Australian Government.
By encouraging the effective participation of civil society in the UPR
process, Australia can build upon the dialogue that began with the National
Human Rights Consultation.
We look forward to engaging with the Australian Government in the
preparations for the UPR of Australia. We also look forward to engaging with the
Australian Government as it gives consideration to the recommendations in the
Report of the National Human Rights Consultation. Perhaps even more importantly
we look forward to working with civil society to ensure that the non-government
sector, and the diverse interests it represents, are involved in these processes
also.
Thank you for the opportunity to speak with you this evening.