Hotung Fellowship Public Lecture 2016

Check against delivery

Human rights across the Tasman: a widening gulf

I am honoured to have been invited to give this lecture at the Law School of the University of Canterbury, funded by the generosity of the Sir Eric Hotung Fellowship. 



While I had settled the subject matter of this lecture, I thought it would be helpful to know what other Hotung Fellows had discussed in previous years. I looked at last year’s lecture and was pleased to see that Professor Morrison had spoken about the holocaust in Nazi Germany and the role of the legal system and judiciary. The conventional wisdom has been that the holocaust was made possible because there had been a failure of laws and of the rule of law. To the contrary, Professor Morrison argued that the law facilitated the holocaust because they validated discrimination against Jews, political dissidents, communists and the disabled, and ultimately their extermination. In short, he argued, law and the legal system, as such, do not guarantee fundamental human rights.



In many respects, Professor Morrison’s thesis underpins my lecture tonight. That is, the idea of the rule of law means much more than the technicalities of the law-making process or the details of specific rules. Rather, the rule of law requires that laws passed in a democratic system should comply with underlying principles of transparency, equality, fairness, access to justice, and respect for human dignity. Critically, modern democracies need to understand and respect the separation of the powers among the Executive, Parliament and the Judiciary. If this regime of checks and balances is upset, democracy and human rights are at risk.



These ideas are, of course, highly abstract ones that have real meaning only when we consider their impact in practice.



Let us look at the recent cause celebre between New Zealand and Australia. As at March 2016, about 181 New Zealanders are detained in Australian detention facilities, about 50-60 of them on Christmas Island. Each is held on the ground that, as non-citizens, their visas have been cancelled under s 501 of the Migration Act.



Sadly, a New Zealand citizen Mr Peihopa died suddenly after an altercation yesterday at the Villawood Detention Centre outside Sydney, after 10 months in immigration detention on the cancellation of his visa, the second such death in custody recently.



I have chosen the example of immigration detention, partly because such detentions have stimulated media attention and debate across the Tasman in recent months, but partly also because it serves to make the point that there is a widening gulf between New Zealand and Australia in our respective approaches to the rule of law, especially as it applies to human rights.



New Zealand has long benefited from the enactment in 1990 of the Bill of Rights Act (NZ) and, also, from the existence of the Waitangi Treaty in respect of indigenous rights and interests. In these ways, New Zealand has the scaffolding on which to build a human rights culture.

Commenting on the value of the Bill of Rights, Sir Geoffrey Palmer observed that:

After 21 years, it seems to be an objective statement of legal reality in New Zealand to assert that the Bill of Rights Act is an important part of public law and one that has spawned a significant body of jurisprudence.1



In stark contrast, Australia has no such legislation, or ‘navigation light’, with which to guide governments and to ensure compliance with the common law and international protections for fundamental rights and freedoms.2



I suggest that the example of the s 501 visa cancellations reflects the declining respect for human rights in Australia and this nation’s growing isolation from recognised global norms and jurisprudence.  Australia has much to learn from the New Zealand experiences with its Bill of Rights, especially in demonstrating that, as Sir Geoffrey Palmer has pointed out:



‘the judges have been careful and modest as to their role, and have not turned into a juristocracy, running a separate agenda from the elected representatives of the people in Parliament’.3



One the most powerful, and politically effective, criticisms of Charters and Bills of Rights by, in particular some Australian politicians, has been that judges might be tempted to override the intentions of parliament and become judicially active in advancing human rights law. To the contrary, it is notable in New Zealand that, over the last 25 years, a declaration of incompatibility of a law with the Bill of Rights has been made only once, that is, last year in Taylor v Att Gen. [2015] NZHC 1706. Despite a failure to make formal declarations, the Bill has nonetheless stimulated valuable guidance in interpreting the language of the Bill.



Tonight, I would like to explore how and why Australia’s approach to implementation of its human rights obligations has been so different from that of New Zealand and, indeed, from that of comparable democratic nations around the world. 

For the moment let us look more closely at section 501 of the Migration Act 1958 (Cth).



S. 501 Migration Act (Cth)



This statutory provision requires that:



 (3A)  The Minister must cancel a visa that has been granted to a person if:

…the Minister is satisfied that the person does not pass the character test

A person does not pass the character test if they have a substantial criminal record, have committed a sexual offence against a child, has been convicted of an offence that was committed while the person was in immigration detention; or has been assessed by the Australian Security Intelligence Organisation to be a risk to national security. A person will have a substantial criminal record if they have been sentenced to 12 months imprisonment or more, or if the total of several shorter terms amounts to 12 months or more.

The guiding Direction to the Minister provides that:



…in determining whether to exercise the discretion under section 501CA to revoke the mandatory cancellation of a visa, the best interests of minor children in Australia is to be a primary consideration.4



However:



‘the strength, duration and nature of the person’s ties to Australia’ is no longer a primary consideration in deciding whether to cancel a non-citizen’s visa or refuse an application for a visa.5 



Unusually, the mandatory cancellation of a visa is a power that, under the Migration Act, remains valid despite any failure by the Minister to comply with the usual administrative rules of natural justice.



Since 11 December 2014, when the changes to s 501 came into effect, the visas of 533 New Zealand nationals have been cancelled under the mandatory cancellation provisions. A small number, about 28 New Zealand nationals, have had their visas cancelled on other grounds.6



The special impact of immigration detention on New Zealand citizens, as distinct, for example, from British citizens, is illustrated by the fact that about one third of all those held on cancellation of their visas are New Zealand nationals.7 



Over the last year 146 New Zealand citizens were removed from Australia, and the rate of removals shows a dramatic increase over the last six –nine months of 20158.  The average length of immigration detention is over one year and 4 months (464 days).9 



Many of the New Zealand detainees are being held on Christmas Island, along with adult male asylum seekers and refugees.  I cannot give you an exact number because of the secrecy surrounding these detentions and the lack of up to date and relevant information from the Government.



It is clear, nonetheless, that the conditions on the island - remoteness, lack of access to legal advice, separation of families, poor medial facilities, tropical heat, accommodation in remodelled containers - are below international standards for immigration detention and have prompted the UN Rapporteur on Torture to advise Australia that the harsh conditions violate human rights and the Torture Convention. These conditions have led almost inevitably to protest and unrest by detainees and the allegedly disproportionate use of force by camp guards. It has, for example, been reported by the Secretary of the Department of Immigration and Border Security that about 50 or so New Zealanders participated in a disturbance last year at the North West Point camp on Christmas Island.10



These statistics do not adequately illustrate the human impact of the visa cancellations on New Zealanders and others. I would like to mention three cases that have received some media attention.



Dylan Fraser is a 23 year old New Zealand citizen who was deported on 2 June 2015. Fraser arrived in Australia as a six year old with his parents in 1998. He has two children, and his mother and two sisters live in Australia. In 2011, aged 19, he was convicted of assault with a baseball bat and was imprisoned for two years.  Five months after his release on parole, Fraser’s visa was cancelled and he was moved into Villawood immigration detention centre where he has been held for a further 13 months during which he is challenging the decision to cancel his visa.11



Junior Togatuki, a New Zealand national, moved with his family to Australia as a four year old. Having served time as a juvenile offender for armed robbery and assault and for further assaults on guards while detained, he was re-detained as a 23 year old in Goulburn’s Supermax prison. His visa was cancelled on character grounds.  In detention his mental health declined, exacerbated by periods in solitary confinement. Two weeks prior to his release date last year, he was found dead in his cell.12  When challenging the Minister’s decision to revoke his visa, he stressed that all his siblings had been born and remained in Australia.



Angela Russell13  left New Zealand with her parents in 1978 as a three year and has lived in Australia for 37 years. She has two children, both Australian citizens. In 2008 she was imprisoned for 18 months for entering a dwelling and using threats of violence whilst armed. She was imprisoned a second time in January 2015 for further nine months.14  She was advised by the Minister that she would be deported 2 weeks before her scheduled release and moved to Wickham Point detention facility in September last year. No recent information is available.

These sad cases raise many international human rights concerns.



It should, however, firstly be recognised that, as a matter of international law, sovereign nation states, including New Zealand and Australia, have the right to determine who may be admitted or deported from their territory. Traditionally, non-citizens may validly be expelled by a sovereign state for any reason. Certainly, non-citizens may, in principle, be expelled for substantial breaches of the criminal law. However, secondly and critically, this sovereign right is now subject to 20th century treaty obligations such as the Conventions on the Rights of the Child, Refugees, Torture and Statelessness and the ICCPR. Today, the power of governments to detain a non-citizen is tempered by the primary interests of the child, the rights to family life and access to legal advice and independent courts, to humane standards of accommodation and medical care and to protection from the unnecessary and disproportional use of force by guards.



In addition to international law, democratic states are bound to implement their international human rights obligations in national laws and to abide by common law and constitutional principles protecting against arbitrary detention, and ensuring access to the courts and adherence to the rules of natural justice.



The specific case of the New Zealand visa cancellations, detention and deportation is but one illustration of a significant failure under Australian law to comply with both the common law and international human rights law.  There are many examples of breaches that have been raised repeatedly by the Australian Human Rights Commission including:



• A suite of counter-terrorism laws that diminish fundamental freedoms such as the right to privacy, and the prohibition on arbitrary detention.

• Metadata retention laws that violate the right to privacy, and threaten freedom of speech as they give access to that data without a warrant to law enforcement agencies. (Note comparison with warrants required for content of data).

• Legislative exclusion of decisions under the counter-terrorism laws, national security and migration laws from administrative review (Administrative Decisions (Judicial Review) Act (Cth)).

• Asylum seeker policies that validate acts of government officials and give unprecedented scope to ministerial discretion and explicitly breach the customary and treaty prohibition on refoulement to a place of persecution or danger.

• Restrictions on the right to a merits review by an independent tribunal and the practical limits on the right to judicial review.

• WA’s anti-protest laws and Queensland “anti-bikie” laws.

• Commonwealth secrecy laws that impose 2 year prison sentences on those that speak about conditions in offshore processing centres (Border Force Act).

• Secrecy and non-transparency of all ‘on water’ matters.

• Lengthy administrative detention in prisons of those with cognitive disabilities or who are unfit to plead.

• Stripping of citizenship of those with dual nationality who are found to have acted inconsistently with allegiance to Australia.

• Disproportionate incarceration of indigenous Australians, especially youths through, for example, paperless arrest laws of the Northern Territory. 27% of juvenile detentions are indigenous and about 85% of the prison population in the NT is indigenous.

• Reduction of funding to community legal aid centres and refugee support groups.



How is it that such laws and policies are valid under Australian law when they are likely to be struck down or moderated in comparable legal systems? What are the safeguards of democratic liberties if a compliant Parliament and weak opposition pass such laws, expanding the executive power of government and limiting review by the judiciary?



Australian Exceptionalism re Human Rights Implementation

The failure, over many decades, of various political efforts to implement Australia’s human rights treaty obligations in its domestic law has left a legacy of exceptionalism and isolation from global human rights jurisprudence.

Australia’s exceptional approach stands in stark contrast to other comparable legal systems, where human rights commitments are reflected in domestic laws, constitutional provisions or bills of rights that limit the power of parliament to authorize the executive to act inconsistently with international obligations.

Australia’s retreat from its human rights obligations betrays its historical commitment to developing contemporary international human rights law.



Australia was active in protecting human rights through the International Labour Organisation (ILO) and the League of Nations, as a founding member in 1919 and 1920 respectively.  These early experiences nurtured two features of Australia’s relationship with the international human rights order that have persisted into the twenty-first century: concern that protection of human rights disturbs the federal constitutional balance; and tension between adherence to human rights and Australia’s immigration policies.



While Australia was active in the drafting of ILO conventions, it was slow to ratify them; a pattern that persists to this day. The ILO Constitution contained a “federal” clause which provided that, in the case of a federal state whose power to enter into Conventions was limited, its government could treat a Convention to which such limitations applied as a Recommendation, thus becoming subject only to an obligation to consider it “with a view to” placing it before the constituent states for implementation.15  Australia has taken full advantage of the federal clause. By 1946 Australia had ratified only twelve out of 68 ILO Conventions.16  Australia’s Minister for External Affairs, Dr H.V. Evatt, blamed this on the recalcitrance of the states and their poor coordination.17 



At Versailles, Prime Minister Hughes argued against a provision allowing free entry of nationals of members of the League into the territories of other League members, worrying that:



Our White Australia Policy would be a pricked bladder. Our control of immigration laws would be so much waste paper.18



A quarter of a century later, as Minister for External Affairs, Dr Evatt, played a significant role in drafting the  Charter of the United Nations, adopted in 1945. Dr Evatt was a strong supporter of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December 1948 while Evatt was President of the General Assembly.  He also presided over the adoption of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Australia led a campaign for an International Court of Human Rights.19  The early Australian interest in the design of international human rights standards was however tinged by ambivalence. Like Billy Hughes at Versailles, Dr Evatt was particularly cautious about any international statements on racial equality, concerned that this might affect Australia’s restrictive immigration policies.20  



Australia was also active in the drafting of later treaties that translate the commitments of the Universal Declaration into binding obligations, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both adopted in 1966.21 



In more recent times, a gap has opened up. While every region of the world, Europe, the Inter-Americas, Africa, and Arab nations have established regional agreements on human rights Australia is not part of any human rights treaty in the Asian region, where ratification of human rights treaties has been slow. There is no judicial body or human rights commission for the region as exists in Europe, the Inter-Americas, and African or Arab states. The consequence is that there is no regional human rights jurisprudence that could provide a scaffolding for evolving regional norms in the Asia Pacific.

In summary, Australia’s international role in promoting human rights laws has been one of leadership and commitment. But it is a unique feature of Australia’s approach to human rights that its international engagement has not been matched in its domestic law.

Unlike every common law country and most civil law countries, including comparable jurisdictions such as Canada, New Zealand, United Kingdom, United States, South Africa, and Europe, Australia has few constitutional protections for human rights and no Bill or Charter of rights. 

The Commonwealth of Australia Constitution does not specifically list traditional common law freedoms. The Constitution explicitly protects only the right to vote, to compensation for unjust acquisition of property and freedom of religion. All other freedoms depend for protection upon other legal mechanisms, especially the courts.  It rested with the High Court, for example, to imply a right of political communication; a right that does not fully equate to the common law or international law rights to freedom of speech.

The deficits in constitutional protection would not be fatal to the protection of human rights in Australia had Parliament legislated to implement the core human rights treaties to which Australia is a party.  In fact, the ICESCR, ICCPR, and CROC, among others, have not been implemented as part of national law. Moreover, governments have deleted key international obligations from domestic laws.  The non-refoulement provision of the Refugee Convention has, for example, now been excised from the Migration Act 1958 (Cth). It is one thing for Australia’s diplomats to play a widely respected role in negotiating and ratifying human rights treaties in the international area. It has proved to be quite another to garner the political will in Federal Parliament to pass the legislation to make those human rights obligations binding under national law.

Compounding Australia’s exceptionalism in failing to ensure national compliance with its international human rights obligations, is the fact that only the most fragile and vulnerable bridge connects the international human rights monitoring regime with Australian law. This bridge lies in the right of individual communication to the UN Human Rights Committee under the ICCPR and the supervisory role of the Human Rights Council through the Universal Periodic Review, a process just completed in Geneva two weeks ago.



Unlike the system of periodic reports which applies to all treaty parties, States have an option to accept the possibility of the treaty bodies considering complaints from individuals alleging that the State has breached the terms of the treaty, if all local remedies have been exhausted. Australia has agreed to such mechanisms in relation to some of the human rights treaties to which it is a party: the ICCPR22,  ICERD23,  CEDAW24,  and the CRPD25.



This has led to a number of international decisions on Australia’s human rights record. Since 1994 UN treaty bodies have found Australia in violation in 36 individual communications. Perhaps best known, was that of the UN Human Rights Committee in Toonen’s case in 1992 declaring Tasmanian laws that criminalised male homosexuality to be inconsistent with human rights.26  Australia’s violations of human rights have been found to include the mistreatment of children in immigration detention, inhumane treatment of prisoners; the denial of the right to family life; and undue trial delay.



It is disappointing that Australia has not responded positively to the findings and recommendations of most of the UN human rights monitoring bodies. Last year, for example, the UN Rapporteur for the Convention against Torture advised Australia that the offshore processing centers breached this Convention, to which the former Prime Minister replied, we will not be lectured to by the United Nations.

While the overwhelming majority of the 110 nations at Australia’s recent Universal Periodic Review made 290 recommendations to the effect that Australia should respect human rights laws with regard to indigenous peoples, violence against women and asylum seeker policies, the Australian Government, in its response, ignored most of them and rejected others on the unsupported assertion that Australian law is currently compliant with its international obligations.

There are three significant exceptions to the failure to implement international human rights legislation as part of domestic law. Australia has enacted laws to give effect to three treaties dealing with discrimination on the grounds of race, sex and disability. In addition, Australia has enacted a prohibition on discrimination on the ground of age; a leadership initiative where there is no international obligation specifically dealing with this criterion of discrimination. Some provisions of the ICCPR have also been adopted in ad hoc Federal, state and Territory provisions. The Privacy Act (Cth), for example, gives effect to Article 17 of the ICCPR requiring State Parties to respect the right to privacy.

While human rights in Australia are inadequately protected by the Constitution or by domestic legislation, it might be thought that the common law provides a reliable safety net. Under the common law, Parliament is presumed to have intended to comply with international law and the principle of legality.

Some optimism for the role of human rights treaties was prompted by a decision of the High Court of Australia, under the Chief Justice Sir Anthony Mason, that is of special relevance to the s 501 visa cancellation cases. This was the decision in Teoh’s case whereMr Teoh, a Malaysian citizen arrived in Australia in 1988 and married an Australian citizen. They had three children, in addition to his wife’s existing four children. Mr Teoh served six years imprisonment for offences related to heroin trafficking and possession. His application for resident status, made prior to his conviction, was refused on character grounds. The legal question of the High Court was whether the provision of the CROC that bound Australia to treat the best interests of the child as a primary consideration was binding on government decision-makers. While Australia had ratified the Convention, it had not, and still has not, implemented the obligations into domestic law by implementing legislation.



The High Court considered, despite the lack of legislation, that Mr Teoh had a legitimate expectation that decision makers will treat the best interests of the child as a primary consideration. As there was no indication this occurred in the consideration of Mr Teoh’s residency application, the HCA held there had been procedural unfairness.27



This decision created much consternation, and often outrage, in both the political and legal circles. This is explained in part because the notion of a ‘legitimate expectation’ that provisions in human rights treaties could inform government decision-making without parliament’s express requirement to do so was based on slender precedent. It also suggested that the will of Parliament could be reinterpreted or avoided by judges. As an international lawyer, I saw the Teoh decision as a ray of light through hitherto impenetrable blindness to Australia’s international obligations. Moreover, the decision was not in any way revolutionary. The High Court merely required government officials to take Australia’s human rights obligations into account when making decisions. It did not mandate the outcome of those deliberations that should include consideration of international law.



This ray of light was not, however, to last long. The idea of a legitimate expectation was challenged by the High Court some years later in Lam’s Case  and members of the High Court have disapproved of the use of the phrase ‘legitimate expectation’, favouring instead the more traditional principle of procedural fairness. More recently, in 2015, the High Court in Le v Minister for Immigration and Border Protection [2015] FCA 1473 confirmed that, although ministerial directions make the best interests of the child a primary consideration in decision making, these do not bind the minister personally when making a decision. 



In SZSSJJ v Minister for Immigration and Border Protection and Others 326 ALR 641 the court referred to Lam, stating that the case ‘pivots the underlying analytical jurisprudence away from a doctrinal reliance upon legitimate expectation towards an examination of the fairness of the process’.

While there may be some scope to consider international human rights law when considering fairness, most courts will not do so in practice.

By far the most powerful principle of statutory interpretation limiting the capacity of the courts to consider international obligations is that even, fundamental common law freedoms, such as the right not to be detained arbitrarily and to freedom of speech, can be overridden by clear and ambiguous words to the contrary.

It is for this reason, the common law has not proved to be an effective protection for human rights. 

The most compelling examples of the inability and/or reluctance of the courts to rely on common law freedoms have arisen in recent years in the context of Australia’s asylum seeker policies where the executive (or government) discretion to detain a person without charge or trial has been unprecedented in its scope and length. This so-called administrative detention is now used to detain those with cognitive disabilities or are unfit to plead to criminal charges, (typically indigenous Australians) asylum seekers arriving by sea and s 501 visa cancellations.

In a now notorious decision of the High Court in 2004, a 4 member majority in Al Kateb v Godwin & Ors [2004] HCA 37, concluded that the mandatory detention of asylum seekers, as required by the Migration Act 1958, is constitutionally valid. The Plaintiff was a stateless Palestinian man whose claim to refugee status had been rejected by the Government, Refugee Review Tribunal and Federal Court. No country would accept him, with the result that Al Kateb was detained for five years by the Australian government without charge or trial.

Chief Justice Gleeson, in dissent, affirmed that the courts:

“…do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language”.28

Judges will differ as to whether clear and unambiguous language has been used. But, in practice, superior courts in Australia have tended to respect the words of the statute, even where the consequence is an egregious breach of the most fundamental of human rights.

A more recent illustration of how freedoms recognized by the common law can be overridden by Constitutional powers and by Parliament when a statute is couched in clear words is the decision of the High Court in Plaintiff M68/2015 v Minister for Immigration and Border Protection  (3 February 2016, [2016] HCA 1).  The Plaintiff, a Bangladeshi asylum seeker and “unauthorized maritime arrival” under the Migration Act 1958 (Cth), sought a declaration that the Commonwealth and Minister acted beyond their executive powers under s61 of the Constitution by enforcing her detention at a Regional Processing Centre in Nauru.  As Gageler J. recognized, the focus of the case was on the capacity of the Executive Government of the Commonwealth “to procure or enforce a deprivation of liberty”.29   He cited with approval the majority view in Chu Kheng Lim v Min. for Immigration (11992) 176 CLR 1, at 19   that:

‘Under the common law of Australia…an alien who is within this country, whether lawfully or unlawfully, is not an outlaw. Neither public official not private person can lawfully detain him or her or deal with his or her property except under and in accordance with some positive authority conferred by the law”.

Gageler J confirmed that state imprisonment could ‘occur only if and to the extent permitted by statute”.30  The issues for the Court were, accordingly, distilled as to whether s198AHA of the Migration Act gives the executive a power to deprive a person of their liberty and whether this is a valid exercise of the external affairs power under s 51(29).  The 6:1 majority answered both questions affirmatively.  While the decision confirmed that a law permitting the detention of a person for third country processing is valid under the Australian Constitution, the Court did not judge the compliance of this law with international law contrary to the spirit of Teoh.

The decision of the High Court in Plaintiff M68 demonstrates Australia’s essentially parliamentary and administrative approach to the protection of human rights and freedoms. The common law right not to be detained arbitrarily is of ancient lineage from at least the time of the Magna Carta in 1215. But, in the absence of a Bill of Rights or constitutional protections, Parliament can authorize detention by executive Government so long as that detention is not punitive (an exclusive judicial power) and the duration of that detention is reasonably necessary and capable of objective determination by a court.

The Plaintiff M68 decision confirms that the key characteristic of Australia’s approach to human rights is that Parliament has almost unlimited powers to authorize governments to act inconsistently with the fundamental freedoms recognized by common law and treaty. Gageler J, as part of the majority of the Court, agreed that the writ of habeas corpus, enacted by the Habeas Corpus Act 1640, has come to play a ’structural role in limiting executive power’. But at no time did he, or his fellow judges, consider the international obligations to asylum seekers under the Convention on the rights of the Child or the ICCPR. 

In light of this disconnect between Australian law and its international obligations, we might consider the role of the United Nations’ human rights monitoring regime under the Universal Periodic Review.



Universal Periodic Review



The Universal Periodic Review (UPR) by the Human Rights Council, provides a flawed but maturing means of assessing compliance by States with their human rights obligations.  The UPR is a voluntary peer to peer review of a member State’s implementation of human rights over the previous four years, creating a record against which progress can be monitored. The process also allows States to express their concerns about specific breaches of human rights of individual states, providing an opportunity for international exposure of systemic failures and for diplomatic and political persuasion to achieve improvements.



Australia first appeared before the Working Group on the UPR process in 2011 when 53 countries made 145 recommendations calling on Australia to improve its treatment of asylum seekers and Aboriginal and Torres Strait Islander peoples, and raising concerns about multiculturalism and racism. Australia accepted over 90% of the recommendations in full or in part. Australia also made a number of voluntary commitments including funding for the Asia Pacific Forum of National Human Rights Institutions, establishment of a full time Race Discrimination Commissioner and a process for reviewing Australia’s reservations to human rights treaties.  Following this first cycle of the UPR, Australia developed a Baseline Study on Human Rights and began a consultation to develop a National Human Rights Action plan (NAP). The final version of the NAP was released on 10 December 2012 and served as the interim report on implementation of the UPR to the Human Rights Council. Australia’s largely positive response to the UPR process was subsequently negated when the Government changed and the new Attorney General indicated that the NAP was no longer government policy. No alternative policy approach has subsequently been adopted.

Australia’s appearance before the second cycle of the UPR in November 2015 provided the first opportunity to benchmark Australia’s human rights compliance against the recommendations made 4 years earlier.  It is not possible to be precise when calculating the extent to which Australia complied with the recommendations it had accepted in 2011 as the UPR recommendations were often vague and compliance is difficult to assess. It is, nonetheless, clear that fewer than 10% of the recommendations had been complied with fully. Rather than challenging this failure directly, 104 States used the second cycle to make a further 290 recommendations, repeating many of the concerns they had raised in the first cycle. About 20% of recommendations related to Australia’s asylum seeker policies, especially offshore processing. 17% of recommendations urged ratification of OPCAT and other human rights treaties and 15% concerned the rights of Aboriginal and Torres Strait Islanders.  Again, Australia accepted some recommendations and made some important voluntary commitments. It agreed to a referendum on Constitutional recognition of Indigenous peoples and to increased funding for family violence and the Syrian humanitarian crisis. Advocacy for abolition of the death penalty was to be strengthened and the rights of older persons promoted. The Government also agreed to work cooperatively with the Australian Human Rights Commission to monitor Australia’s progress in implementing the UPR recommendations, to create a standing national mechanism for reporting on human rights to the UN and to consultations on a National Action Plan on Business and Human Rights.

It remains to be seen whether Australia’s response to the second cycle UPR will prove to any more effective than its response to the first cycle. It is notable, for example, that Australia responded to the second cycle by asserting, without analysis or evidence, that its laws and policies currently comply with about half the recommendations. It is, however, encouraging that the Government has committed to annual monitoring of its human rights compliance and to greater engagement with civil society and the AHRC.



Australian Human Rights Commission



Finally we come to the role of the AHRC as part of the essentially administrative approach to human rights in Australia. The Commission has a statutory mandate to, in effect, call to account the government and private sector for compliance with anti-discrimination laws and human rights treaty obligations. As President I am responsible for dealing with 23,000 inquiries and complaints a year. Of those formal complaints, we conciliate or otherwise resolve about 73%. Through this process, many thousands of Australians have free and relatively speedy access to justice.



A key part of our role is public advocacy and we have long called for a Bill of Rights to be enacted, broadly along the lines of the NZ Act.



The Australian Human Rights Commission is undertaking a project identifying rights-based approaches to addressing flight by sea towards Australia.



These strategies focus on enhancing cooperation on refugee protection issues amongst states in the Asia-Pacific region. New thinking aims to improve protection and support for refugees and asylum seekers but in a more systemic and strategic way, so as to achieve sustainable improvements in protection across the region. Strategies could include: diplomatic initiatives (e.g. engaging with new and established resettlement countries, promoting positive examples within Asia, establishing a specialist diplomatic position for migration-related issues), capacity-building projects (e.g. providing training for government officials, fostering conditions for safe and dignified voluntary return) and cooperative arrangements (e.g. enhancing the strategic use of resettlement, improving cooperation on search and rescue).



Conclusions

In conclusion, I return to the special impact on New Zealand citizens of the 501 visa cancellations and immigration detention subject to deportation. The cancelations, without reference to core human rights principles, demonstrate the differing approaches to human rights protection in Australia. To ignore this widening gulf is unwise and potentially damaging to our relations, for we no longer speak the same language in respect of indigenous rights, immigration policies and counter-terrorism measures. Such a ‘disconnect’ between the ways we can work together jeopardises the leadership opportunities both countries have to promote the rule of law with our neighbours in the Asia Pacific region.

The NZ Bill of the Rights Act is acknowledged as having a positive and significant impact on statutory interpretation and protection of human rights. Australia should actively reconsider the adoption of a similar suite of rights and freedoms to ensure that the rule of law is protected by the courts and respected by governments.  I suggest that many Australian laws would not withstand legal scrutiny by the courts were they to have a form of Bill of Rights as benchmark. In the absence of a human rights perspective, Australia continues to drift toward isolation from the fundamental principles of law that out two countries have shared for so many decade.

Thank you.

1.  Sir Geoffrey Palmer QC, ‘The Bill of Rights after twenty-one years: the New Zealand constitutional caravan moves on?’ (2013) 11 New Zealand Journal of Public and International Law 257, 260.
2.  Sir Geoffrey Palmer QC, ‘The Bill of Rights after twenty-one years: the New Zealand constitutional caravan moves on?’ (2013) 11 New Zealand Journal of Public and International Law 257, 261.
3.  Sir Geoffrey Palmer QC, ‘The Bill of Rights after twenty-one years: the New Zealand constitutional caravan moves on?’ (2013) 11 New Zealand Journal of Public and International Law 257, 269.
4.  Ministerial Direction No 65 – Direction under Migration Act 1958 s 499, 13.2.b (23 December 2014).
5.  The primary considerations for decisions to cancel a non-citizen’s visa in Direction 65 (23 December 2014) are: Protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; Expectations of the Australian community. Part A.9. The primary considerations for decisions to cancel a non-citizen’s visa in Direction 55 (24 July 2012) were: Protection of the Australian community from criminal or other serious conduct; the strength, duration and nature of the person’s ties to Australia, the best interests of minor children in Australia.
6.  Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates, Parliament of Australia, Canberra, 8 February 2016, 65, 67 (Ms Peta Dunn, First Assistant Secretary, Community Protection). More specific statistics were taken as questions on notice, to be made available on 8 March 2016 following the delivery of this speech.
7.  As at 29 February 2016 549 people were held in immigration detention as a result of a visa cancellation.  Department of Immigration and Border Protection and Australian Border Force, Immigration Detention and Community Statistics Summary (29 February 2016), 7.
8.   Immigration and Border Protection Portfolio, Question Taken on Notice SE15/022, Supplementary Budget Estimates Hearing, 19 October 2015; Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates, Parliament of Australia, Canberra, 8 February 2016, 65, 67 (Mr Michael Outram, Deputy Commissioner, Operations).
9.   Department of Immigration and Border Protection and Australian Border Force, Immigration Detention and Community Statistics Summary (29 February 2016),11.
10.  Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Estimates, Parliament of Australia, Canberra, 8 February 2016, 60 (Mr Roman Quadvlieg Commissioner, Australian Border Force).
11.   Kim Griggs, ‘The Ditch between Australia and New Zealand widens as deportations climb’, ABC News (14 October 2015). At http://www.abc.net.au/news/2015-10-13/deportations-from-australia-to-ne….
12.   Lisa Visentin, ‘From juvie to supermax to despair: The tragic death of Junior Togatuki’, Sydney Morning Herald (online) 27 September 2015. At http://www.smh.com.au/interactive/2015/junior-togatuki/.
13.   Sylvia Varnham O’Regan ‘Kiwi mother fighting deportation after living in Australia for 37 years’, SBS News (30 September 2015). At http://www.sbs.com.au/news/article/2015/09/30/kiwi-mother-fighting-depo….
14.  ‘Farhad Jabar and associates, Syrian refugee resettlement, deportees in Brisbane hotel, New Zealand deportation’, 4BC Ray Hadley, 8 October 2015, (Minister Peter Dutton). At http://www.minister.border.gov.au/peterdutton/2015/Pages/ray-hadley-081….
15.   ILO Constitution 1919, article 19(6). This provision has since been amended: see Article 19 (7).
16.   Kenneth Bailey, ‘Australia and the International Labour Conventions’ 54 International Labour Review 285, 288 (1946), 290.
17.   Kenneth Bailey, ‘Australia and the International Labour Conventions’ 54 International Labour Review 285, 288 (1946), 290.
18.   W.M. Hughes, Policies and Potentates (1950) quoted in Starke, ‘Australia and the International Protection of Human Rights’ in Ryan, KW, (ed) International Law in Australia (1984), 140.
19.   See Annemarie Devereux, Australia and the Birth of the International Bill of Rights 1946-1966 (2005) 180-88.
20.   Starke, ‘Australia and the International Protection of Human Rights’ in Ryan, KW, (ed) International Law in Australia (1984).
21.   Dominique FJJ De Stoop, “Australia’s Approach to International Treaties on Human Rights” [1970-1973] Australian Yearbook of International Law 27, 28.
22.   Optional Protocol to the ICCPR. Australia acceded in 1992.
23.   Article 14 (Accession 1993).
24.   Optional Protocol (2008).
25.   Optional Protocol (2009).
26.    Toonen v Australia (1994) Communication No 488/1992, UN Doc CCPR/ C/50/D/488/1992.
27.   Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, per Mason and Deane JJ, [34].
28.   Al Kateb v Godwin & Ors (2004) 219 CLR 562 at 577 [19].
29.   [146]
30.   [156]