Inside Story

Uptight and uncomfortable

How can we improve Australia’s uneasy engagement with the global human rights system?

Renée Jeffery 22 November 2021 3192 words

Generic statements: foreign affairs minister Marise Payne addresses the Human Rights Council in February 2019 during Australia’s term on the Geneva-based UN body. Salvatore Di Nolfe/EPA

Human rights occupy a curiously uncomfortable place in Australian foreign policy. Like liberal democracies the world over, Australia’s foreign policy is built on principles of freedom, equality, respect for democratic values, and the rule of law. As former attorney-general George Brandis remarked at the launch of Australia’s bid for election to a coveted seat on the United Nations Human Rights Council, “commitment to human rights is essential to the very nature of what it means to be an Australian.” Human rights, he went on to say, “are integral to what we Australians regard as our sense of nationhood.”

In one sense, this view has underpinned a foreign policy that is overtly committed to advancing human rights through multilateral institutions and bilateral dialogues, and that views human rights both as intrinsic goods and as a foundation on which peace and prosperity are built. It is a foreign policy that ultimately saw Australia win election to the Human Rights Council (2018–20), engage as an enthusiastic participant in assessing the human rights performance of member states through its Universal Periodic Review, or UPR, process and emerge as a vocal advocate for a range of issues including gender equality, abolition of the death penalty, freedom of expression, and the establishment of strong national human rights institutions.

Yet Australian foreign policy is also marked by a deep reluctance to impose values on others, to take consistent and decisive action against countries that systematically violate their populations’ human rights, or to speak up against some of the world’s most egregious abuses. Preferring quiet diplomacy to overt criticism, Australia’s self-avowed pragmatism has earned it a reputation for being soft on human rights, for letting economic interests override democratic principles, and for signalling tacit acceptance of repressive regimes that routinely violate human rights. It has been accused of “losing its voice” on critical issues heard the Human Rights Council, such as the ethnic cleansing of the Rohingya population of Myanmar, where it recognised the “complex challenges” faced by Myanmar while other states openly condemned the actions as appalling human rights violations.

Partway through its tenure on the Human Rights Council, Foreign Minister Marise Payne reiterated Australia’s democratic commitment to human rights in its foreign policy: “Democracy, the rule of law, individual freedom and the right to all to dignity and respect — these values have guided Australians for generations. And these are the values which Australia as sought to promote as a member of the UN Human Rights Council.”

The response from much of the human rights community, including Human Rights Watch, was not exactly complimentary. As its Australian director, Elaine Pearson, argued, “Australia should treat its membership in the UN Human Rights Council as both an opportunity and a responsibility to be a leader in defending human rights abroad and at home… Promoting human rights values includes publicly raising issues with foreign leaders, not just making generic statements of concern in Geneva.”

Yet, as Australia’s term was coming to a close, it was to generic statements that Payne turned once again, highlighting the “gravity of the challenges posed to the international human rights system” and raising concerns over the treatment of minorities in Xinjiang, as well as human rights violations in North Korea or Myanmar’s Rakhine State, and national security laws in Hong Kong, Venezuela, Syria, and Yemen. Notably, these situations were all posed as issues still in need of redress, presumably by the new incoming members of the Human Rights Council. Her comments also came as Australia was facing significant criticisms for its own human rights record.

Australia’s most recent UPR in 2021 provided a decidedly mixed assessment of its human rights performance. On the positive side, the Human Rights Council working group welcomed “progress made in the realisation of human rights” in Australia since its 2015 review, highlighting its ratification of the Optional Protocol on the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, legalisation of same-sex marriage in 2017 and, more recently, the development of the National Agreement on Closing the Gap.

More critically, however, the UPR also raised concerns over Australia’s treatment of refugees and asylum seekers, First Nations peoples, and children. Among its key recommendations were: ending the mandatory detention and offshore processing of asylum seekers to meet Australia’s obligations under the 1951 Refugee Convention; raising the minimum age of criminal responsibility from ten to at least fourteen, in line with the Convention on the Rights of the Child; and promoting the rights of Indigenous people, reducing discrimination and inequality, and taking measures to address the high rate of incarceration among First Nations people.

In response, the Australian government accepted many of the working group’s recommendations “to reduce the overrepresentation of First Nations people in the criminal justice system” but roundly rejected calls to end mandatory detention of asylum seekers and to prohibit the detention of refugee and asylum seeker children. It noted that the age of criminal responsibility is an issue on which the states must also have a say, referring to Australia’s federal political structure to deflect and defer the matter. It also rejected recommendations for the ratification of several international human rights instruments, including the International Convention on the Rights of Migrant Workers and their Families, the International Convention on the Protection of All Persons from Enforced Disappearance, and the Optional Protocol on the International Covenant on Economic, Social, and Cultural Rights. These recommendations had previously been made and rejected during the 2015 UPR process.

Despite its active commitment to monitoring other states’ human rights practices through multilateral institutions, Australia has been reluctant to implement recommendations made by those same institutions concerning its own performance. After its first UPR in 2011, the Australian Human Rights Commission reported that although the Australian government accepted the vast majority of recommendations issued, less than 10 per cent of them were actually implemented in the required timeframe. With a similar response to its second UPR in 2015, the UN Human Rights Committee castigated Australia for its “chronic non-compliance” with the committee’s recommendations and criticised its habit of picking and choosing which international human rights laws and treaties to follow. The committee’s vice-chair, Yuval Shany remarked in this regard that Australia’s behaviour is “incredible for a country that claims to have a leading role in global human rights.”

What explains Australia’s at times contradictory, often hypocritical, and perennially uncomfortable engagement with the global human rights regime? Why is Australia so uptight and uncomfortable about human rights? And what can Australia do to improve its international human rights reputation and relationships?

Uptight and uncomfortable

In 1996, Prime Minister John Howard revealed his wish for Australians to be comfortable and relaxed about three things: their history, their present and their future. Two decades on from his year 2000 deadline, this continues not to be the case. Where human rights are concerned, Australia is deeply uncomfortable about all three. And that is as it should be. Australia should not be relaxed or comfortable about its past, present or, given its current trajectory, future human rights performance.

This is not to suggest that Australia has not made many positive contributions to the global human rights regime or that its human rights record has been consistently abominable. It is also not to overlook the incredible contributions that many well-respected Australians have made to the development and management of the international human rights regime. But it is to suggest that past and present injustices that Australia fails to acknowledge and fails to address shape its engagement with the international human rights regime and are likely to continue doing so for the foreseeable future. Those injustices have tended to centre on issues of immigration, whether by migrant workers or asylum seekers, and the treatment of Australia’s Indigenous population. In this sense, Australia’s most recent UPR simply echoes concerns about its human rights practices that have been raised in the international community and at home since the middle of the nineteenth century.

The reason for this sense of discomfort can be explained, at least in part, in the overriding dominance of two key concerns that underpin Australia’s understanding of human rights, its engagement with other members of the international community and with the international human rights regime: unity and prosperity. These concerns emerged in the settler colonial politics and foreign affairs of the 1830s and, although they have at times worked in concert and at others sat in tension with one another, they continue to mark Australia’s foreign policy and engagement with human rights.

The past

Two among many similar issues demonstrate how these dual concerns helped lay the foundations of Australia’s engagement with human rights in its foreign affairs: the so-called “Chinese question,” centred on the influx of Chinese immigrants to try their luck on the Australian goldfields and, later, make inroads into trades like cabinetmaking; and the importation of South Sea islanders to work as indentured labourers, primarily in Queensland’s sugar industry. In both cases, basic early ideas of human rights, which centred on liberty, freedom of movement, free will and benevolence (freedom from harm) came into direct contention with the pursuit of national unity and prosperity. In both cases arguments in favour of immigration restriction centred on fears that increased non-white immigration would be detrimental to white wages and businesses, as well as the idea that social and cultural unity required racial homogeneity.

In the Chinese case, supporters of immigration restriction who cast aside arguments defending the human rights of Chinese migrants found themselves labelled as “enemies of human rights.” Yet, even then, tensions between human rights and other priorities remained. As an article in the Sydney Morning Herald on 9 October 1860 explained:

[W]e believe the colony is… outraging humanity by its treatment of this race; but we see far less injustice in telling them that they shall not dig for gold… We believe there are sacred rights which belong to human beings, among them is the right to go anywhere in search of honest subsistence… [W]e wish there were not a Chinese in the colony… But in our opinion the defence of the rights of a persecuted race is the sacred duty of every enlightened man, and especially of every advocate of liberty.

In short, while even some supporters of human rights were reluctant to extend those rights to Chinese immigrants, the dominant position in the Australian colonies maintained that economic and social interests overrode the universal application of human rights.

Where the importation of South Sea islander labourers was concerned, arguments on both sides of the debate afforded economic interests a prominent place. While critics of the practice argued that the establishment of a cheap labour force would have a detrimental effect on white wages and employment opportunities, supporters maintained that cheap labour was necessary to guarantee the viability of the burgeoning sugar industry. Human rights also formed part of the debate. Replicating arguments used by British abolitionists to campaign against unjust labour practices after the formal abolition of slavery, local and international critics routinely cast the Pacific Islands labour trade as a form of “incipient slavery” because of the prevalence of kidnapping and deception among recruiters, physical abuse suffered by recruited islanders, and disregard for their right to liberty.

The right to liberty formed a key part of the judgement tendered by Justice Lutwyche in one of the few blackbirding cases (R v Coath) to be heard in a court of law. The case centred on the actions of John Coath, captain of the recruitment ship Jason, which was sent out from Maryborough to procure workers for the Maryborough Sugar Company. As an article published in both the Sydney Morning Herald and the Brisbane Courier on 15 March 1871 detailed, several Presbyterian missionaries stationed in the New Hebrides had accused Coath of engaging in slavery, taking young men and boys by force and, on at least one occasion, purchasing them from their chief.

Coath was duly charged with kidnapping and assault. His defence rested on the claim that he had not kidnapped the trafficked men, but had “saved” them by taking them from “islands inhabited by a savage and barbarous people” and bringing them “within the protection of English law.” Justice Lutwyche did not agree. “[W]hether they are civilized or not matters not,” Lutwyche wrote, in a judgement described as a “singular precedent,” “they have a right to liberty, which is inherent in all human beings.”

Yet for much of the nineteenth century the idea that Pacific islanders held the same universal human rights as the white settler population was swept aside in favour of arguments supporting the practice as a means of ensuring the cheap labour that was necessary to guarantee the prosperity of the sugar industry. At the turn of the century, as a fall in the sugar price and the movement toward federation saw the force of this argument begin to wane, it was overtaken, not by an ascendant notion of human rights but an overriding emphasis on social unity.

This idea was articulated most prominently by prime minister Edmund Barton in debate over the 1901 Immigration Restriction Bill, the centrepiece of the White Australia policy, in which he stated, “I do not think either that the doctrine of equality of man was really ever intended to include racial equality. There is no racial equality. There is basic inequality.”

This argument stood alongside perennial concerns over the economic impact of a potential influx of cheap Asian labour, and claims, such as that articulated by future prime minister Alfred Deakin, that “Unity of race is an absolute essential to the unity of Australia.”

This understanding of human rights did not only apply to would-be immigrants but was felt most acutely by Australia’s First Nations, who suffered well-documented violence, dispossession, discrimination and dehumanisation at the hands of the white settler community, actions for which the settler population faced criticism from as early as the 1830s. The ramifications of those abuses continue to be felt by successive generations of Indigenous Australians and, as its most recent UPR demonstrates, reverberate in Australia’s engagement with the contemporary international human rights regime. Along with Australia’s past immigration policies and treatment of South Sea islanders, these actions form part of a past that, inadequately acknowledged and redressed, limits Australia’s ability to lead on matters of human rights.

The present

Abundant evidence shows that the pursuit of unity and prosperity still shapes Australia’s engagement with the international human rights regime. One obvious place we find it is in the federal government’s 2017 foreign policy white paper. Across a range of issues, the white paper mentions prosperity a staggering eighty-seven times. While prosperity is often viewed as an end in itself, it is also coupled with other foreign policy objectives, including security, peace and human rights. Human rights, we are told, “underpin peace and prosperity.” While the paper professes Australia’s commitment to “advancing human rights globally” and acknowledges, again in the most generic of terms, that “[m]en, women and children have the right to fundamental freedoms and to live their lives with dignity,” the value proposition is posed in terms of stability, security and prosperity.

Unity is viewed through a slightly different lens than it has been in the past. The term itself has been replaced by the idea of social cohesion and coupled with multiculturalism in place of earlier views on race now deemed unacceptable. What has not changed is its close relationship with prosperity. The white paper tells us that “[b]y generating more and better paying jobs, a strong and flexible economy reinforces the social cohesion and resilience of Australian society.” It also continues to inform Australia’s approach to issues of migration and criticisms of its treatment of asylum seekers: “Without a well-managed migration program, the cohesion of our society could be damaged and community support for our humanitarian program would be unsustainable.” This argument was replicated in Australia’s response to the 2020 UPR, in which it rejected recommendations to bring its asylum seeker policies in line with its obligations under the Refugee Convention.

The future

So, what of the future? What can Australia do to improve its international human rights reputation and relationships?

First, Australia needs to confront its past. At the very least, this should entail making meaningful, considered and concerted efforts to acknowledge and redress the abuses and atrocities committed against South Sea islander and Aboriginal populations, under the direction of affected communities themselves. Otherwise, it will be very difficult for Australia to be a credible leader in the international human rights regime. This is not to say that only those countries that boast unblemished human rights records can comment on rights violations. For one thing, such countries do not exist. Rather, it is to point out that when a country like Australia professes to take on a leadership role in the global human rights regime while doggedly refusing to address the egregious injustices of its past or present, it undermines its own credibility.

Second, Australia must stop picking and choosing which human rights agreements, treaties and recommendations to uphold. As Human Rights Watch argues, it must deal with abuses raised in its most recent UPR, especially those related to its treatment of refugees, children and Indigenous people. Instead of “doubling down on policies that have caused immense harm to asylum seekers and have been repeatedly condemned by UN officials and other governments,” Pearson argues, Australia must uphold its responsibilities towards these people. It must also make serious efforts to reduce the rate of incarceration among Aboriginal and Torres Strait Islander people, and stop hiding behind federalism to avoid assuming leadership on raising the age of criminal responsibility across all Australian jurisdictions. It should also stop dragging its feet on the ratification of international human rights treaties and agreements.

Third, Australia needs to take a long, hard look at the core underlying principles that direct its engagement with the international human rights regime. Is prosperity really its core national interest? And if it is, should it be? Perhaps more pointedly, is Australia’s perpetual pursuit of prosperity simply a way of justifying or sanitising greed? And if it is, how well does that sit with its professed commitment to universal human rights?

What do we mean by social cohesion? Does it signify a coming together or simply justify exclusion, marginalisation, the stifling of debate and the quashing of dissent? And does social cohesion require the sorts of policies it is said to justify? Would the humane treatment of asylum seekers in accordance with Australia’s international obligations really be damaging to social cohesion? And is that a society we actually want to be part of?

In short, improving Australia’s engagement with the international human rights regime means, first and foremost, taking a hard look at ourselves, at our past and our present, at who we are, what we value, and what sort of society we want to be. •

This is an extended version of a talk delivered on 22 November at a symposium to celebrate the fiftieth anniversary of the Academy of the Social Sciences in Australia.