Site navigation

Change font size: SmallerLargerReload

About the Australian Human Rights Commission navigation

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:

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:

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:

Canada underwent review in February this year. The final report recommended that Canada take actions such as:

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 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:

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.