tag:theconversation.com,2011:/columns/sarah-joseph-4912Human writes – The Conversation2016-06-02T04:11:51Ztag:theconversation.com,2011:article/603752016-06-02T04:11:51Z2016-06-02T04:11:51ZAcademic freedom and the suspension of Roz Ward<figure><img src="https://images.theconversation.com/files/124916/original/image-20160602-1943-15gcjbk.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C238%2C179&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Roz Ward.</span> <span class="attribution"><span class="source">Supplied</span></span></figcaption></figure><p>The co-founder of the now-controversial <a href="https://theconversation.com/explainer-what-is-safe-schools-coalition-55018">Safe Schools Coalition</a>, La Trobe academic Roz Ward, has been <a href="http://www.theage.com.au/victoria/university-suspends-safe-schools-cofounder-roz-ward-over-facebook-post-20160601-gp9ezu.html">suspended</a> by her university following a Facebook post in which she called the Australian flag racist, and suggested that it be replaced with the socialist red flag. </p>
<p><a href="https://newmatilda.com/2016/06/01/latrobe-suspends-safe-schools-co-founder-and-academic-roz-ward-for-criticising-racist-australian-flag/">New Matilda</a> has reported that La Trobe University’s reasons were as follows. It claims Ward’s conduct had:</p>
<blockquote>
<p>a) … Undermined public confidence in the Safe Schools program by undermining public confidence in [her] as a researcher and as a person associated with the Safe Schools program.</p>
<p>b) … Damages the reputation of the Safe Schools program and aligns the Safe Schools program with views which have nothing to do with the program and its message and content.</p>
<p>c) … Has required members of the Victorian Government to take up their time in defending the Safe Schools program, rather than be positive advocates for the Safe Schools program.</p>
<p>d) … Has required senior staff at the University to take up their time in defending the Safe Schools program, rather than be positive advocates for the Safe Schools program or undertake other duties they have.</p>
<p>e) … drawn ([her] colleagues) into the negative publicity around Safe Schools and this has impacted on their ability to continue with their research in a safe environment.</p>
</blockquote>
<p>Therefore, the suspension is linked to the fact that Ward’s Facebook post was likely to inflame the controversy which was already surrounding the Safe Schools program. Ward’s post has certainly done so, particularly in <a href="http://www.dailytelegraph.com.au/news/opinion/miranda-devine-marxist-agenda-a-red-flag-for-not-so-safe-schools/news-story/7e1ee74bd8b682f188333828ce5e374e">News Corp outlets</a>. It also prompted <a href="http://www.theaustralian.com.au/national-affairs/education/jeff-kennett-safe-schools-funding-lost-if-roz-ward-stays/news-story/0aef42a2d0c918d5dc7450683b581f33">Jeff Kennett</a>, chairman of Beyond Blue, to threaten to withdraw Safe Schools funding unless Ward stepped down from the program. </p>
<p>La Trobe’s actions are very troubling for academics. First, Ward was expressing a legitimate political opinion in her post. People are entitled to criticise the political symbol that is the Australian flag. The “racist” tag is attached by some for the same reason that many liken Australia Day with <a href="http://www.sbs.com.au/nitv/explainer/australia-day-invasion-day-survival-day-whats-name">Invasion Day</a>. Last time I checked it was not unlawful to be a Marxist in this country. </p>
<p>The actual context for the post was that the <a href="http://www.sbs.com.au/news/article/2016/05/24/victorian-government-apology-welcomed-gay-rights-activists">rainbow flag</a> had been hoisted over the Victorian State Parliament on the day of Premier Daniel Andrews’ apologies for past laws regarding homosexuality. Ward apparently posted a picture of that flag and said: </p>
<blockquote>
<p>Now we just need to get rid of the racist Australian flag on top of state parliament and get a red one up there and my work is done. </p>
</blockquote>
<p>The last words in particular seem to denote some sort of tongue in cheek, indicating that Ward may have been disciplined over a joke.</p>
<p>Academics (and others) must be able to post such opinions without fear of retribution from their employers. Certainly, some find criticism of the Australian flag offensive, but as a society we must surely be able to tolerate such opinions. Ward is referencing debates that are far from closed. In contrast, La Trobe’s reason a) seems to punish Ward for expressing an unpopular opinion. </p>
<p>Second, the reasons apparently given to Ward link her suspension to the fact that she posted the offending comments in the midst of ongoing controversy over Safe Schools. The implication is that Ward should be “extra careful” with what she says due to that controversy. </p>
<p>La Trobe’s reason b) seems to be requiring Ward to confine her expressed opinions to issues relating to Safe Schools. After all, the offending Facebook post does not explicitly “align” Safe Schools with any point of view.</p>
<p>Reasons c) and d) discipline Ward because the renewed controversy meant that more time was expended on defence of Safe Schools by prominent defenders of the program, namely La Trobe and the Victorian government. </p>
<p>The logic in this reasoning seems to require staff to steer clear of controversy, lest the “time” of very important people in government and the University be wasted.</p>
<p>Most intriguing of all is reason e), indicating that Ward’s post has prompted a backlash against her Safe School colleagues, therefore impacting on their “ability to continue with their research in a safe environment”.</p>
<p>The Safe Schools controversy has been running for months, stoked by News Corp and some occasionally wild commentary from public figures. Senator <a href="http://www.abc.net.au/news/2016-03-16/george-christensen-links-safe-schools-program-to-paedophilia/7252476">George Christensen</a> linked the program to paedophilia. In the last week, Australian Christian Lobby head Lyle Shelton likened Safe Schools to <a href="http://www.smh.com.au/federal-politics/federal-election-2016/australian-christian-lobby-likens-gay-marriage-and-safe-schools-to-unthinkable-nazi-atrocities-20160531-gp8ff2.html">Nazi atrocities</a>.</p>
<p>Such hateful commentary is indeed likely to prompt threats and harassment of people associated with Safe Schools, presumably including Ward herself. In that environment, it seems La Trobe is saying that Ward’s post irresponsibly exposed her colleagues (and herself) to even more threats and harassment.</p>
<p>If so, Ward is essentially being told not to “poke the bear” or “inflame the situation”. Of course, such courses of action can lead to unpleasant consequences. </p>
<p>It is possible that the controversy over Ward’s Facebook post has led to unpleasant interactions for her colleagues. But if one believes (as I do) that her original post was unworthy of disciplinary action by her employer, it cannot be turned into an offence worthy of suspension by the anticipation of blatantly unreasonable reactions from others, namely those who are harassing her colleagues. That makes the mob the ruler. It is blaming the victim. </p>
<p>It is possibly ceding the ground of debate over Safe Schools, putting it forever on defence. After all, it is likely that any public comment by Ward on Safe Schools might have “inflamed” the situation.</p>
<p>It is ironic that social media, which seems to hold such promise as a tool for boosting free speech, has apparently led to <a href="http://www.smh.com.au/federal-politics/political-news/sbs-sports-reporter-scott-mcintyre-sacked-after-malcolm-turnbull-intervention-court-to-hear-20151012-gk71hd.html">greater consequences for speaking</a>. </p>
<p>Social media reveals one’s speech to more people, and provides a record of what one has said. It is a shame, however, that the greater exposure of people’s speech seems to have led to greater intolerance of what is said, rather than a greater willingness and ability to debate things that one disagrees with.</p>
<p>Universities, in particular, must not overreact to backlashes against controversial opinions. And this must be true of both “left-wing” and “right-wing” opinions. Universities must remain bastions of robust debate. In that regard, I applaud the University of Melbourne for its <a href="http://policy.unimelb.edu.au/MPF1224">explicit policy</a> on Academic Freedom of Expression. It includes the following:</p>
<blockquote>
<p>[The university] recognises also that scholars are entitled to express their ideas and opinions even when doing so may cause offence. These principles apply to all activities in which scholars express their views both inside and outside the university.</p>
</blockquote>
<p>This incident sends a chill through Australian academia. It is ironic that the safety of Ward’s colleagues is cited as a reason for her suspension. I find it difficult to believe that La Trobe academics feel “safer” because one of their colleagues has been suspended over a political opinion expressed on a Facebook post.</p><img src="https://counter.theconversation.com/content/60375/count.gif" alt="The Conversation" width="1" height="1" />
Roz Ward’s suspension by her university should send a chill through Australian academia.Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/570452016-03-31T05:15:35Z2016-03-31T05:15:35ZTony Abbott’s open contempt for international human rights law<figure><img src="https://images.theconversation.com/files/116878/original/image-20160331-28443-kxh4h1.jpg?ixlib=rb-1.1.0&rect=0%2C361%2C2686%2C2135&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">Reuters/Dinuka Liyanawatte</span></span></figcaption></figure><p>Former prime minister Tony Abbott has penned an <a href="https://quadrant.org.au/opinion/qed/2016/03/abbott-right-national-security/">essay in Quadrant</a> defending his government’s stance on national security. It betrays an extraordinarily open contempt for international human rights law.</p>
<p>Abbott starts by saying that he is proud that his government was committed to “uphold[ing] our values around the world”, then immediately repudiates “the moral posturing of the Rudd years”. Hence, he seems to quickly divorce Australian values from notions of morality. He then goes on to confirm that, as explained below.</p>
<h2>Abbott and gross human rights abuses by Sri Lanka</h2>
<p><a href="http://theconversation.com/our-prime-ministers-sri-lanka-performance-a-human-rights-disaster-20491">Notoriously</a>, Abbott was very forgiving of Sri Lanka’s human rights record when he attended the Commonwealth Heads of Government Meeting (CHOGM) in that country in 2013. </p>
<p>His stance contrasted sharply with those of the leaders of <a href="http://www.abc.net.au/news/2013-11-13/mauritius-pm-stays-away-from-chogm/5087678">Canada, India and Mauritius</a> (who all boycotted CHOGM that year due to Sri Lanka’s human rights record), and that of UK Prime Minister <a href="http://www.abc.net.au/news/2013-11-17/an-david-cameron-puts-sri-lanka-on-notice-over-war-crime-allega/5097278">David Cameron</a>, who raised the issue of war crimes while attending the meeting.</p>
<p>Sri Lanka finished a decades-long civil war with the Liberation Tigers of Tamil Eelam (the Tamil Tigers) in 2009, with tens of thousands of civilians killed in the final weeks of the conflict. Since then, Sri Lanka has faced <a href="http://nofirezone.org/">credible allegations</a> of gross war crimes at the end of that war, and the <a href="http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf">UN</a> continues to call for an independent investigation. While Sri Lanka’s new government has promised to comply, it currently seems a <a href="http://www.abc.net.au/news/2016-03-04/sri-lanka-faces-new-torture-allegations/7204056">faint prospect</a>.</p>
<p>In his Quadrant essay, Abbott defends his Sri Lanka stance. He is proud that Sri Lanka’s president at the time, Mahinda Rajapaksa:</p>
<blockquote>
<p>… was pleased that Australia didn’t join the human rights lobby against the tough but probably unavoidable actions taken to end one of the world’s most vicious civil wars. </p>
</blockquote>
<p>Rajapaksa has since lost power. It is not clear whether Sri Lanka’s current government is happy with Abbott’s craven stance at CHOGM towards its political opponent. It is clear that victims were appalled by it.</p>
<p>Abbott excused war crimes, and continues to do so, trivialising the killings of thousands of civilians as “tough actions” which were “probably unavoidable”. Presumably, Australia’s “values” for Abbott exclude support for the international law of armed conflict. </p>
<p>Abbott has topical company here, if one compares the statements of US presidential candidate Donald Trump, who recently describe the core war law treaties, the Geneva Conventions, as <a href="http://bluenationreview.com/trump-says-geneva-conventions-are-a-problem/">a “problem”</a> given their prohibition on torture.</p>
<h2>Stopping the boats</h2>
<p>Abbott’s Sri Lanka position was a means to an end, as he freely admits in his Quadrant essay. Australia needed Sri Lanka’s help in “stopping the boats”. </p>
<p>That may be so, but it is likely that many of those that were stopped with Australian help from fleeing Sri Lanka were genuine refugees fleeing persecution. After all, Sri Lanka remains accused of ongoing human rights violations, both under Rajapaksa after the civil war and under its new government, <a href="http://www.abc.net.au/news/2016-03-04/sri-lanka-faces-new-torture-allegations/7204056">including torture</a>. Hence, Australian values according to Abbott include a repudiation of the right to seek asylum from persecution.</p>
<p>Furthermore, Abbott is incautious with the truth here, in referring to the arrival of 50,000 people and 1200 drownings under the Rudd-Gillard governments as justification for Australia’s close co-operation with Sri Lanka. The vast majority of boats came from Indonesia, and the vast majority of drownings occurred on that route.</p>
<p>Abbott goes on to assert that the boat arrivals were a “national security” issue, as:</p>
<blockquote>
<p>… a country that can’t control its borders sooner or later loses control of its future. </p>
</blockquote>
<p>This is a bold assertion with no evidence. All boats that arrived in Australia were apprehended, and there is no evidence that those who have arrived by boat have threatened Australia’s national security.</p>
<p>Abbott later acknowledges the importance of Indonesia’s role in “stopping the boats”, so he admits to “a very early sign of good faith” towards its government. West Papuan asylum seekers were “quietly returned to Papua New Guinea”, which may constitute refoulement depending on the circumstances. </p>
<p>The right of non-refoulement, that is the return of a person to a place where they legitimately fear persecution, or to a country which will send them on to such a place, is the major plank of international refugee law. International refugee law is however clearly not a plank of Australia’s values, according to our former prime minister.</p>
<p>While Abbott was happy to show good faith to Indonesia in possibly refouling West Papuan activists, he makes no explicit mention of <a href="http://www.theaustralian.com.au/national-affairs/boat-turnbacks-could-disturb-bilateral-relations-indonesia-warns/news-story/657b06512f81c73682c6ad80a7db9663">Indonesia’s continued protests</a> at Australia’s insistence on returning asylum boats to its shores. </p>
<p>Abbott’s concerns over Indonesia’s sovereignty, so apparent in preventing a protest by (some other) West Papuan activists sailing from Australia to Indonesia, seem selective. So too do his concerns over sovereignty generally, given his eagerness, confirmed later in the essay, <a href="http://www.abc.net.au/news/2015-02-23/abbott-confirms-talks-sending-australian-troops-ukraine/6225876">to send Australian troops to Ukraine</a> to secure the site of the downed MH17.</p>
<p>Abbott’s open contempt for the international rule of law is perhaps matched by a cavalier attitude to Australian law. He admits that Operation Sovereign Borders was felt by “some government lawyers” to be “beyond power”. Such concerns are brushed off by the assertion that “the government simply had to stop the boats”, rather than with any assurance that the policy in fact complied with the rule of law.</p>
<h2>A refreshing candour?</h2>
<p>Perhaps Abbott should be applauded for displaying a refreshing candour regarding the true motivations of government, with his realpolitik rejection of international law. </p>
<p>Other Western governments, including Australian ones, have hypocritically proclaimed a commitment to international human rights law while effectively turning blind eyes to major human rights abuses by allies such as Israel, Egypt and Saudi Arabia. US President Barack Obama can condemn torture but still authorise unprecedented numbers of drone strikes with little transparency and little likelihood of compliance with international law. </p>
<p>And successive Australian governments tolerated crimes against humanity by Indonesia in Timor Leste. Do words matter if betrayed by deeds? At least Abbott can perhaps be said to be doing what he said and what he meant (to paraphrase his Quadrant essay).</p>
<p>Except he isn’t. <a href="https://newmatilda.com/2016/03/28/eight-revelations-from-tony-abbotts-openly-pro-war-crimes-quadrant-essay/">Confusingly</a>, in relation to Russia’s role on MH17, Abbott says that:</p>
<blockquote>
<p>… the trampling of justice and decency in the pursuit of national aggrandisement, and reckless indifference to human life should have no place in our world. </p>
</blockquote>
<p>In relation to Australia’s role combating Islamic State, he says that:</p>
<blockquote>
<p>We can never abandon civilised values. </p>
</blockquote>
<p>In relation to the rise of China, he says that all countries in our region have a “stake in rules-based global order”. Yet, in relation to Sri Lanka and possible refoulement of West Papuan activists, Abbott brazenly abandoned “civilised values”, endorsed the “trampling of justice and decency”, and jettisoned some of the most fundamental rules of the current global order.</p>
<p>Furthermore, words do matter. Certainly, the international rule of law, including international human rights law, is under constant strain from the self-interested realpolitik of probably all countries (to different extents). And yet it survives as some sort of constraint on state behaviour. </p>
<p>Seven years after the end of its civil war, Sri Lanka remains under significant pressure to provide redress, and <a href="http://www.independent.co.uk/news/world/asia/sri-lankas-former-leader-mahinda-rajapaksa-is-no-longer-untouchable-a6862086.html">a judicial net within Sri Lanka</a> may now be closing in on the previously “untouchable” Rajapaksa.</p>
<p>Abbott’s open and proud rejection of international human rights law is a manifestation of a dangerous phenomenon, apparently shared by Trump. While governments may often fail to stick to the values that they say they uphold, the international rule of law has little hope at all if those values are simply discarded altogether.</p><img src="https://counter.theconversation.com/content/57045/count.gif" alt="The Conversation" width="1" height="1" />
Former prime minister Tony Abbott has penned an essay in Quadrant defending his government’s stance on national security. It betrays an extraordinarily open contempt for international human rights law…Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/551202016-02-21T22:45:52Z2016-02-21T22:45:52ZAustralia found to have breached the human rights of David Hicks<figure><img src="https://images.theconversation.com/files/112256/original/image-20160221-25871-1mzn6wl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">AAP/Nikki Short</span></span></figcaption></figure><p>The UN Human Rights Committee (UNHRC) released its reasons in <em><a href="http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/115/D/2005/2010&Lang=en">Hicks v Australia</a></em> on February 16, 2016, in which it found that Australia had breached David Hicks’ right to be free from arbitrary detention. While the decision represents a measure of vindication for Hicks in the face of ongoing hostile disdain from the Australian government, it was perhaps disappointing in its narrowness.</p>
<p>The UNHRC supervises and monitors implementation of the International Covenant on Civil and Political Rights (“<a href="http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">ICCPR</a>”), a global treaty that binds three-quarters of the world’s countries. </p>
<p>David Hicks’ complaint was submitted on September 10, 2010. The five-plus-year gap between submission and decision is unfortunate, but reflects the complexity of the case, as evinced by the original <a href="http://thejusticecampaign.org/wordpress/wp-content/uploads/2011/06/UN-Communication.pdf">100+ page submission</a> from Hicks’ counsel. </p>
<p>However, the UNHRC did not address these complexities appropriately. While Hicks was successful in one of his claims regarding arbitrary detention, prohibited under Article 9(1) of the ICCPR, his many other claims deserved more thorough consideration than they received.</p>
<h2>The basic facts</h2>
<p>Hicks’ story is recounted briefly here. He was apprehended in Afghanistan in November 2001, very soon after the invasion of that country by the US in the wake of the September 11 terrorist attacks, and was suspected of fighting on behalf of al-Qaeda, the Taliban, or both.</p>
<p>He was detained at the facility in Guantanamo Bay from January 2002 until March 2007. He was held under US presidential order, and was not charged with any crime until June 10, 2004. His trial was however delayed as US arrangements for military justice at Guantanamo Bay were repeatedly found to be unconstitutional by US courts. </p>
<p>During that time, Hicks claims that he was subjected to torture and ill treatment. Hicks was charged for a final time in February 2007. In March, he pleaded guilty to the crime of “providing material support for terrorism”, and was sentenced to seven years imprisonment by a US Military Commission. </p>
<p>Taking into account time served, he had nine more months of his sentence to serve. In May 2007, he was transferred from Guantanamo Bay to Australia, where he served out the final seven months of his sentence in Adelaide pursuant to a Prisoner Transfer Agreement. He was released on December 29, 2007, and was then subjected to a <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP0708/08rp28#_Toc197240508">control order</a> imposed by the Federal Magistrates Court, which expired in December 2008. That control order imposed various restrictions on his movements, those he could associate with, and his freedom of speech.</p>
<p>The violation of Article 9(1) arose with regard to the period of Hicks’ sentence served in Australia between May and December 2007. He had submitted that other violations had taken place, in respect of Australia’s complicity in his entire period of detention in Guantanamo Bay, and his treatment while there. Those claims failed. He also claimed breaches of the ICCPR in respect of the control order, which also failed.</p>
<h2>The role of the United States</h2>
<p>Throughout most of his period of incarceration, Hicks was detained by the US rather than Australia. Furthermore, it is clear that the US breached Hicks’s human rights in a variety of ways. The US itself has since <a href="http://www.smh.com.au/national/david-hicks-terrorism-charges-us-admits-he-is-innocent-20150122-12vzke.html">voided his conviction</a> on the grounds that it was based on retrospective law, a clear breach of Article 15 of the ICCPR. </p>
<p>As a prisoner seized during an international armed conflict, he was not afforded any of the protections that he was entitled to under the international law of armed conflict. For example, his potential status as a prisoner of war, or not, was never determined by a competent tribunal as required by the <a href="https://www.icrc.org/ihl/WebART/375-590008?OpenDocument">Geneva Conventions</a>. His substantive and procedural rights to a fair trial, as well as freedom from arbitrary detention, were breached, and there is strong evidence that he was subjected to torture or at least cruel inhuman and degrading treatment.</p>
<p>The US is a party to the ICCPR. However, it is not a party to the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCCPR1.aspx">Optional Protocol to the ICCPR</a>, which enables individual complaints against states. Hence, it is not possible for Hicks to submit a complaint to the UNHRC about his treatment by the US.</p>
<h2>Aiding and assisting</h2>
<p>Counsel for Hicks claimed that Australia effectively aided and assisted the US in its mistreatment of Hicks in a moral, political and material sense. Certainly, the Howard government <a href="http://www.smh.com.au/news/opinion/no-justice-as-hicks-thrown-to-the-wolves/2005/08/04/1123125851922.html">publicly supported the propriety of the Guantanamo Bay project</a>, despite its obvious departure from international law. It was also a <a href="http://www.theage.com.au/news/opinion/why-he-cant-return/2007/01/06/1167777323596.html">critic of Hicks</a> throughout (and since) his incarceration, and made it clear it did not want him to come home as there was no crime Australia could charge him with under Australian law. </p>
<p>The UNHRC dealt with the aiding and assisting argument poorly. It conflated the issue with a completely different argument about jurisdiction. Under long-standing ICCPR case law, it is possible for one country (Country X) to be held to breach the ICCPR even though a person is in another country (Country Y). This can occur if the person can somehow be deemed to be under the “power or effective control” of Country X. </p>
<p>The US’ responsibility for the treatment of detainees at Guantanamo Bay is a good example, given that the camp is located in Cuba. In focusing on jurisdiction, the UNHRC found that Hicks was not in Australia’s “power or effective control”, despite conceding that Australia “had some influence over the way” the US treated Hicks.</p>
<p>However, the “aiding and assisting” argument is different. Counsel was effectively arguing that Australia made an important contribution to the breaches by the US, such that it should be held jointly responsible for Hicks’ treatment at Guantanamo Bay. </p>
<p>Such an argument has not, to my knowledge, been addressed by the UNHRC before. Unfortunately, it was not actually addressed here. It may be that Australia’s conduct did not amount to “aiding and assisting”, or that “aiding and assisting” does not actually attract sanction under the ICCPR if a person is nevertheless outside a state’s effective control. However, the UNHRC seemed to simply ignore the argument, and focused on an alternative argument that had not in fact been made. </p>
<h2>No duty to rescue</h2>
<p>Interestingly, on the point of jurisdiction, the UNHRC found that Australia “was in a position to take positive measures to ensure that [Hicks] was treated in a manner consonant with the” ICCPR. </p>
<p>That is, it <a href="http://www.theguardian.com/uk-news/2015/oct/30/before-shaker-aamer-others-who-made-it-back-to-britain-from-guantanamo-bay">found that</a> Australia could have made diplomatic overtures to the US to secure the “early” return home of David Hicks, just as <a href="http://www.theguardian.com/uk-news/2015/oct/30/before-shaker-aamer-others-who-made-it-back-to-britain-from-guantanamo-bay">the UK had managed to do</a> with many of its nationals in Guantanamo Bay, possibly averting any trial, and curtailing instances of ill treatment and arbitrary detention.</p>
<p>Sir Nigel Rodley, in a separate opinion, also noted that Hicks was “ill-protected by [the Australian] government”.</p>
<p>Nevertheless, Australia’s failure to assist Hicks in this way did not bring him within its “jurisdiction” for the purposes of the ICCPR, so no violation arose from this conduct. This ruling effectively means that there is no duty upon states to take positive measures to stop human rights abuses of their own nationals by another state on that state’s territory. </p>
<p>Australia was and is apparently free under the ICCPR to neglect the rights of its own citizens if their rights are being violated abroad.</p>
<h2>No duty to investigate torture abroad</h2>
<p>Counsel had argued that Hicks’ allegations of ill treatment by the US had never been properly investigated, so it was incumbent upon Australia to do so. The UNHRC did not accept this argument, and no such violation was found.</p>
<p>A state’s duties regarding the prohibition on torture and ill treatment are quite strict. It is required to properly investigate credible allegations of such treatment. </p>
<p>However, the Hicks decision indicates that states are not required to investigate such allegations when the alleged incidents take place in another state at the hand of that other state’s agents. Again, such a duty was said to extend outside a state’s jurisdiction. There are certainly logistical limitations to a state’s ability to investigate torture allegations in such circumstances.</p>
<h2>The control orders</h2>
<p>The complaints regarding the control orders were deemed to be inadmissible. Counsel for Hicks had claimed that the imposition of the control order had breached Hicks’ freedom of movement, his freedom of expression, his freedom of association, and his right to privacy. </p>
<p>The UNHRC found that the complaints effectively related to the evaluation of facts and evidence by the magistrate who granted the control orders – the UNHRC rarely “overrules” such decisions unless there is clear “arbitrariness or denial of justice”.</p>
<p>The UNHRC focused narrowly on the actual control order proceedings. It did not zoom out and focus on the ICCPR compatibility of the broader control order regime, despite extensive arguments in this respect from Hicks’ counsel. </p>
<p>Control orders are, after all, restrictions on freedom that are imposed on people on the basis of no conviction and on a civil rather than criminal standard of proof. There are arguments that such a regime might be totally incompatible with human rights. Alternatively, perhaps Australia’s control order regime is perfectly compliant with the ICCPR. </p>
<p>The fact is that the UNHRC did not consider the issue, as instead it focused narrowly on the conduct of the control order proceedings rather than their substance. Hence, we are no wiser about the compatibility of the Australian regime, though the case certainly indicates that control order regimes are not per se violative of the ICCPR.</p>
<h2>The violation: detention in Australia</h2>
<p>Hicks served seven months of his sentence in Adelaide pursuant to a Prisoner Transfer Agreement between Australia and the US. A violation of Article 9(1) was found by the UNHRC majority by Australia in respect of that period of detention.</p>
<p>The UNHRC majority found that “there was abundant information in the public domain” which cast extreme doubt on the fairness of the relevant US trial proceedings. Furthermore, Australian authorities, due to numerous visits with Hicks, “was in a good position to know the conditions of [Hicks’] trial”. </p>
<p>Therefore, it should have been clear to Australia that the sentence arose from “a flagrant denial of justice”, and should therefore not be enforced. </p>
<p>In particular, the UNHRC majority noted that Australia had made no attempt to negotiate a transfer deal which was compatible with the ICCPR, even though it “exercised a significant degree of influence over the formulation of the plea agreement, upon which [Hicks’] immediate return to Australia was contingent”. </p>
<p>Australia had failed to do all it could to negotiate a transfer deal which complied with the ICCPR. Therefore, it found that Hicks’ seven months of detention in Australia was “arbitrary” in breach of Article 9(1).</p>
<p>Hence, states are required to take all reasonable positive measures to protect rights when the person is being returned to their territory. However, as noted above, that duty does not extend to the situation where the person remains outside the territory.</p>
<p>Two UNHRC members, Sir Nigel Rodley and Dheerujlall Seetulsingh, dissented on this point. They noted that Prisoner Transfer Agreements are concluded for humanitarian purposes, so that prisoners can serve their sentences closer to their homes and families. Such a purpose is undermined if states fail to carry them out, as sending States will be reluctant to enter such agreements. Ultimately, that would be detrimental to future Australian prisoners abroad.</p>
<p>It is notable that the dissenters were more sceptical than the majority regarding the possibility that Australia could have exercised influence to help negotiate better terms for Hicks’ plea deal.</p>
<p>In response to the dissenters, it must be noted that <a href="http://www.bailii.org/ew/cases/EWHC/Admin/2010/58.html">the UK courts</a>, as well as <a href="http://www.worldlii.org/eu/cases/ECHR/1992/52.html">the European Court of Human Rights</a>, have endorsed the notion that sentences of Prisoner Transfer Agreements should not be enforced if the sentence is the result of a “flagrant denial of justice”. </p>
<p>Despite the humanitarian purpose of prisoner transfers, a state cannot be permitted to cooperate in the enforcement of a blatantly unjust sentence.</p>
<h2>The remedy</h2>
<p>In outlining an appropriate remedy for Hicks, the UNHRC majority clearly paid some attention to the reasoning of the minority (as well as arguments from the Australian government) in regard to prisoner transfer agreements. </p>
<p>Even though it found a violation, it found that the finding itself constituted “appropriate reparation” without, for example, a further recommendation for the payment of compensation. This was because the serving of the seven months in Australia “did, in fact, mitigate the harm he would have suffered had he continued to be kept in custody” in Guantanamo Bay. </p>
<p>Nevertheless, Australia is obliged “to take steps to prevent similar violations in the future”. This reasoning is confusing, a simultaneous pat on the back and slap on the wrist to Australia.</p>
<h2>Conclusion</h2>
<p>Hicks has been treated abominably by both the US and Australia. The UNHRC decision is a measure of vindication for him, though a weaker decision than he might have expected. </p>
<p>The UNHRC ultimately focused on the lowest-hanging fruit of a violation of article 9(1) entailed in the seven months of the sentence served locally, rather than embarking upon a more detailed examination of Australia’s co-operation with the US in the disgraceful enterprise of Guantanamo Bay.</p>
<hr>
<p><em>I am grateful to Professor Ben Saul, counsel for David Hicks, for clarifying some of the arguments made in this case to the UN Human Rights Committee.</em></p><img src="https://counter.theconversation.com/content/55120/count.gif" alt="The Conversation" width="1" height="1" />
The UN Human Rights Committee (UNHRC) released its reasons in Hicks v Australia on February 16, 2016, in which it found that Australia had breached David Hicks’ right to be free from arbitrary detention…Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/505252015-11-11T21:59:04Z2015-11-11T21:59:04ZOn the ground at Australia’s Universal Periodic Review<figure><img src="https://images.theconversation.com/files/101639/original/image-20151111-9388-1sn8h6a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">UN Geneva</span></span></figcaption></figure><p>The second Universal Periodic Review of Australia took place under the auspices of the UN Human Rights Council on November 9. Such reviews, which entail wide ranging scrutiny of a state’s human rights record, take place ever 4.5 years for each UN member state. </p>
<p>This is Australia’s second UPR, with the first having taken place in <a href="http://www.upr-info.org/en/review/Australia/Session-10---January-2011">2011</a>. I was pleased to be on the ground to witness proceedings.</p>
<h2>The process</h2>
<p>The UPR process entails the following. The state under review (in this case, Australia) produces a 20-page <a href="https://www.ag.gov.au/RightsAndProtections/HumanRights/United-Nations-Human-Rights-Reporting/Documents/UPR-National-Report-of-Australia-2015.pdf">national report</a> on its own human rights record. </p>
<p>Two other official reports are compiled by the UN. One is a <a href="http://www.upr-info.org/sites/default/files/document/australia/session_23_-_november_2015/a_hrc_wg.6_23_aus_2_e.pdf">summary of the state’s interactions with UN human rights processes</a>. In Australia’s case, this includes a number of individual cases where <a href="http://remedy.org.au/">UN treaty bodies have found instances of breaches of international human rights law</a>. The third report is a <a href="http://www.upr-info.org/sites/default/files/document/australia/session_23_-_november_2015/a_hrc_wg.6_23_aus_3_e.pdf">compilation of information from other stakeholders</a>, namely civil society and national human rights institutions – such as the Australian Human Rights Commission (AHRC).</p>
<p>Other information is also available, such as individual submissions from NGOs and UN agencies.</p>
<p>Australia was represented at its UPR by a number of senior public servants, mainly from the following departments: Attorney-General’s, DFAT, PMO and Immigration. Two politicians accompanied the delegation, both from the Human Rights Sub-Committee of the Joint Foreign Affairs, Defence and Trade Committee - its chair and deputy chair (Phillip Ruddock and ALP Senator Anne McEwen).* </p>
<p>Australia’s delegation had 70 minutes to present its report, and respond to questions and recommendations from other states. Any other state was able to intervene with comments and recommendations, so long as it advised the Human Rights Council in advance. The available time is then split between them. </p>
<p>More than 100 states intervened on Australia – indeed it was the fifth-largest number of interventions for any country in this second round of UPR. As so many countries wished to speak, the time allocated to each was short – 65 seconds!</p>
<p>It is amazing how much can be said in 65 seconds (though the chair was rather forgiving - Egypt spoke for nearly 80 seconds). In that time, most states managed to convey, briefly, some elements of praise for Australia. The proposal for a referendum on Indigenous recognition and the advent of the NDIS were particularly popular.</p>
<p>Many states congratulated Australia on the progress it had made since its last UPR. This was more a function of UN diplomatic nicety rather than reality – UPR generally involves a respectful and polite dialogue. This commentator firmly believes Australia’s human rights record has gone backwards since 2011.</p>
<p>Furthermore, while Australia accepted the vast majority of the recommendations from the 2011 UPR, the AHRC has reported that only 10% have been fully implemented. Only Russia pointed this out, during what was perhaps the most hostile intervention in terms of tone. Other states, such as Denmark and the Maldives, commented on specific 2011 recommendations that had been accepted but not fulfilled.</p>
<h2>The issues</h2>
<p>In the lead-up to UPR, representatives from Australian civil society organisations travelled to Geneva and briefed a number of country delegations. These engagements were crucial in ensuring the wide range of topics that arose, and probably in provoking the interest that led to so many interventions.</p>
<p>Most of the 65 seconds were taken up with issues of concern and recommendations for human rights improvement. The dominant issue, which came up in about two-thirds of the interventions and about half of the recommendations, was Australia’s asylum seeker policy. While the delegation defended Australia’s policies, citing the familiar tropes of <a href="https://theconversation.com/operation-sovereign-borders-offshore-detention-and-the-drownings-argument-45095">stopping drownings</a> and combating people smuggling, there was no sign that the international community bought those arguments. </p>
<p>Many recommended an end to turnbacks, offshore processing and mandatory detention (particularly for children). Some were concerned over possible refoulement in the swift rejection of asylum claims and returns to countries such as Sri Lanka and Vietnam. Others were also concerned about the lack of transparency – a particular feature of Operation Sovereign Borders. </p>
<p>The concern over asylum policies was reflected by countries from all UN regions, including staunch allies such as the UK and the US, neighbours like Indonesia and Fiji, frontline states that host millions of refugees such as Turkey and Kenya, and source countries like Afghanistan. Bangladesh called Australia “a poor benchmark” on the issue. Brazil explicitly noted “the deterioration” in asylum seeker rights since 2011.</p>
<p>Other dominant issues concerned the rights of Indigenous people (closing the gap, disproportionate representation in criminal justice), people with a disability
(discrimination, forced sterilisation, indefinite detention for some charged with a crime), women (stopping family violence, achieving equality), and children (particularly in the area of juvenile justice). </p>
<p>Another common recommendation was for Australia to ratify the human rights treaties to which it is not yet a party, especially <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCAT.aspx">the Optional Protocol to the Convention against Torture</a>, which would authorise independent international oversight of places of detention. This was a recommendation that had in fact been accepted from 2011, but is not yet fulfilled.</p>
<p>Other issues which arose multiple times, from handfuls rather than dozens of countries, included calls for Australia to combat Islamophobia, to address human trafficking and modern forms of slavery, to enact comprehensive anti-discrimination legislation, to adopt national human rights legislation, to increase aid, to adopt a national action plan on business and human rights, to protect elder rights, and to enact marriage equality legislation. </p>
<p>Surprisingly, Australia’s counter-terrorism laws attracted little comment. France recommended proper procedures before citizenship is removed; India recommended reviews of surveillance powers (Brazil alluded to such laws in wanting more privacy protection); and Pakistan added a general recommendation to ensure that counter-terrorism laws do not breach human rights.</p>
<h2>Conclusion</h2>
<p>Australia is a part of the international community. It has voluntarily submitted to international human rights obligations, and the UPR process applies equally to all states. Australia has a policy of itself intervening in every state’s UPR.</p>
<p>In reporting on UPR, and the Human Rights Council generally, the media has often <a href="http://www.theaustralian.com.au/opinion/columnists/un-human-rights-council-has-no-place-lecturing-australia/story-e6frg76f-1227605208688">fixated</a> on the identity of some of the intervening states. After all, it may seem quite bizarre that Pakistan is offering advice to Australia on its counter-terrorism laws and human rights. Such critiques often fail to mention the many recommendations which come from states with comparatively good human rights credentials.</p>
<p>Certainly, some of the recommendations came from states with far worse human rights records than Australia. But does that matter if the recommendations or matters of concern are true? For example, North Korea expressed concern over acts of violence against refugees and asylum seekers. While it may have the worst human rights record in the world, North Korea’s intervention related to a very serious matter which deserves national and international scrutiny.</p>
<p>Human rights are not a contest; they are minimum standards of required respect for human beings. Australia must take all of the recommendations seriously, regardless of the source of those recommendations. </p>
<p>The recommendations will be officially released on November 12. Australia will have until March to decide whether to accept or reject them.</p>
<p>Australia will likely reject many of the recommendations regarding asylum seekers, given the bipartisan support for most current policies. However, in doing so, Australia will be testing the international community’s patience, and perhaps entrenching pariah status on the issue.</p>
<p>In other areas, Australia can be expected to be more amenable to accepting recommendations. The key then will be for government and civil society, as well as the international community, to ensure proper follow-up and implementation. Hopefully Australia will take its commitments to this second round of UPR more seriously than the first, which is likely given it is <a href="https://theconversation.com/australias-bid-for-the-un-human-rights-council-48385">running for a seat</a> on the Human Rights Council from 2018.</p>
<ul>
<li>This article was amended 11 hours after posting, to reflect the correct parliamentary Committee to which Mr Ruddock and Senator McEwen are attached. Typos were also fixed. I have also now linked an article which demonstrates the media’s fixation with rogue nations in the UN (apologies, it may be paywalled).</li>
</ul><img src="https://counter.theconversation.com/content/50525/count.gif" alt="The Conversation" width="1" height="1" />
The second Universal Periodic Review of Australia took place under the auspices of the UN Human Rights Council on November 9. Such reviews, which entail wide ranging scrutiny of a state’s human rights…Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/483852015-09-30T06:23:59Z2015-09-30T06:23:59ZAustralia’s bid for the UN Human Rights Council<figure><img src="https://images.theconversation.com/files/96755/original/image-20150930-19561-u4gwp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">EPA/Matt Campbell</span></span></figcaption></figure><p>Foreign Minister <a href="http://www.abc.net.au/worldtoday/content/2015/s4322448.htm">Julie Bishop</a> has announced that Australia is running for a seat on the UN Human Rights Council for the period of 2018 to 2020. The bid was originally made by the previous government, and has now been officially endorsed by this one. </p>
<h2>What is the Human Rights Council?</h2>
<p>The UN Human Rights Council was established in 2006 to replace the UN Commission on Human Rights, which had run from 1947 to 2006. In that time, the commission had some impressive accomplishments, including its early drafting of the Universal Declaration on Human Rights (UDHR) in 1948, and most of the core UN human rights treaties. The commission played a role in promoting and developing human rights norms, and investigating and highlighting human rights issues and crises.</p>
<p>However, by the time of its demise, its reputation was so clouded that its official name seemed to have become “the Discredited” Human Rights Commission. The West felt that too many countries with terrible human rights records, such as Sudan and Zimbabwe, were joining the commission (it had 53 member nations) to protect themselves from censure. In contrast, developing nations felt that the commission had become too antagonistic in its dealings with them. </p>
<p>A revamp was needed, so the commission was replaced by the council, which has the same normative and investigative functions and has 47 member nations. It has one major new function, the <a href="http://www.upr-info.org/en">Universal Periodic Review</a> (“UPR”), whereby the human rights record of every UN member is reviewed by the council (as well as all other “observer” nations) every four-and-a-half years. </p>
<p>The 47 seats are divided between the five official UN regions in the following way: Africa (13); Asia (13); Latin America and the Caribbean (8); Western Europe and Other (7); Eastern Europe (6). Australia is in the Western Europe and Other Group, known as WEOG. One-third of the council is elected every year by the UN General Assembly, and members serve three-year terms. No member may serve more than two consecutive terms. A member can also be suspended from the council upon a vote of two-thirds of the UN General Assembly: <a href="http://www.un.org/press/en/2011/ga11050.doc.htm">Libya</a> was so suspended in 2011 after Muammar Gaddafi’s crackdown on Arab Spring protesters and armed dissidents.</p>
<p>As the council’s members are representatives of their governments rather than independent human rights experts, it is hardly surprising that the council, like the commission before it, is a highly politicised body. So is the council an improvement upon the “discredited” commission? While the UPR is capable of improvement, it has generally been praised as a jewel in the council’s crown, which clearly distinguishes it from the commission. </p>
<p>Nevertheless, many of the same criticisms arise as were levelled at the commission. Some of its members, now and in the past, have terrible human rights records. After all, while Libya was suspended in 2011, one may fairly ask why it was elected in the first place? </p>
<p><a href="http://www.washingtonpost.com/news/wonkblog/wp/2015/09/28/why-one-of-the-worlds-worst-human-rights-offenders-is-leading-a-un-human-rights-panel/">Saudi Arabia’s leadership role</a> is currently attracting much adverse media attention. Russia, China and Cuba are routinely elected, as was the case with the commission, though they all had to sit out 2013 as they had all served two consecutive terms. It is no coincidence that 2013 was a comparatively productive year for the council. **</p>
<p>Human rights criteria were mooted as prerequisites for membership back when the council was created. However, the UN’s nearly 200 members could not agree on substantive criteria, as they have different views on human rights. The US, for example, wanted only “democratic nations” to be eligible, whereas a focus on the implementation of economic and social rights might have led to the exclusion of the US itself. </p>
<p>Procedural criteria, such as a nation’s record on ratification of human rights treaties, would have been more objective. However, such criteria may have led to the exclusion of the two most powerful countries in the world – the US and China. As it stands, members commit to the highest standards of human rights, and countries should take into account a nominee’s human rights record when voting. But both of these rules are basically unenforceable.</p>
<p>Nevertheless, I believe that the membership of the council has generally been better than was the case with the later years of the Commission on Human Rights. It is notable that notorious abusers such as Sri Lanka and Belarus have sought and failed to gain election, while Syria was sensibly talked out of running in 2011. The secret ballot for council elections may be a key here, as there is a chance that a UN region will lose a seat for a year if an insufficient number of its nominees are deemed acceptable enough to be elected by a majority of the UN General Assembly.</p>
<p>The council is also criticised for running hard against human rights abuses in some contexts, while being notably soft in others. For example, inconsistency arose in 2009 when Israel was heavily condemned over <a href="http://unispal.un.org/UNISPAL.NSF/0/404E93E166533F828525754E00559E30">Operation Cast Lead</a> in Gaza while <a href="https://www.hrw.org/news/2009/05/27/sri-lanka-un-rights-council-fails-victims">Sri Lanka</a> was effectively praised a few months later for the end of its long-running civil war despite thousands of civilian deaths. </p>
<p>To be fair, the 2009 Sri Lanka resolution was possibly a nadir in the council’s operations, and it has been more proactive in responding to major human crises since, such as those in Côte d’Ivoire, Libya, Syria, Mali and the Central African Republic. It has also now adopted resolutions condemning <a href="http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G14/132/86/PDF/G1413286.pdf?OpenElement">Sri Lanka</a> and calling for war crimes investigations. However, Australia did not support the 2014 resolution, presumably as it sought continued political favour with Sri Lanka to ensure its ongoing co-operation to stop asylum seeker boats.</p>
<p>A global intergovernmental body focusing on human rights is important. Such a body will always be dogged by politics, but it is important to have such a forum as countries care more about what other countries think than they do about the statements of human rights experts and NGOs. The council is that global intergovernmental body, and its evolving membership represents the world of today, warts and all. </p>
<p>It is doubtful that the battle for universal human rights observance will be won by adopting an “us and them” mentality which excludes significant numbers of countries even running for election for the “human rights club”. It could lead to balkanised human rights discussions, and possible competing institutions within the UN. The council must be a forum where non-like-minded countries can talk to each other and cross divides (as does happen on occasion) to make important human rights decisions.</p>
<h2>Australia and the council</h2>
<p>Australia is seeking a three-year term from 2018. It is competing with France and Spain for two WEOG seats. Will Australia be elected?</p>
<p>It is impossible to predict; much water will flow under the bridge before the election in 2017. Widespread praise for the role Australia ultimately played as a Security Council member indicates a reasonable amount of goodwill towards us. Clearly, France and Spain have the advantage of being members of the European Union, meaning they likely have a solid bloc of votes locked in. </p>
<p>On the other hand, Australia benefits from being seen to represent a different region than the always-well-represented Europe. Australia could for example try to position itself as a champion of the Pacific nations, and we will no doubt use the eternal narrative that “we punch above our weight”. Furthermore, the EU has frankly been dysfunctional in its lobbying efforts on the council, due to its slowness in being able to pin down a position among its own members.</p>
<p>Australia’s own human rights record will be of relevance to nations in deciding how to vote. Australia’s upcoming second UPR on November 9 will enable us to see what their major concerns are. </p>
<p>Australia has significant and well-known human rights problems, for example concerning asylum seekers, onshore and offshore detention, Indigenous people, violence against women and counter-terrorism laws. Here, I will focus on issues which have the capacity to undermine Australia’s reputation for cooperation with the UN.</p>
<p>One concern will be the Abbott government’s hounding of Gillian Triggs, the president of Australia’s Human Rights Commission, as those attacks do not sit well with the single resolution that Australia routinely co-sponsors before the council – that concerning the importance and independence of <a href="http://www.ishr.ch/news/states-must-protect-and-safeguard-independence-national-human-rights-institutions">National Human Rights Institutions</a>. However, it is likely that the government’s open hostility towards Triggs will soften under new Prime Minister Malcolm Turnbull.</p>
<p>Of great concern will be Australia’s attitude to its direct engagements with UN human rights bodies. <a href="http://remedy.org.au/">We do not have a good record</a> of implementing the findings of the UN treaty bodies, which have found Australia to be in breach of international human rights law more than 40 times. </p>
<p>In March, the UN Special Rapporteur on Torture, an independent human rights expert who is appointed by and reports to the council, found that Australia’s treatment of asylum seekers contravened anti-torture standards. Then-prime minister Tony Abbott petulantly responded that Australia was <a href="http://www.smh.com.au/federal-politics/political-news/tony-abbott-australians-sick-of-being-lectured-to-by-united-nations-after-report-finds-antitorture-breach-20150309-13z3j0.html">“sick of being lectured to”</a> by the UN. </p>
<p>Only this week, the <a href="http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16503&LangID=E">Special Rapporteur on the human rights of migrants</a> postponed his official trip to Australia as the government could not guarantee that he could receive information from people about the offshore detention centres without those people suffering legal reprisals under the Border Force Act. </p>
<p>If Australia’s reputation for non-co-operation with the UN continues to grow, its council bid could and should suffer.</p>
<h2>Conclusion</h2>
<p>Australia has a long and proud history with regard to human rights and the UN. Herbert Vere Evatt oversaw the adoption of the UDHR in 1948 as the president of the UN General Assembly. Distinguished Australians have served on the UN treaty bodies (for example, Elizabeth Evatt, Ivan Shearer and Ron McCallum) and as Special Rapporteurs (for example Philip Alston is the current Rapporteur on extreme poverty and human rights).</p>
<p>It is appropriate for Australia to continue that history of leadership and engagement by running for the Human Rights Council. It is a flawed body, but a necessary one.</p>
<p>Australia’s road to election in 2018 will however be tough. A good faith attitude to our upcoming UPR and the resultant recommendations, as well as efforts to redress our considerable human rights failings, will help in that regard.</p>
<hr>
<p>**<em>The sentence on Saudi Arabia was added a few minutes after posting, due to the topicality of that issue.</em></p><img src="https://counter.theconversation.com/content/48385/count.gif" alt="The Conversation" width="1" height="1" />
<h4 class="border">Disclosure</h4><p class="fine-print"><em><span>Sarah Joseph has received funding for specific projects from the UN.</span></em></p>Foreign Minister Julie Bishop has announced that Australia is running for a seat on the UN Human Rights Council for the period of 2018 to 2020. The bid was originally made by the previous government, and…Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/461232015-08-13T21:09:32Z2015-08-13T21:09:32ZA constitutional referendum: a ‘Hail Mary’ for those opposed to same-sex marriage<figure><img src="https://images.theconversation.com/files/91842/original/image-20150813-21393-1t8rbxw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/Cathy Cho</span></span></figcaption></figure><p>On Tuesday, August 11, prospects for same-sex marriage legislation in Australia in the near future were quashed when the governing Coalition partyroom <a href="http://www.couriermail.com.au/news/queensland/controversial-debate-on-same-sex-unions-set-to-cause-rift-in-coalition/story-fnihsrf2-1227479571972">voted against a conscience vote</a> in favour of maintaining opposition to same-sex marriage. </p>
<p>However, senior members of the government have surprised us by suddenly expressing support for a plebiscite on the matter after the next election. Some on the government benches, such as <a href="http://www.abc.net.au/7.30/content/2015/s4292317.htm">Social Services Minister Scott Morrison</a> and conservative Senator Cory Bernardi, have gone even further and expressed support for the matter to be “resolved” by the people in a constitutional referendum, again after the next election.</p>
<p>The prospect of a constitutional referendum seems unlikely, especially after the prospect was dismissed by <a href="http://www.smh.com.au/federal-politics/political-news/george-brandis-slaps-down-scott-morrison-over-proposal-to-hold-samesex-marriage-referendum-20150813-giy9vy.html">George Brandis</a>, the attorney-general. However, it is not impossible, especially when someone of Morrison’s influence supports the idea. Make no mistake, however: it is a terrible idea. Here’s why.</p>
<h2>Constitutional referenda generally fail</h2>
<p>Australians are extraordinarily conservative, compared to other countries, when it comes to changing our Constitution. Under Section 128 of the Constitution, constitutional amendments must be approved by a majority of voters in a majority of states. </p>
<p>Only eight of 44 referenda have succeeded since the Constitution came into force in 1901. Rejected amendments include proposals which were initially very popular, such as the 1951 proposal to give the federal parliament power over communism, which would have paved the way for the banning of the Communist Party. According to a contemporaneous Gallup poll, that proposal had 80% support initially, and yet it was (thankfully) ultimately voted down. </p>
<p><a href="http://www.theaustralian.com.au/subscribe/news/1/index.html?sourceCode=TAWEB_WRE170_a&mode=premium&dest=http://www.theaustralian.com.au/national-affairs/newspoll/more-australians-back-change-to-allow-same-sex-marriage/story-fnc6vkbc-1227401205127&memtype=anonymous">Poll after poll</a> has confirmed that a comfortable majority of Australians favour same-sex marriage. However, the communism referendum experience suggests we should be cautious that that majority (in a majority of states) would approve a relevant constitutional proposal. The question would be different. Standard poll questions such as “are you in favour of same-sex marriage” are simply not the same as a question such as “should same-sex marriage be enshrined in the Constitution”. </p>
<p>The stakes are raised enormously with constitutional change. Unlike an ordinary statute (such as the Marriage Act 1961 (Cth)), the Constitution cannot be easily changed back – hence those in favour of the constitutional status quo on any issue find it easy to run scare campaigns. Note how the “no” campaign against a Republic latched onto the idea that one should vote “no” if one didn’t completely understand the republican model on offer in the 1999 referendum. Ignorance is bliss for those opposed to change.</p>
<p>Campaigns opposed to constitutional confirmation of same-sex marriage could, and probably would, focus on the danger of a same-sex marriage provision being “abused” by “activist judges” to have a far greater impact than originally thought. Probably not a bad thing, from the point of view of those of us in favour of LGBTI rights. </p>
<p>However, Australians have been very reluctant to approve new constitutional rights. It is already, for example, assumed in many quarters that Australians would not approve a constitutional guarantee against <a href="http://www.abc.net.au/news/2015-07-04/government-renews-reservations-about-race-discrimination-ban/6594726">racial discrimination</a>, one of the sticking points which has arisen over a proposed referendum on the recognition of Australia’s First Peoples.</p>
<p>The question would likely be framed by a prime minister who was opposed to same-sex marriage. After all, it is unlikely that a referendum would be held under a PM who was in favour – that PM would probably be able to usher a marriage reform bill through parliament by for example allowing a bipartisan conscience vote. Given the question would likely be framed by a PM who was opposed to reform, the words chosen would likely be chosen to give the “no” campaign the greatest chance.</p>
<p>No constitutional referendum has passed in Australia without <a href="http://www.abc.net.au/news/2015-07-02/constitutional-referendum-fact-check-langton/6534674">bipartisan</a> support, which would likely be lacking. As just noted, a referendum is unlikely to happen if the prime minister actually supports marriage equality.</p>
<p>A failed referendum would be a disaster for the cause of marriage equality, and could stave off reform for many years. This is probably one reason why prominent proponents of the status quo, such as Morrison and Bernardi, are in favour: it is their <a href="https://en.wikipedia.org/wiki/Hail_Mary_pass">Hail Mary play</a> against the apparent inevitability of same-sex marriage legislation in the near future.</p>
<h2>There is no relevant constitutional issue</h2>
<p>The federal parliament may only enact laws in areas where it has been given power under the Commonwealth Constitution. That is, federal legislative power must be specifically authorised under a “head of power” in the Constitution.</p>
<p>The federal parliament has power under Section 51(xxi) over the topic of “marriage”. Morrison has suggested that a referendum might clarify the scope of the federal marriage power, Section 51(xxi) of the Constitution.</p>
<p>But that is not necessary. Once upon a time (two years ago), it may have been arguable that the term “marriage” in Section 51(xxi) only encompassed marriage between men and women. However, in <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2013/55.html"><em>Commonwealth v Australian Capital Territory</em> (2013)</a>, the case which struck down the ACT same-sex marriage law, the High Court unanimously confirmed that “marriage” for the purposes of Section 51(xxi) could include same-sex marriage. Hence, it confirmed that the Commonwealth has power, if it wishes to exercise it, to legislate to allow marriage between adults of the same sex. There is no need for a referendum to clarify this issue. </p>
<p>We have never had a constitutional referendum where a “change” is not actually proposed. In any case, there is something inherently oppressive in asking the majority to approve of equal rights for a minority – this betrays an impoverished and utilitarian approach to human rights. </p>
<p>A referendum should only be held when there is an actual constitutional issue at stake. This was, for example, the case in <a href="http://www.theguardian.com/global/live/2015/may/23/counting-underway-for-irelands-referendum-on-marriage-equality">Ireland</a>. Its Constitution prohibited same-sex marriage, so a referendum was needed in order to enact marriage reform legislation in that country.</p>
<h2>What would or could a referendum achieve?</h2>
<p>Morrison has indicated that we would be asked to clarify the scope of the marriage power. As noted above, its scope with regard to same-sex marriage has already been clarified by the High Court. So what could a referendum achieve?</p>
<p>Suppose we were asked whether to include clarifying words in Section 51(xxi), so that it read something like: “marriage including opposite and same-sex marriage”. This is <a href="http://www.abc.net.au/7.30/content/2015/s4292317.htm">Morrison’s suggestion</a>. </p>
<p>Suppose that change of wording was approved. All that would be achieved is that the people would be approving a pre-existing interpretation of Section 51(xxi) by the High Court. The change itself would not actually introduce marriage equality. We would be back to Square 1 again, with the Australian people relying on the Commonwealth parliament to act. All such a referendum would prove is that the Australian people are happy for the federal parliament to have the power; it arguably would not prove that we want them to exercise that power. So a “yes” vote could easily have no real consequence.</p>
<p>Even more intriguing would be the consequences of the change being rejected. The one-word Section 51(xxi) would remain the same. But what would that one word mean? The High Court has already decided that it incorporates opposite and same-sex marriage. Would the referendum mean that the High Court has to change its mind? It would not. The High Court has already rejected the relevance of failed referenda in the <a href="http://blogs.unimelb.edu.au/opinionsonhigh/2015/08/13/news-referendum-on-constitutional-meaning-of-marriage/">famous <em>Workchoices</em> case</a>. So, a “no” vote may have no real consequence.</p>
<p>Finally, let us assume that a “no” vote led the High Court to alter its interpretation, such that “same-sex” marriage was excluded from Section 51(xxi). This would not prohibit same sex-marriage in Australia. It would transfer power from the Commonwealth to the state/territories over the matter. In the High Court case on the ACT same-sex marriage legislation, it was held that federal marriage legislation “covers the field” of all opposite and same-sex marriage. </p>
<p>That circumstance currently quashes opportunities for same-sex marriage legislation in the states or territories. If Commonwealth power over same-sex marriage disappears, that part of the field would be vacated and the states and territories would be free to legislate as they wish.</p>
<p>That would lead us back to square 1 again, but dealing with eight jurisdictions instead of one. And many of those eight jurisdictions, such as the ACT and Victoria, would likely take up a new opportunity to legislate for same-sex marriage. So, it does not seem that Morrison and Bernardi have thought this through.</p>
<h2>Conclusion: expensive pointless obfuscation</h2>
<p>A constitutional referendum on same-sex marriage could be a disaster for those in favour of reform. More likely, however, it could achieve nothing at all. Or it could lead to a confusing legal mess, with total uncertainly over the true constitutional locus of legislative power over same-sex marriage. </p>
<p>The Hail Mary move of those wedded to the status quo would be divisive, expensive and likely pointless, to the satisfaction of nobody.</p>
<hr>
<p><em>Note: A plebiscite is different to a constitutional referendum. A plebiscite would be a simple vote on a question such as “Should Australia have same-sex marriage?”, with no direct legal effect and no constitutional consequence. This article is not about plebiscites. This footnote added for clarity three hours after initial posting.</em></p><img src="https://counter.theconversation.com/content/46123/count.gif" alt="The Conversation" width="1" height="1" />
On Tuesday, August 11, prospects for same-sex marriage legislation in Australia in the near future were quashed when the governing Coalition partyroom voted against a conscience vote in favour of maintaining…Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/450952015-07-24T02:01:06Z2015-07-24T02:01:06ZOperation Sovereign Borders, offshore detention and the ‘drownings argument’<figure><img src="https://images.theconversation.com/files/89435/original/image-20150723-22816-12ftlgk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">AAP/Scott Fisher</span></span></figcaption></figure><p><em>This article is based on Sarah Joseph’s presentation to the Castan Centre for Human Rights Law’s 2015 conference, delivered on July 24. You can click through her presentation using Prezi below.</em></p>
<iframe id="iframe_container" frameborder="0" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" width="100%" height="400" src="https://prezi.com/embed/xyuww6olmcax/?bgcolor=ffffff&lock_to_path=0&autoplay=0&autohide_ctrls=0&landing_data=bHVZZmNaNDBIWmlSa1k1MmNRK3VoaXFhTktOYzU5Ynl1eWtiVVRLK2V4VnNWanZVcnA5RXVkajRLbE9ubDNxRCsyUT0&landing_sign=eFtH9op6l3d41FYVRLcREaLbv6D9tnnoyL7WD7WbZ-I#"></iframe>
<p><br></p>
<p>On the day of the release of the Human Rights Commission’s report into children in detention, Prime Minister Tony Abbott said:</p>
<blockquote>
<p>The most compassionate thing you can do is stop the boats. We have stopped the boats.</p>
</blockquote>
<p>Upon being confronted in June by allegations of bribing people smugglers, Abbott replied:</p>
<blockquote>
<p>There’s really only one thing to say here, and that is that we’ve stopped the boats. That’s good for Australia, it’s good for Indonesia and it’s particularly good for all those who want to see a better world.</p>
</blockquote>
<p>And in response to nearly 2000 drownings in the Mediterranean in one quarter this year, Abbott’s advice to Europe was blunt:</p>
<blockquote>
<p>The only way you can stop the deaths is to stop the people smuggling trade. The only way you can stop the deaths is in fact to stop the boats.</p>
</blockquote>
<p>And one can see that this line is taken up by some in the media is well – as seen in this tweet from News Ltd columnist Chris Kenny.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"614276731873001473"}"></div></p>
<p>Under the period of the Rudd/Gillard government, it is widely accepted that around 1200 asylum seekers drowned on their way to Australia. That figure is backed up by Monash’s Border Observatory website, Marg Hutton’s sievx.com website and ABC Fact Check. It seems around 2-4% of those who attempted the journey died doing it.</p>
<p>Under the Abbott government, Hutton and the Border Observatory record about 40 likely deaths by drowning of people trying to make their way to Australia by boat, most in a single incident in the government’s first month.</p>
<p>So, the argument is that the government’s suite of harsh measures, including towbacks, offshore detention, offshore processing and resettlement, offshore non-processing and non-resettlement, are designed to deter people from seeking asylum in Australia by boat. They stop people from embarking on dangerous journeys where they might drown.</p>
<p>And now the opposition leader, Bill Shorten, is advocating the same policy, reasoning that the policy “saves lives”. </p>
<p>At first glance this seems a powerful moral argument. The drownings argument has swayed many who were once critical of harsh border measures.</p>
<p>The 50 deaths on the rocks at Christmas Island in December 2010 swayed the ALP left, which was long resistant to offshore processing – and also Paris Aristotle, of the Victorian Foundation for the Survivors of Torture, whose commitment to human rights cannot be doubted. Public intellectual Robert Manne also changed his mind, saying that opposition to offshore processing was part of “ineffectual and sometimes misguided humanitarianism”.</p>
<p>So, how to evaluate this “drownings” argument?</p>
<p>First, we must consider the “bona fides” – or sincerity – of the government’s position. Is it really pursuing harsh refugee policies in order to save lives? Many are sceptical about this. The mantra of “stop the boats” has been around much longer than the explicit concern about drowning.</p>
<p>Motivations are evidenced by actions. Australia has allegedly paid people smugglers to return to Indonesia with their human cargo. The government will neither confirm nor deny, but there is evidence from Indonesia indicating the payments took place. The vessel in question had to be rescued off a reef in Indonesia. That return trip was hardly safe.</p>
<p>The same might be said for the forced returns by way of the orange lifeboats. Three allegedly drowned in a river after such a return. </p>
<p>And just this week, it seems an asylum seeker boat from Vietnam nearly reached Western Australia and has been escorted away, to where we do not know. It is surely safer to let them dock, rather than to send them off to the wide ocean again.</p>
<p>However, the bona fides or sincerity of the argument may not be so important if the policy is saving lives. The ends may justify the means, regardless of alternative perverse motivations.</p>
<p>So, is the policy saving lives? We know that the boats have largely stopped arriving in Australia, leaving aside the boat from this week. But have they stopped leaving Indonesia? Or Sri Lanka? Or Vietnam?</p>
<p>Many of the 1200 assumed dead under the Rudd/Gillard governments disappeared and are assumed drowned. Could the same thing be happening under Abbott, but with less publicity? After all, “on water” matters are now of utmost confidentiality. Iron law, so we were told this week.</p>
<p>This is a spurious resort to national security. Asylum seekers, and even the crime of people smuggling, are not a national security issue. They are unarmed people arriving in this country seeking our help. They are not sneaking into the country; they are all intercepted at the border. In fact they surrender at the border.</p>
<p>To the extent that the government wants to keep information from people smugglers, I suspect the smugglers know a lot more about what is going on than the Australian public. They know which boats have left, which have failed to reach their goal, those which have returned, and perhaps those which have been bribed.</p>
<p>In these circumstances of utter failure in transparency and accountability, the government deserves no benefit of the doubt. It may say it has stopped the boats, but in the face of deliberate concealment of information, we are entitled to be sceptical.</p>
<p>Nevertheless, I tend to think that most or at least many drownings, or lost boats, would be reported. Information does come through from Indonesia (though we know less about what might be happening from Sri Lanka or Vietnam). I think the absence of evidence of drownings does, fairly, indicate there have been none or very few. Certainly less than the numbers under Rudd and Gillard.</p>
<p>So, I am going to proceed on the basis that the government’s core premise holds true. By stopping the boats from reaching Australia, the policy correlates with a drastic reduction in deaths by drowning en route to this country.</p>
<p>So, in that respect, are the harsh policies therefore justified? Do the means justify the ends, regardless of motivation, if the ends correlate with many fewer deaths by drowning. Do asylum seekers, to quote Chris Kenny, “owe their lives” to the Abbott government?</p>
<p>More than 90% of the asylum seekers who have arrived by boat in Australia have been recognised as refugees. At the risk of sounding trite, it is really dangerous being a refugee. Drowning by boat is drowning while fleeing. But it is very dangerous to flee via land. And it is very dangerous to not flee.</p>
<p>And it is very dangerous to go to a refugee camp. There is crime, violence, death, disease and even disaster. They are chronically underfunded.</p>
<p>The options, if one is a refugee, are not good. It is why so many resort to using people smugglers, due to an absence of safe pathways.</p>
<p>The refugee camps – if you can get to one, and that is not easy - are the so-called queues, the homes of the “good” refugees who wait to enter by the front door, not the “bad” refugees who are apparently jumping the queue.</p>
<p>But refugee camps don’t operate like queues – it isn’t first-come first-served. If it was, apparently it would take a refugee arriving in the “queue” now 170 years to reach the front. The average stay in a refugee camp is 17 years. So many stay much longer and even die there.</p>
<p>So there is another reason why people get on boats: their own agency as human beings.** People are making a conscious choice that their best option is to seek asylum via boat. Otherwise they have no future.</p>
<p>Furthermore, there is no future for refugees in certain countries in our neighbourhood such as Indonesia and Malaysia. It is hard to get work, hard to get education, hard to have one’s claim processed, and hard to be resettled even if one is found to be a refugee.</p>
<p>In those circumstances – limbo – people seek out a route to a country where they can find resettlement, which used to include Australia.</p>
<p>Like everyone, they care about safety, stability and having a future. And accordingly, many knowingly take a risk. I don’t deny that sometimes people might be forced onto boats unaware of the risk, especially women and children. But the majority are not oblivious to the news of sinking boats.</p>
<p>In December 2011, more than 200 drowned when an asylum seeker boat sank off the coast of Java. Most of the victims were Iranian men. Survivors were interviewed by the media afterwards. They were distraught, but they would try again. One quote: </p>
<blockquote>
<p>We will continue this way again. We will go again by boat.</p>
</blockquote>
<p>That is symptomatic of the plight of the asylum seeker. It is horribly reminiscent of the plight of migrants of old. I was in Ireland last week, and reminded of mass migration from that country in the 19th century – some of it to Australia but much of it to the US, where the Irish community is now huge and successful.</p>
<p>Yet so many died on the journey to get there. They were known as coffin ships, and the mortality rate aboard them was commonly around 30%. Many of today’s refugees have as few choices as those fleeing famine and persecution in Ireland 150 years ago.</p>
<p>Furthermore, what would you do?</p>
<p>If you would contemplate the boat, if you would take the boat, then the argument boils down to this. Our insistence that they not get on boats may seem compassionate, but it is also the sanctimony of the safe and the rich. We are basically telling desperate people to flee in a way that makes us feel comfortable. </p>
<p>We may have stopped the boats coming to Australia. But ultimately this strategy, which is pretty much erecting a “keep out” sign around our continent, will save nobody. This is because the refugee issue is global. And refugees all over the world are making necessary and dangerous and often fatal choices due to dire circumstances of which they have no control.</p>
<p>There are around 60 million displaced people in the world, including internally displaced people – more than at any time in human history: one in 122 people.</p>
<p>Last December, the International Organisation for Migration said there were a record number of asylum seeker deaths at sea in 2014, due to the increase in “desperation migration”.</p>
<p>As for Abbott’s advice to stop the boats on the Mediterranean – many of those attempting the crossing are from Syria, Afghanistan, Eritrea and Somalia. Does anyone doubt their need to flee?</p>
<p>And consider their options. For Syrians: stay, go to crammed refugee camps in Jordan and Turkey, where access is now restricted anyway, stay in dangerous limbo en route, or stay in Libya, where Islamic State is flourishing.</p>
<p>It was thought that the Italian rescue operation, Mare Nostrum, was a pull factor. But the numbers attempting the crossing did not stop when that rescue operation was significantly curtailed – just more drowned.</p>
<p>The boats are not even stopping in our neighbourhood. Twice as many boats have set out from Burma and Bangladesh in the first quarter of this year compared to 2014. On the news we all saw the macabre spectacle of stranded boats being pushed away from Thailand and Malaysia, while people died on them.</p>
<p>So, the bottom line – the boats to Australia might be stopping. But refugee boats and outflows and needs are not. Our current policy is the ultimate case of NIMBY. Leave it to the rest of the world to cope with this problem.</p>
<p>So, what are the solutions? If not Operation Sovereign Borders, what else?</p>
<p>Proportion is lacking in any discussion of Australia and refugees. There has been a deliberate hyping of the actual numbers, as well as an insidious narrative of illegals and invasion, including an unsubtle linkage between asylum seekers and terrorism. And yet the numbers arriving by boat since the topic became so politically toxic (ie since 1999) would not fill the MCG.</p>
<p>It is nothing compared to the hundreds of thousands hosted by states like Turkey, Jordan, and Kenya. For example, there are 1.2 million refugees in Lebanon and 1.7 million Syrians in Turkey.</p>
<p>Australia could substantially increase its humanitarian intake, and take many more from the region, reducing the incentive for people to get on boats. Australia could decouple its largely unique link between offshore and onshore intake so we don’t play off refugees against each other. </p>
<p>Of course Australia can’t solve the world’s refugee problem on its own. But we should aim to be part of a solution, not an exacerbator of the problem.</p>
<p>That means real dialogue towards a real regional framework, rather than upsetting Indonesia with our boats policy, and saying “no no no” to the idea of taking in Rohingya refugees who have fled via boat.</p>
<p>Globally, more sustainable solutions are needed. Less than 10% of refugees who urgently need resettlement are resettled. The UNHCR estimates that nearly one million need resettlement but only about 80,000 will receive it. This severe disconnect between resettlement needs and resettlement places is ongoing and deteriorating.</p>
<p>A great increase in resettlement in Western countries is needed, including Australia, but that won’t solve the problem by itself. Other states need to get on board. </p>
<p>For example, by late 2014, the Gulf countries had taken no Syrian refugees. Japan, South Korea, the BRIC countries, and middle income States like Malaysia, are all capable of increasing their resettlement places in accordance with increased economic capacities. But countries with “economic capacities” do not include Nauru, Papua New Guinea or Cambodia. </p>
<p>Australia’s asylum seekers issues cannot be divorced from the global refugee crisis. And the solutions are therefore complex. That complexity can seem messy compared to the brutal simplicity of the government’s solution to simply “stop the boats”.</p>
<p>But, frankly, I don’t want to buy into a phenomenon which the critical legal scholar Mark Tushnet has called “blue-printism”. That is the idea that one can’t criticise a policy unless there is a readymade comprehensive blueprint for an alternative. Blueprintism inherently and unjustifiably entrenches the status quo.</p>
<p>Yet the burden of proof is on the government to demonstrate that its policy settings are correct. And I don’t think it can, given the numerous grave flaws in that policy.</p>
<ul>
<li><p>The expenditure of billions of dollars on the offshore warehousing of asylum seekers is not the answer, when humane policies are so much cheaper.</p></li>
<li><p>High seas refoulement and disappearance is not the answer.</p></li>
<li><p>The silencing of reports of sexual and other abuse in offshore detention is not the answer.</p></li>
<li><p>The iron law of on-water confidentiality, restricting the info that the Australian people receive on the treatment of human beings under its own government’s policies, is not the answer.</p></li>
<li><p>Australia’s mute response to breakdowns in the rule of law on Nauru and PNG are not the answer.</p></li>
<li><p>The shredding of Australia’s international reputation is not the answer.</p></li>
<li><p>The creation of what former Australian of the Year Pat McGorry has called “factories for producing mental illness” is not the answer.</p></li>
<li><p>And finally, the use of people as means to ends, people who have plainly not drowned and are in no danger of drowning – the infliction of deliberate cruelty on such people so as to deter others from coming – is most certainly not the answer.</p></li>
</ul>
<p>It is unlikely that we are saving lives, but we are definitely ruining them.</p>
<p>** I thank my colleague Dr Patrick Emerton for his thoughts on this point (this piece was edited on the morning of 26/7 to included this acknowledgment and make three very minor editorial improvements).</p><img src="https://counter.theconversation.com/content/45095/count.gif" alt="The Conversation" width="1" height="1" />
This article is based on Sarah Joseph’s presentation to the Castan Centre for Human Rights Law’s 2015 conference, delivered on July 24. You can click through her presentation using Prezi below. On the…Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/364162015-01-19T00:52:20Z2015-01-19T00:52:20ZTicking down to a possible date with executioners<figure><img src="https://images.theconversation.com/files/69324/original/image-20150119-2756-n3h17q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Two Australians, Myuran Sukumaran and Andrew Chan, are edging closer to death by firing squad in Indonesia.</span> <span class="attribution"><span class="source">EPA/Made Nagi</span></span></figcaption></figure><p><em>Tick tick tick. Ticking down. Inexorably. To a designated time when I will be blindfolded in a white shirt with a reflective tag over my heart. I will be given <a href="http://www.smh.com.au/world/drug-traffickers-in-indonesia-face-firing-squad-of-12-in-first-executions-of-2015-20150117-12sbid.html">three minutes to “calm down”</a>, and have a choice to lie, sit or stand. A few metres away a firing squad will be ordered to “do it”, to fire at our hearts. If necessary, the commander will finish the job by firing a shot into my brain from very close range. And all this is legally sanctioned, indeed legally required. Tick tick … The guns will fire. And after that …</em> .</p>
<p>Just after midnight Indonesian time on January 18, <a href="http://www.abc.net.au/news/2015-01-18/indonesia-executes-six-drug-convicts-most-foreigners/6023518">six people convicted of drug offences were executed</a> by firing squad in Indonesia. Five of the six were foreign nationals. The executions have a chilling resonance for the two ringleaders of the Bali 9: Myuran Sukumaran and Andrew Chan have been on death row for nearly a decade and time could now be running out. On December 30, Sukumaran’s plea for executive clemency was <a href="http://www.news.com.au/world/asia/bali-nine-death-row-inmates-andrew-chan-and-myuran-sukumaran-a-step-closer-to-firing-squad-as-executions-begin/story-fnh81fz8-1227187710247">rejected</a> by new Indonesian President Joko Widodo. Chan is yet to receive news of his bid for clemency, but <a href="http://www.news.com.au/national/death-row-inmate-myuran-sukumaran-pleads-for-mercy-as-clemency-bid-is-rejected/story-fncynjr2-1227178290922">Widodo has signalled</a> that he is unlikely to grant clemency for drug crimes.</p>
<p>The <a href="http://www.abc.net.au/news/2015-01-17/abbott-appeals-to-widodo-over-bali-9-execution/6022880">Australian government</a> is and will be pleading for the lives of the two men. Indeed, <a href="http://edition.cnn.com/2014/04/03/world/meast/saudi-arabia-indonesia-maid/">Indonesia itself</a> has pleaded with other countries for clemency for its nationals on death row. </p>
<p>However, it probably wasn’t helpful for Prime Minister Tony Abbott to state that the matter will not <a href="http://www.news.com.au/national/death-row-inmate-myuran-sukumaran-pleads-for-mercy-as-clemency-bid-is-rejected/story-fncynjr2-1227178290922">“jeopardise”</a> relations with Indonesia. In the wake of Saturday’s executions, <a href="http://www.theguardian.com/world/2015/jan/18/brazil-netherlands-recall-ambassadors-indonesia-executes-drugs-offenders">Brazil and the Netherlands</a> recalled their ambassadors from Indonesia, as two of the six executed were, respectively, their citizens. It is premature for Abbott to signal that Australia will not do the same.</p>
<p>Throughout their incarceration in Kerobokan prison in Bali, it appears clear that Sukumaran and Chan have been rehabilitated. Sukumaran is, for example, a talented painter who has taken lessons from, and formed a friendship with, famed Australian painter <a href="http://www.abc.net.au/radionational/programs/breakfast/ben-quilty-and-myuran-sukumarans-unlikely-friendship/6014160">Ben Quilty</a>. He has helped set up rehabilitation programmes for other prisoners, such as a computer room and art classes. Chan also organises courses in prison and leads its English-language church services. The <a href="http://www.smh.com.au/national/faith-sustains-condemned-man-andrew-chan-20110620-1gbxk.html">governor of Kerobokan</a> pleaded for clemency for Chan in an earlier judicial proceeding. As Sukumaran has said, <a href="http://www.smh.com.au/world/no-second-chance-for-bali-nine-member-myuran-sukumaran-says-indonesian-president-joko-widodo-20150108-12ki9e.html">what good does it do to kill them now</a>?</p>
<h2>Human rights law and the death penalty</h2>
<p>Under international human rights law, the death penalty is permitted in the narrowest of circumstances. <a href="http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">Article 6 of the International Covenant on Civil and Political Rights (“ICCPR”)</a> guarantees the right to life, but paragraph 2 outlines an exemption for the death penalty. This is unsurprising as the ICCPR was adopted in 1966, a time when most countries, including Australia, still used the death penalty. In practice, only about a quarter of the world’s countries <a href="http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries">retain</a> the death penalty today.</p>
<p>Under article 6(2), the death penalty is permitted only for “the most serious crimes”. That phrase has been interpreted by authoritative bodies as being limited only to intentional killing, that is murder. Drug trafficking, while serious, is not a “most” serious crime. So Indonesia, which acceded to the Covenant in 2006, <a href="http://www.ccprcentre.org/country/indonesia/">breached the ICCPR</a> with the executions of Saturday night, and will do so again if it executes Chan and Sukumaran.</p>
<p>The duo has spent nearly ten years on death row. The <a href="http://www.internetjournalofcriminology.com/Harrison_Tamony_%20Death_Row_Syndrome%20_IJC_Nov_2010.pdf">“death row phenomenon”</a> refers to the consequences of an extended period of time on death row, where stress inevitably builds up over one’s ever-approaching date with an executioner. Some domestic and international courts have found that the “death row phenomenon” constitutes cruel and inhuman treatment in breach of human rights standards. <a href="http://www.eji.org/files/Pratt%20and%20Morgan%20v.%20Jamaica.pdf">The Privy Council</a> has, for example, found that no one should spend more than five years on death row: sentences must be commuted after that time. The <a href="http://www1.umn.edu/humanrts/undocs/html/VWS58856.htm">UN Human Rights Committee</a> (the body which supervises and monitors the ICCPR), however, does not condemn the death row phenomenon as it does not wish to encourage States to execute people faster. In its view, “life on death row, harsh as it may be, is preferable to death”.</p>
<p>However, there does seem to be unseemly confusion in Indonesia over the processes available for appealing a death penalty. It took over a week for Widodo’s rejection of Sukumaran’s plea to be properly communicated. Sukumaran’s Indonesian lawyer has just announced plans to seek <a href="http://www.heraldsun.com.au/news/world/six-executed-as-myuran-sukumarans-lawyer-plans-appeal-to-stop-firing-squad/story-fni0xs61-1227188174626?from=herald%20sun_rss">further judicial review</a> of the sentence. It is at present unclear whether such an avenue is available. Such uncertainty is unnecessarily cruel to a person facing a State-sanctioned order of termination.</p>
<h2>Australia’s involvement in the capture of the Bali 9</h2>
<p>The <a href="http://www.theaustralian.com.au/news/features/how-the-afp-trapped-the-bali-nine/story-e6frg6z6-1225910600831">Australian Federal Police</a> (“AFP”) tipped off the Indonesian authorities about the Bali 9. It is arguable that this action has breached Australia’s own obligations under the ICCPR.</p>
<p>Australia has abolished the death penalty. As Article 6(2) applies only to those States that have <em>not</em> abolished the death penalty, the death penalty exception in article 6(2) has no application to Australia. Further, Australia is a party to the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/2ndOPCCPR.aspx">Second Optional Protocol</a> to the ICCPR, which prohibits the death penalty in all circumstances.</p>
<p>Australia therefore has an obligation not to execute people, <a href="http://www1.umn.edu/humanrts/undocs/829-1998.html">nor to expose them to a real risk of capital punishment in another country</a> by, for example, extraditing them without assurances against execution. Indeed, Australia has recently stated that <a href="http://www.smh.com.au/world/convicted-malaysian-murderer-would-not-be-sent-back-to-face-death-penalty-20150115-12r36e.html">it will not extradite</a> a convicted murderer to Malaysia without Malaysian guarantees that the man will not be executed.</p>
<p>The same obligation <a href="https://flr.law.anu.edu.au/sites/flr.anulaw.anu.edu.au/files/flr/Sifris.pdf">may mean</a> that Australia must not alert foreign authorities to the commission of a capital crime, particularly if the alleged perpetrators can easily be apprehended in Australia. The argument is probably strongest with regard to Chan, who was on a plane alongside four “drug mules” intending to carry heroin from Bali to Australia, when apprehended by Indonesian police. Those five people could easily have been arrested upon arrival in Australia. Such a strategy would have ensured the non-exposure of the five, including Chan, to capital punishment.</p>
<h2>The clock</h2>
<p>Of course, there are many other arguments one could raise about the situation. For example, Wododo has justified the executions on the basis that Indonesia faces a <a href="http://www.theguardian.com/uk-news/2014/dec/10/british-grandmother-on-death-row-will-not-be-reprieved-says-indonesias-president">“drug emergency”</a>, implying that capital punishment somehow helps to reduce that crisis. Yet the death penalty does not in fact seem to <a href="http://secondchances.asia/does-the-mandatory-death-penalty-and-the-death-penalty-work-as-a-deterrent/">work as a deterrent</a>.</p>
<p>But I leave readers where I began. And that is the grisly reality that human beings within the apparatus of government are setting dates with death for designated individuals. Other human beings are compelled to carry out that task. In the 21st century, I cannot fathom that that is conceivably within the appropriate bounds of the role of the modern State.</p>
<p>And for six men and women last Saturday:</p>
<p><em>Tick tick tick ….. time out.</em></p><img src="https://counter.theconversation.com/content/36416/count.gif" alt="The Conversation" width="1" height="1" />
Tick tick tick. Ticking down. Inexorably. To a designated time when I will be blindfolded in a white shirt with a reflective tag over my heart. I will be given three minutes to “calm down”, and have a…Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/249462014-03-27T22:58:29Z2014-03-27T22:58:29ZRights to bigotry and green lights to hate<figure><img src="https://images.theconversation.com/files/44955/original/t6dmsqxz-1395961344.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">AAP/Stefan Postles</span></span></figcaption></figure><figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/44955/original/t6dmsqxz-1395961344.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/44955/original/t6dmsqxz-1395961344.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/44955/original/t6dmsqxz-1395961344.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/44955/original/t6dmsqxz-1395961344.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/44955/original/t6dmsqxz-1395961344.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/44955/original/t6dmsqxz-1395961344.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/44955/original/t6dmsqxz-1395961344.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p>Poor George Brandis. Our Attorney-General seems to have wedged himself on the issue of racial vilification. Soon after the election of the Abbott government, Senator Brandis defiantly declared that repeal of Section 18C of the Racial Discrimination Act would be his <a href="http://www.theaustralian.com.au/business/legal-affairs/attorney-general-george-brandiss-first-task-repeal-bolt-laws-in-name-of-free-speech/story-e6frg97x-1226755431421">first task</a> as Australia’s first law officer. </p>
<p>Nearly five months later, we finally have an <a href="http://www.ag.gov.au/Consultations/Documents/Attachment%20A.pdf">exposure draft</a> of new legislation to consider. Apparently, the draft is <a href="http://www.ag.gov.au/Consultations/Documents/Attachment%20A.pdf">watered down</a> from Brandis’ original proposals due to cabinet and party room displeasure.</p>
<p>As I have explained <a href="http://castancentre.com/2011/09/29/andrew-bolt-free-speech-and-racial-intolerance/">before</a> and below, I have some support for a move to amend s18C. However, I must acknowledge that I am not a person who has suffered from racial abuse, so I have not experienced its torment. Further, the optics of this issue being Brandis’s first business, investing the need to repeal with such great urgency, are terrible. Are restrictions on racist speech really one of the gravest harms to freedom in this country? Please.</p>
<p>Section 18C has sat, quite uncontroversially, on our statute books since 1995, including the entire period of the Howard government. It came to prominence when conservative columnist <a href="http://castancentre.com/2011/09/29/andrew-bolt-free-speech-and-racial-intolerance/">Andrew Bolt</a> was found to have breached the provision in 2011 by the publication of two columns about fair skinned Aboriginal people. </p>
<p>Bolt queried, in scathing and inaccurate terms, certain people’s Indigenous identity.* Since then, Bolt has thundered about <a href="http://blogs.news.com.au/heraldsun/andrewbolt/index.php/heraldsun/comments/the_truth_about_marcia_langton_i_ask_tony_jones_to_read_it/">his own martyrdom</a> on the pyre of free speech in the many media platforms available to him, enthusiastically cheered by supporters such as the <a href="http://ipa.org.au/news/2486/bolt-case-highlights-discriminatory-act">Institute of Public Affairs</a> (“IPA”). Those supporters include Brandis, who has made it quite clear that the law will be crafted to ensure no repeat of the result in the Bolt case.</p>
<p>Brandis seems to have assumed that the repeal of s18C would be relatively uncontroversial, mistaking the hubris of Bolt and the IPA for genuine community concern. Bolt and the IPA, perhaps an easy constituency for Brandis to pander to in opposition, are a <a href="http://www.smh.com.au/federal-politics/political-news/rightwing-think-tank-ipa-says-george-brandis-is-backtracking-on-race-hate-laws-20140311-34kbu.html">tricky constituency</a> to satisfy in government.</p>
<h2>The right to bigotry</h2>
<p>On Monday, Brandis proclaimed that <a href="http://www.theguardian.com/world/2014/mar/24/george-brandis-people-have-the-right-to-be-bigots">“people have the right to be bigots”</a>, an embarrassing moment made worse by the fact that it was aimed at the ALP’s first Indigenous parliamentary representative, Senator Nova Peris. Though I suspect he regrets the statement, Brandis is actually correct from a human rights point of view.</p>
<p>And not only that, people have an absolute unqualified right to be bigots! <a href="http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html">Article 19(1)</a> of the International Covenant on Civil and Political Rights (“ICCPR”) guarantees the right to freedom of opinion. People can hold any opinion, no matter how horrid or bigoted. </p>
<p>Where things get tricky is the right to act like a bigot, including rights to express bigotry. Such rights are qualified. There, one has to look at other provisions, which are qualified, namely Articles 19(2), 19(3), 20 and 26.</p>
<h2>The exposure draft</h2>
<p>The proposed Freedom of Speech (Repeal of s18C) Bill 2014 repeals s18C, along with s18D, which currently provides a “free speech defence” to s18C offences. Section 18E is supposed to go too, which currently provides for employer liability (vicarious liability) for breaches of s18c by employees and agents. The draft then provides for replacement provisions.</p>
<p><a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">Section 18C</a> currently renders unlawful any public act which is reasonably likely to offend, insult, humiliate or intimidate another on the basis of race (subject to exemptions in s 18D) if the act is done because of that other person’s race. The proposed amendment would remove the prohibitions on offensive, insulting or humiliating acts.</p>
<p><strong>Offence and insult</strong></p>
<p>I have <a href="http://castancentre.com/2011/09/29/andrew-bolt-free-speech-and-racial-intolerance/">previously explained</a> that the prohibitions on that which offends and insults, even on the basis of race, go too far. Feelings of offence and insult are not serious enough to justify restrictions on the human right to freedom of speech: there are no countervailing human rights to freedom from offence or freedom from insult.</p>
<p>It is true that the terms, “offence” and “insult” have been interpreted so that they mean <a href="http://www.theaustralian.com.au/business/legal-affairs/commentary-on-section-18c-often-blind-to-substantial-body-of-case-law/story-e6frg97x-1226854177771">more than “mere” offence and insult</a>. It is arguable that judicial interpretation has saved these provisions from actually breaching the right to free speech. However, the law should mean what it says. If “offence” and “insult” do not mean what they say, the prohibitions should go.</p>
<p><strong>Humiliation</strong></p>
<p>The prohibition on “humiliation” is also set to go. Humiliation is more serious than offence and insult. Humiliation on the basis of one’s race prejudices one’s right to be free from racial discrimination, a genuine human right that may permissibly override freedom of speech. Instead, the exposure draft favours freedom of speech, specifically the right to humiliate another on the basis of race.</p>
<p><strong>Intimidation</strong></p>
<p>Intimidation, the most serious of the current prohibitions, stays. As with humiliation, acts of racial intimidation infringe another person’s right to be free from race discrimination. Further, intimidation harms that other person’s right to security of the person under Article 9 of the ICCPR.</p>
<p>However, the exposure draft defines intimidation very narrowly. Intimidation will mean the causing of “fear of physical harm” to one’s person, one’s property, or to members of a group. “Psychological harm” is excluded. Yet fear of psychological harm to one’s person seems more intimidating than fear of physical harm to one’s property.</p>
<p>Bolt’s articles were found to be likely to intimidate less experienced lighter skinned Aboriginal people from self-identifying as Indigenous. The narrower definition of “intimidation” excludes Bolt’s articles from its remit.</p>
<p><strong>Vilification</strong></p>
<p>A new prohibition is added in the exposure draft, a ban on racial vilification, that is an act which incites hatred again a person or a group of persons. This is a true hate speech provision. Hate speech traditionally concerns the “incitement” of third parties by racist speech, rather than the effect of such speech on the targeted people themselves. Indeed, Bromberg J in Bolt’s case distinguished s18C from the concept of “race hate”.</p>
<p>Vilification is already effectively banned under the current provisions. Speech which vilifies must surely simultaneously offend, insult, humiliate or intimidate. Nevertheless, the new proposed additional prohibition is welcome. It encapsulates even worse behaviour than that which intimidates.</p>
<p><strong>Clause 3</strong></p>
<p>By whose standards is it to be decided that an act intimidates or vilifies? In the Bolt case, Bromberg J decided that the relevant standards were those of the target group, in that case fair skinned Aboriginal people, rather than those of the general community. Clause 3 reverses that decision: the standards are proposed to be those of the “reasonable member of the Australian community, not … the standards of any particular group within the Australian community”.</p>
<p>Clause 3 may be justifiable with regard to vilification, which concerns the reactions of third parties rather than members of the targeted group. Nevertheless, incitement of hostilities could arise between groups in circumstances where the general community is unaware of the nuances behind such hostilities.</p>
<p>Clause 3 is inappropriate with regard to intimidation. The general community may well be unaware of the intimidatory power of certain words or acts. For example, the word “cockroach” has genocidal connotations amongst the people of Rwanda and Burundi: would that connotation be understood by Australia’s general community?</p>
<p><a href="http://www.smh.com.au/comment/george-brandis-racial-discrimination-act-changes-create-the-whitest-piece-of-proposed-legislation-ive-encountered-20140327-zqnea.html">Waleed Aly</a> has eloquently aimed fire at clause 3. He persuasively argues that Clause 3 ensures that the standards of white people will essentially decide whether racial minorities should properly feel intimidated on a racial basis. The hypothetical reasonable person within the group that experiences the least racial intimidation and vilification will set this standard on behalf of those who are far more likely to have such experiences. In Aly’s words, “protection from racism becomes a gift from the majority”.</p>
<p><strong>Clause 4</strong></p>
<p>Clause 4 is the sting in the tail. Clause 4 provides a defence to any allegation of vilification or intimidation. It is worth reciting in full.</p>
<blockquote>
<p>This section does not apply to words, sounds, images or writing spoken, broadcast, published or otherwise communicated in the course of participating in the public discussion of any political, social, cultural, religious, artistic, academic or scientific matter.</p>
</blockquote>
<p>Clause 4 replaces <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">s. 18D</a>. Section 18D currently provides an exemption for similar acts, but only when done “reasonably and in good faith”. Bolt failed to benefit from s18D as the judge found his columns were neither reasonable nor written in good faith. The judge was influenced by the scathing manner of the columns and, in particular, their multiple <a href="http://www.theage.com.au/victoria/andrew-bolt-australias-least-accurate-columnist-20111001-1l2zl.html">inaccuracies</a>. </p>
<p>Indeed, it is fair to speculate that Bolt’s columns breached the law of <a href="http://www.theage.com.au/federal-politics/political-opinion/in-black-and-white-andrew-bolt-trifled-with-the-facts-20110928-1kxba.html">defamation</a> as well as s 18C.</p>
<p>Bolt would be safe under Clause 4. Clause 4 contains no requirements of reasonableness or good faith. Therefore, it seems to provide a defence for anything written or broadcast in the mainstream media, and probably any blog. Numerous tweets may be fine too. Preachers would be able to pronounce intimidation and hate from the pulpit, as could academics and teachers in the classroom. Artists could provoke intimidation and hate in public performances and displays. </p>
<p>Indeed, racist personal disputes that erupt beyond the private domain, or random extreme verbal attacks, may remain all that is caught within the racial vilification net. Yet one can hardly doubt the potential power and harm of intimidation and hate which might pour forth in the many public spheres protected under clause 4.</p>
<p>Waleed Aly argues that the defence may go even further. He states:</p>
<blockquote>
<p>Precisely how it is possible to racially vilify someone without discussing a “social” matter is beyond me.</p>
</blockquote>
<h2>Prediction: a backdown</h2>
<p>I do not believe that this exposure draft will survive, especially the extraordinarily broad exemption in clause 4. Government MPs seem eager to point out that the exposure draft has been released for extensive <a href="http://www.ag.gov.au/Consultations/Pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx">public consultation</a> before being finalised, signalling the likelihood of change. </p>
<p>It may not in fact be politically possible to enact or even introduce a law that ensures no repeat of the Bolt case, given the extensive findings against the columnist in that case. Senator George Brandis may find that he cannot satisfy those unruly constituents, Bolt and the IPA, with his first order of business.</p>
<p>** this sentence was altered on 5/4/14 after online discussion with Luke Pearson.</p><img src="https://counter.theconversation.com/content/24946/count.gif" alt="The Conversation" width="1" height="1" />
Poor George Brandis. Our Attorney-General seems to have wedged himself on the issue of racial vilification. Soon after the election of the Abbott government, Senator Brandis defiantly declared that repeal…Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/246942014-03-22T00:22:29Z2014-03-22T00:22:29ZThe Biennale boycott blues<figure><img src="https://images.theconversation.com/files/44471/original/pv5j2g2r-1395447380.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption"></span> <span class="attribution"><span class="source">AAP/Quentin Jones</span></span></figcaption></figure><figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/44471/original/pv5j2g2r-1395447380.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/44471/original/pv5j2g2r-1395447380.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/44471/original/pv5j2g2r-1395447380.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/44471/original/pv5j2g2r-1395447380.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/44471/original/pv5j2g2r-1395447380.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/44471/original/pv5j2g2r-1395447380.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/44471/original/pv5j2g2r-1395447380.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p>The <a href="http://www.biennaleofsydney.com.au/">Sydney Biennale</a> has commenced after weeks of controversy over the severing of its relationship with Transfield, the company that runs the detention centre in Nauru and which will take over the one at Manus island.</p>
<p>To recap, several artists withdrew from the Biennale in protest over its sponsorship arrangement with Transfield due to the latter’s involvement in offshore detention of asylum-seekers. Activists also put pressure on the Biennale. The Biennale eventually severed ties with the company, and Luca Belgiorno-Nettis, whose father founded Transfield and also helped found the Biennale, stepped down as the Biennale chairman. </p>
<p>The federal government has since weighed in. Malcolm Turnbull described the actions of the boycotting artists as “vicious ingratitude” before Arts Minister George Brandis upped the ante considerably. Brandis has written to the Australia Council, the federal body in charge of arts funding, asking that it develop a policy to refuse federal funding to any arts body which “unreasonably” refuses private funding.</p>
<p>Phew! So … what to make of all this. Below are my thoughts on the Biennale boycott.</p>
<h2>Transfield and the corporate veil</h2>
<p>The private companies <a href="http://www.transfield.com.au/">Transfield Holdings</a> and the <a href="http://www.transfieldfoundation.org/">Transfield Foundation</a>, are not the same thing as the entity which runs and profits from offshore detention, the public company <a href="http://www.transfieldservices.com/">Transfield Services</a>. Luca Belgiorno Nettis is an <a href="http://www.transfield.com.au/luca-belgiorno-nettis-am">executive</a> of Transfield Holdings, the company his father founded decades ago.</p>
<p>Transfield Holdings owns 12% of Transfield Services. It is apparently the second biggest shareholder in the latter company. 12% is a very sizeable shareholding in any public company, so it is in a position, if it wishes, to exercise some level of control over the actions of the latter. It also benefits considerably when the latter’s share price rises. </p>
<p>The Transfield Foundation is a company which runs the philanthropic activities of both Transfield Holdings and Transfield Services. Its money, therefore, is clearly linked to the profits of Transfield Services.</p>
<p>Arguments about targeting the wrong entity within Transfield make sense from a legal point of view. In law, they are separate entities. But the legal fiction that corporations are separated by a corporate veil cannot automatically be translated into a social fiction. In any case, the name “Transfield” conveys a certain meaning to the public, most obviously the public company that runs the detention centres.</p>
<h2>Is Transfield Services doing anything wrong?</h2>
<p>Transfield Services has won contracts to run Australia’s offshore detention centres. Offshore processing is probably legal under Australian law. In fact, it is the policy of both major political parties. So, it is arguable that Transfield is not doing anything wrong, and any disapproval of its relationship to the Biennale is a misguided tantrum.</p>
<p>Modern social expectations dictate that <a href="http://www.ohchr.org/Documents/Issues/Business/RtRInterpretativeGuide.pdf">corporations have a responsibility to respect human rights</a>. Respect for human rights does not equate with “legality under a country’s domestic law”. Our offshore detention system breaches human rights. For a start, blanket automatic detention of asylum-seekers amounts to arbitrary detention in breach of Article 9 of the <a href="http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx">International Covenant on Civil and Political rights</a>. </p>
<p>Evidence also indicates that offshore detention in Nauru and Manus is <a href="http://www.smh.com.au/national/asylum-seekers-nothing-to-lose-desperation-on-nauru-20140314-34s04.html">cruel</a>, in breach of both Articles 7 and 10. (The death of <a href="http://www.news.com.au/national/manus-island-riot-how-did-iranian-asylum-seeker-reza-berati-die/story-fncynjr2-1226839986356">Reza Berati</a> may indicate a breach of the right to life in Article 6, though that did not take place under Transfield’s watch).</p>
<p>So it is fair to link Transfield to human rights abuses. It has made a decision to get involved in a system of offshore arbitrary detention and will make considerable profits from that system. It is irrelevant that another company would have won the contract if Transfield had not. Nobody forced Transfield into its decision to bid for the contracts, and like any “person”, its decisions leave it open to consequences. </p>
<p>Here, the consequences for Transfield were the open condemnation of its activities by artists and others, as well as a great deal of publicity about its involvement in detention centres (which I suspect was not welcome).</p>
<h2>Is the boycott inconsistent?</h2>
<p>If Transfield can be targeted, other corporate sponsors might be targeted due to perceived wrongdoing. This argument assumes that many or even most corporations have skeletons in their closet, or even bright public skeletons that are apparent to anyone paying attention. And such an assumption is probably true, especially with multinational companies running multiple businesses in multiple sectors in multiple countries.</p>
<p>Brisbane’s <a href="http://www.brisbanetimes.com.au/queensland/goma-denies-ending-santos-deal-20140320-355sq.html">Gallery of Modern Art</a> is currently being criticised for its association with Santos, due to the latter’s environmental record. So far, the Gallery is staunchly standing beside Santos. Having said that, offshore processing is a particularly “hot” topic in Australia at the moment, so it is perhaps not surprising that Transfield was singled out in this way.</p>
<p>Any boycott can be criticised for inconsistency. Any boycotter can be challenged with the allegation that he or she is boycotting X while ignoring the far worse behaviour of Y. This criticism is commonly made of the Boycott, Divestment and Sanctions (BDS) movement against Israel.</p>
<p>However, taken to its logical end, such an argument indicates that one cannot boycott anything unless one first boycotts and highlights Russian expansion, Syrian aggression, Congolese rape, Sri Lankan impunity, Cambodian corruption and Ugandan homophobia (as possible examples). </p>
<p>There is a descending scale of horribleness before one can legitimately complain about offshore detention centres, and people will rank the horribles in different orders. Such an argument impugns the success of the anti-apartheid movement, given the role played by economic sanctions and boycotts in bringing an end to white minority rule in South Africa. No activist, except perhaps those whose special target is North Korea, can satisfy such scrutiny.</p>
<p>There are many and varied human rights issues in the world and in Australia, and they will all attract some sort of activist constituency. Individuals, alone or in concert, are entitled to compete in the marketplace of ideas in arguing that X or Y should be boycotted, regardless of whether X and Y are “better” than A or B. </p>
<p>One hopes that the strongest arguments prevail, though that is not a certainty. Human rights abuses and complicity in them are not justified by the fact that other human rights abuses are or might be worse. “Tu quoque” is a distraction rather than a valid excuse!</p>
<h2>The Biennale takes government money</h2>
<p>The Biennale continues to take government money rather than Transfield money, when it is undoubtedly true that the Australian government is far more responsible for offshore processing (or non-processing) policies than any company.</p>
<p>Yet public funding cannot be compared to private funding. Public funding comes from the taxpayer.* It is “our money”. If one is to reject public funding based on disapproval of certain government policies, one logically has to reject publicly funded projects such as Medicare and university education. One loses out twice if one is in fact a taxpayer, as one is rejecting the benefits of “good spending” due to disapproval of “bad spending”.</p>
<p>Furthermore, public funding serves a different purpose to philanthropy. The arts are funded as public goods. Corporate philanthropy has an element of quid pro quo: money is donated, and in return the corporation gets a warm and fuzzy brand boost. That is not a criticism of philanthropy: it is a description of it.</p>
<p>In any case, the arts are funded via the Australia Council, which is supposed to operate “at arm’s length”, independent of government interference. It has zero input into the government’s asylum seeker policy. Transfield is much more implicated in that policy than the Australia Council.</p>
<h2>“Vicious ingratitude”</h2>
<p>In making his accusation of “vicious ingratitude”, <a href="http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-denounces-vicious-ingratitude-of-biennale-artists-after-transfield-withdraws-as-sponsor-20140311-34ik6.html">Malcolm Turnbull</a> was perhaps thinking of his own role as a very rich person who enjoys the arts, and probably donates to them. But sponsorship is different to mere donation. </p>
<p>As noted above, there is a quid pro quo for a sponsor. The brand is associated with something “good”, even groovy or funky or posh, such as the arts. Associated perks such as free tickets accrue to employees and clients. </p>
<p>I agree here with the recent statement from the <a href="http://prodcdn.dailyreview.crikey.com.au/wp-content/uploads/2014/03/Biennale-statement.pdf">Biennale artists’ Working Group</a>: Turnbull’s statement “sets up a master-servant relationship that doesn’t reflect what corporate sponsors gain from their relationships with artists and arts organisations”.</p>
<h2>Brandis and “unreasonable” refusal of philanthropic funds</h2>
<p>So we come to the intervention of Arts Minister <a href="http://www.smh.com.au/federal-politics/political-news/george-brandis-defends-funding-moves-to-curb-political-boycotts-in-the-arts-20140314-34q4t.html">George Brandis</a>. First, this intervention might undermine the <a href="http://theconversation.com/the-australia-council-must-hold-firm-on-arms-length-funding-24460">independence of the Australia Council</a>. However, I want to concentrate instead on the broader implications.</p>
<p>News Corp columnist <a href="http://www.theaustralian.com.au/opinion/columnists/biennale-boycott-is-no-more-than-commercial-bullying-in-the-name-of-the-arts/story-fn8qlm5e-1226855113204#mm-premium">Chris Kenny</a> talks of Brandis’s actions as reinforcing freedom of expression? What, the inalienable right to sponsor? The right to inflict a brand against the conscience of an unwilling recipient? Compulsory gratitude is no great win for free expression!</p>
<p>Perhaps Brandis’s intervention is designed to save taxpayer money, as arts bodies should take private funds and save public dollars. Yet the Biennale, to my knowledge, has not asked for the government to make up the shortfall. Certainly, on a case by case basis, it is fair that public funding decisions be partly driven by the viability of an artistic event, and refusal of private funds might impact on that viability.</p>
<p>But that doesn’t justify Brandis’s broadbrush assault on freedom of conscience. Any person has a right to reject an association with a business that he or she disapproves of.</p>
<p>To be fair, Brandis has only threatened withdrawal of government funding. No individual has a right to government funding for their artistic endeavour. But the conditioning of government funding on depoliticised behaviour, and the rejection of personal conscience, is a strange tactic from an Attorney General who is openly committed to “freedom”. </p>
<p>This sort of government action could lead to a very skewed public debate, where the privately funded can express opinions freely, but the publicly funded are more muzzled. In any case, art should be opinionated and brash, not craven and cowed.</p>
<p>Finally, Brandis’s suggestion may be a tad hyprocritical, given that the <a href="http://www.abc.net.au/news/2013-08-22/liberal-party-kicks-habit-on-tobacco-industry-donations/4905366">Liberal Party</a>, which receives certain amounts of public funding, rejects donations from tobacco companies, which operate a perfectly legal (but toxic) business.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/44472/original/ftjnk5yd-1395447499.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/44472/original/ftjnk5yd-1395447499.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=418&fit=crop&dpr=1 600w, https://images.theconversation.com/files/44472/original/ftjnk5yd-1395447499.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=418&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/44472/original/ftjnk5yd-1395447499.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=418&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/44472/original/ftjnk5yd-1395447499.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=526&fit=crop&dpr=1 754w, https://images.theconversation.com/files/44472/original/ftjnk5yd-1395447499.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=526&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/44472/original/ftjnk5yd-1395447499.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=526&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">AAP/Ehssan Veiszadeh</span></span>
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</figure>
<h2>The right not to boycott</h2>
<p>In resigning as Chair, <a href="http://www.dailytelegraph.com.au/entertainment/arts/biennale-of-sydney-future-in-doubt-as-chairman-luca-belgiornonettis-resigns-over-disputed-links-to-detention-centres/story-fniv7r7y-1226848360250">Luca Belgiorno-Nettis</a> talked of harassment of himself, the Biennale organisers, and I have heard talk on Twitter of harassment of non-boycotting artists. </p>
<p>I do not believe that anyone is suggesting that the boycotting artists engaged in such harassment. However, it is certainly possible that some harassment occurred.** Unfortunately, it is not always possible to prevent the misguidedly overenthusiastic from crossing the line into bullying and harassment, especially in this age of social medial.</p>
<p>People have a right to engage in a boycott, especially for reasons of conscience. It is also important to respect the right not to participate in or support a boycott.</p>
<h2>Effectiveness of the boycott</h2>
<p>The most common criticism of the boycott is that it has not been, and was never likely to be, effective. Offshore detention will continue as bipartisan policy for the foreseeable future, and Transfield will not terminate its Nauru and Manus contracts.</p>
<p>However, there is no “effectiveness” criterion for legitimate political action. Otherwise the opportunities for political action from the non-powerful are very limited indeed. Political action can be seen as means to an end, but also an end in itself, as an expression of the artists’ conscience in this case. </p>
<p>Furthermore, the boycott may be part of a long game. Transfield is already being targeted through the lobbying of <a href="http://australia.isidewith.com/news/article/australian-services-union-calls-on-hesta-to-divest-funds-from-tr">industry pension funds</a>. Those funds may or may not respond: so be it.</p>
<p>It may even be that the boycott is counterproductive, in the sense that <a href="http://www.smh.com.au/entertainment/art-and-design/biennale-of-sydney-facing-uncertain-future-after-severing-ties-with-transfield-20140307-34cl1.html">the future of the Biennale</a> in particular and corporate philanthropy in general may be threatened. This scenario strikes me as bit doomsday, but only time will tell. Like Transfield, the Biennale boycotters must also live with the consequences of their decisions.</p>
<p>A related criticism is that more effective and constructive protest actions were available. For example, the artists could have highlighted the injustices of offshore detention and even Transfield’s involvement through their art. Maybe. But, as my friend Brynn O’Brien has pointed out, such an approach smacks of “approved protest” in a “sanctioned space”, as opposed to unwieldy unpredictable protest which has clearly made Transfield and the government feel pretty uncomfortable.</p>
<p>Finally, given the extraordinary reaction from the government, it seems clear the Biennale boycott got under its skin. Otherwise, why the rush to try to shut down repeats of such action? Which means it may have had considerable effect. After all, weeks later many are still talking about it and discussing it and thinking about it. And I suspect that more people are going to pour through those Biennale doors.</p>
<ul>
<li><ul>
<li><em>My discussion at this point is influenced by a great Twitter discussion with Brynn O’Brien and Sean Mulcahy, which is “storified” <a href="http://storify.com/brynnobrien/our-money">here</a>.</em></li>
</ul></li>
<li><p>** I altered this paragraph on 25/3 as the original assertion of a belief that harassment had occurred was based on hearsay, especially on twitter. Furthermore, regarding the right not to boycott (and frankly the right to boycott): no one is free of attempted persuasion or even criticism. However, such activities should not cross a line into actual harassment and bullying. </p></li>
</ul>
<hr>
<p><em>This piece was first published at the Castan Centre for Human Rights’ <a href="http://castancentre.com/2014/03/21/the-biennale-boycott-blues/">blog</a>.</em></p><img src="https://counter.theconversation.com/content/24694/count.gif" alt="The Conversation" width="1" height="1" />
The Sydney Biennale has commenced after weeks of controversy over the severing of its relationship with Transfield, the company that runs the detention centre in Nauru and which will take over the one…Sarah Joseph, Director, Castan Centre for Human Rights Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.