Dr Cynthia Banham – Indignation not engagement-Australia’s response

Profile Cynthia Banham

Indignation, not engagement: Australia’s response to international criticism of asylum seeker detention by Dr Cynthia Banham, Centre for International Governance and Justice. Reprinted by Special Permission of Regarding Rights

The Abbott government’s recent outrage at the United Nations over a finding by the Special Rapporteur on torture that Australia’s asylum seeker policies violate international law has a very familiar ring.

Thirteen years ago, I was a journalist reporting on immigration in the Federal Parliamentary Press Gallery. I can recall a Howard government press secretary handing me a multiple page document pointing out all the “errors” in a critical report by an advisor to the UN Commissioner for Human Rights about conditions inside Woomera, one of Australia’s notoriously harsh mainland asylum seeker detention centres (now closed). Some of them were spelling mistakes.

Fast-forward to last week, and we see Prime Minister Tony Abbott react with indignation to a report by Juan Mendez, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

The report, prepared for submission to the UN Human Rights Council, found that a number of aspects of the government’s policies breached Australia’s international law obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). They included:

  • The detention of asylum seekers at Australia’s regional processing centres on Manus Island and Nauru, including children, as well as the indefinite detention of some asylum seekers and the conditions at the facilities, which have been marked by escalating violence (in breach of Articles 1 and 16);
  • The failure to adequately respond to allegations two asylum seekers on Manus Island were subject to intimidation and ill-treatment in February 2014 (in breach of Articles 1 and 16); and
  • Recent laws giving the federal government new powers to detain and return asylum seekers intercepted at sea, without access to legal assistance (in breach of Article 3).

Prime Minister Abbott’s response was to call the report’s findings “bizarre”.

“I think it is ‘torture’ no less, that we were accused of inflicting on people,” he told radio broadcaster Alan Jones. “Well, this is really bizarre, Alan, absolutely bizarre.”

The Prime Minister then accused the Special Rapporteur of not bothering to get a “proper response” from the government, and of accepting as “gospel truth” everything “the usual suspects, the usual human rights activists” said regarding Australia’s asylum seeker policies. This is despite the fact that Professor Mendez’s report refers to correspondence with the government and notes it was, in some cases, inadequate.

Australians, Prime Minister Abbott also said, were “sick of being lectured to by the United Nations.”

I note here that that the regional processing centre on Manus Island was re-opened by the Labor government of Julia Gillard in 2012. I also note that many supporters of the Abbott government have complained that some human rights advocates were less critical of Australia’s treatment of asylum seekers while Labor was in power.

Notwithstanding these points, the Prime Minister’s response jars for many reasons.

For one thing, it completely brushes aside the substance of the report’s findings that Australia’s treatment of asylum seekers might be in contravention of international legal obligations the country willingly undertook when it ratified CAT in 1989.

Mendez’s concerns have not been conjured up, as many Australians would recognise. Most people are aware of reports over the last couple of years of violence in offshore detention centres, and are familiar with the deep concerns of psychologists about the mental health of children kept for long periods in detention.

Yet there is no attempt by the Prime Minister or the government to engage in any meaningful way with the Special Rapporteur’s findings that the policies at the heart of these problems conflict with Australia’s international legal obligations. Instead, the Prime Minister relies on the government’s well-rehearsed justification for its asylum seeker policies – that the ends (stopping the boats) justifies the means (the deterrent effect of conditions of detention so harsh they breach Australia’s obligations to prevent individuals from being subject to torture or acts of cruel, inhuman or degrading treatment).

This utilitarian argument underpins Prime Minister Abbott’s comment that “the best thing that you can do to ensure that the best values of our world are realised is to stop the boats and that’s exactly what we have done. … We have stopped the boats and I think the UN’s representatives would have a lot more credibility if they were to give some credit to the Australian Government for what we’ve been able to achieve in this area.”

Minister Abbott’s response to the UN Special Rapporteur’s report is difficult to accept for other reasons as well.

There is the uncomfortable hypocrisy in criticising the UN and its representatives for lecturing Australians, while at other times, when it has suited our political leaders’ and our nation’s interests, Australia has been very keen to have the UN do just that to other countries. When Australians were killed in the Malaysian Airlines Flights MH17 disaster, for example, the Abbott government invested great effort in securing a UN Security Council resolution demanding an investigation into the shooting down of the aircraft over the Ukraine.

Furthermore, Prime Minister Abbott’s response suggests our government, in thumbing its nose at UN criticism of its asylum seeker policies, completely ignores the consequences this must have for the loss of Australia’s moral authority on human rights in the region (seehere for an insightful piece on the regional ramifications of Australia’s asylum seeker policies).

Why does this all sound so familiar?

I mentioned that back in 2002, Justice Prafullachandra Bhagwati, a regional advisor to the UN Commissioner for Human Rights, issued a report in which he found that the treatment of children in detention, in particular, breached Australia’s international law obligations.

The government at the time responded with similar outrage to today, saying the report was “fundamentally flawed”, that it lacked objectivity and contained “emotive descriptions”, and that the former Chief Justice of the Supreme Court of India had strayed from his mandate. Perhaps most interestingly, Justice Bhagwati was criticised by the Australian government for having “simply taken on board a whole lot of criticisms from activists after spending just one day in Woomera”.

Rather than engage with the substantive issues, Australian political leaders thirteen years ago chose instead to try and discredit the process – the way the report was written, the way its findings were reached.

Similarly, among the criticisms directed today at Professor Mendez, a professor of human rights law at the American University Washington College of Law, is that he reached his conclusions after accepting the claims of activists (such as the Australian Human Rights Law Centre) without hearings or independent investigation of facts.

What is missing from this picture is a failure by the government to be honest and open with the Australian public about how UN human rights processes work. States, very often, don’t like their internal politics and policies being scrutinised by external bodies. Australia is no exception: the Abbott government has been notoriously secretive about its asylum seeker policies (recall, for example, the former Immigration Minister Scott Morrison’s decision 12 months ago, at the height of the controversy over Australia’s turning back of boats at sea, to implement a policy of “secrecy with a purpose” to protect its border protection operations). The effectiveness, therefore, of the UN international human rights system often relies on NGOs, advocates and activists–the “usual suspects”–bringing matters of human rights concern to international attention. Such civil society organisations have a legitimate and important role in the UN international human rights system. How else could it work?

Furthermore, this is a system Australia backs, and wants to be a central part of–for all of Prime Minister Abbott’s criticisms, Australia is currently lobbying for a seat on the Human Rights Council in the 2017 ballot.

Professor Mendez was asked by the ABC about Prime Minister Abbott’s response to his report. “I’m sorry that he considers what we do lecturing,” he replied. “But it is my mission, my duty, to point out when any country, including Australia, falls short of its obligations under international law.”

Australia needs to learn how to live with this reality.

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