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How can Australia Improve its Record of Compliance with the United Nations Human Rights Petition System?

The Head of La Trobe Law School, Professor Patrick Keyzer, and Dr Darren O’Donovan, who will be joining La Trobe Law School as a Senior Lecturer in May 2016, recently published a co-written book chapter discussing the relationship between Australia and the United Nations Human Rights Committee (UNHRC). The chapter, entitled Visions of a distant millennium’? – The effectiveness of the UN Human Rights Petition System’, is published in the book Access to International Justice, published by Routledge.

O’Donovan and Keyzer’s chapter addresses one of the fundamental problems with the international Human Rights Petition system – compliance and implementation. This issue is highly important because without compliance, access to international justice can be meaningless. Compliance is a particular problem for Australia, which does not have a national Charter of Rights. In this context, victims of human rights abuses have increasingly relied on complaints to the UNHRC as a way of gaining visibility for their claims. However, as the authors highlight, UNHRC decisions that find that Australia has breached its human rights obligations under the International Covenant on Civil and Political Rights (ICCPR) are regularly ignored by Australian Governments, regardless of their political persuasion.

O’Donovan and Keyzer note that for decades Australia has taken an openly defiant stance against UNHRC findings. At times Australia has directly challenged the competence of international tribunals to assess Australian compliance, and announced that it would put forward proposals for reform of the system. By refusing to acknowledge adverse decisions, Australia has ‘starv[ed] the treaty system of the oxygen of publicity’, the authors argue.

O’Donovan and Keyzer detail two decisions of the UNHRC from 2010, Fardon v Australia and Tilman v Australia, to highlight Australia’s bad faith. The cases of Fardon and Tilman concerned legislation in Queensland and New South Wales respectively that allowed the Supreme Court to order the preventive detention of a serious sex offender in prison after the conclusion of their prison term if they were judged to be an unacceptable risk to the community.

In a constitutional challenge filed in the High Court of Australia, Fardon argued that the Queensland law was constitutionally invalid because it authorised a Court to:

  1. order the civil commitment of a person to prison;
  2. order the detention of a person in prison on the basis that they are at risk of reoffending in the future in the absence of a crime, a trial and a conviction;
  3. order the imprisonment of a person in circumstances that did not require the application of established principles relating to civil commitment for mental illness;
  4. order the punishment of a class of prisoners in a manner which is inconsistent with the essential character of a court and inconsistent with the nature of judicial power; and
  5. because the regime subjected a prisoner to double punishment for previous crimes.

A majority of the High Court held (again, in the absence of a national Charter of Human Rights), that the purpose of the legislation was preventative, not punitive (even though the prisoner was returned to prison) and therefore no finding of guilt was required in order for the Court to order that Fardon should continue to be detained.

With domestic remedies now exhausted, counsel for Fardon (and Tillman, who argued that the Fardon case considered functionally-identical legislation) took their case to the UNHRC, filing communications which alleged that, among other things, Fardon and Tillman were being imprisoned arbitrarily contrary to Article 9 of the ICCPR. The UNHRC found in favour of the two men, stating that their continual detention was not proportionate to the aim of protecting the community. The UNHRC believed that there were less invasive means that could be employed to achieve this same aim without violating the rights of Fardon and Tillman.  Australia rejected the UNHRC decisions.

O’Donovan and Keyzer observe ‘that [even] rich, developed, liberal democracies can pursue a policy of deliberate and persistent non-compliance’ to international human rights obligations’.

This concludes part one of the Law and Justice blog post on this contribution to Access to Justice.  In the second part of the post, recommendations by the authors for measures to improve compliance will be considered and discussed.

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