Complaint Against the Commonwealth
Australia is the currently the subject of a complaint to the United Nations Human Rights Committee by "R", an Indigenous young person sentenced to twelve months imprisonment under the
Northern Territory’s notorious mandatory detention laws. The complaint alleges that his sentence put Australia in breach of its obligations under International Covenant in Civil and
Political Rights. On 15 March 2001, the Attorney-General, Daryl Williams announced that Australia had lodged its Response but refused to release it.[1] On 20 March 2001, Vice-President of DCI-A, Dr Judy Cashmore, wrote to the Attorney in the following terms
I write on behalf of Defence for Children International (Australia) to express our serious concern in relation to both the form and content of the Commonwealth Government’s Response in the above
matter (‘the Response’) to the United Nations Human Rights Committee (‘the Committee’).
The Australian Section of Defence for Children International is the local link in a global chain of children’s rights agencies recognised by the United Nations. While our primary focus is on
children’s rights, we are also concerned about general human rights issues and more particularly with the wider implications arising from the way the Australian Government’s responds to
United Nations Committee reports.
The Commonwealth should publish the Response
DCI Australia is dismayed at the decision not to publish the Response, and urge you to release it immediately.
It is both unnecessary and harmful to keep the Response secret. While there may be information in the Response personal to R which it would not be appropriate to publish, having regard to his
wishes and the Committee’s Rules, it should be a simple matter to edit any such information from a published version of the Response.
We note your assertion on 15 March 2001 that it is ‘normal practice’ not to make Commonwealth submissions public but it is misleading to refer to ‘normal practice’ when the
incidence of Communications originating from Australia pursuant to Article 1 of the ICCPR Optional Protocol is very low.
Whether such a practice is normal or otherwise, however, it is wrong in principle. The proceedings initiated by R’s Communication are quasi-judicial in nature. Substantively, they
arise directly from proceedings litigated in a Court exercising criminal jurisdiction in Australia. Procedurally, they resemble judicial proceedings. Transparency and publicity are hallmarks of
the judicial system. In the absence of well-established exceptional circumstances, such proceedings should be conducted in public. No such exceptional circumstances apply in this case.
Furthermore, the matters the subject of R’s Communication and the Response are of momentous public interest and concern, raising as they do fundamental questions about the administration of the
criminal justice system, the independence of the judiciary, the Australian Federal system, and, in particular, Australia’s compliance with our international human rights obligations.
Our nation has voluntarily assumed those obligations, including the obligation to subject ourselves to the scrutiny of the international community through the Committee when, as in this case, the
occasion arises. Australia has thereby declared itself accountable to the world in relation to our human rights record, as indeed we should. Accordingly, when that record is questioned, we
should give an open and candid account of ourselves, to the complainant, to the Australian people, and to the global community.
Concealment of the Response is contrary to the spirit of the system of accountability established by the Optional Protocol. It invites the inference that the Commonwealth has something to
hide. It raises suspicion at home, and is embarrassing abroad. It also stifles debate.
The following comments on the content of the Response are necessarily tentative and restricted, because they are, necessarily, made without having had an opportunity to read the Response.
The Commonwealth should state its view on the mandatory detention laws
You stated on 15 March 2001 that ‘[t]he question is not whether the Federal Government or the Committee agrees with mandatory detention laws as a matter of policy.’ While we
acknowledge that strictly and technically speaking, this statement is correct, we nevertheless deplore the Commonwealth’s decision to shrink from clearly and candidly expressing its policy
position with respect to the Northern Territory mandatory detention laws which are the subject of the Communication (‘the mandatory detention laws’).
You and other members of your Government, including the Prime Minister, have on various occasions informally articulated the Commonwealth’s position on this issue. As we understand it,
that position appears to be along the lines of ‘we don’t particularly like these laws, and wouldn’t pass them ourselves, but it’s not up to us’.
If that indeed is the position of the Commonwealth on this matter, then the Commonwealth should now formally say so to the international community. In refusing to address squarely the
fundamental issues of policy and principle raised by the Communication, Australia appears as a nation too squeamish to express its own point of view, and too insecure to risk the consequences of
doing so.
The Commonwealth should accept the admissibility of the Complaint
The principal argument advanced in the Response against the admissibility of the complaint appears to be that domestic remedies have not been exhausted. With respect, we submit that this
argument is disingenuously specious. As Attorney-General, you are well aware that a challenge to the validity of the mandatory detention laws was rejected by the High Court in refusing special
leave to appeal a decision of the Northern Territory Court of Criminal Appeal: Wynbyne v Marshall D174/1997 (21 May 1997).
If the Commonwealth is currently of the view that the decision in Wynbyne was misconceived, or that there is some other reasonably arguable basis on which to challenge the mandatory detention laws,
then it should say so in the Response. The tenor of the Commonwealth’s submissions on the merits of the Communication strongly suggests that the Commonwealth does not currently hold such
a view.
Alternatively, if the Commonwealth is of the view that Wynbyne is good authority for the proposition that the mandatory detention laws are valid in Australian law, then it should not seek to rely on
the empty assertion that R has not appealed his sentence. As you would be well aware, such a step would be an expensive and time-consuming exercise in futility.
The Merits of the Communication
The Response Summary is not sufficiently detailed for us to properly comment on the section dealing with the merit (or lack thereof) of the Communication. Your refusal to publish the Response, as
pointed out above, is a serious matter which we urge you to reconsider.
Footnotes
[1] 'Australia Lodges Response to Mandatory Detention Laws Complaint to the United Nations', Press Release, 15 March 2001.
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