Teoh and Human Rights in Australia
Des Hogan of Amnesty International Australia examines the recently rekindled outcry over a Bill that would further diminish the relevance of international human rights treaties in Australia.
Human rights protection in Australia
Many in Australia would be surprised to learn that the Australian Government could legislate tomorrow to remove the right of prisoners not to be tortured for information or a confession. Many would be
surprised to learn that international conventions such as the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is not part of Australian law now and that
you cannot claim rights under it in a court, despite Australia having ratified the treaty in 1989. So if a government official violates any of your treaty rights, including under the Torture
Convention, you cannot challenge it in an Australian court on the basis of the treaty, only under domestic law which may not provide you with proper redress.
Human rights treaties, like the Torture Convention have no place in Australia law, a sad fact which is compounded by the Government decision last August to severely limit appeals from here to UN
committees which monitor these treaties (saying it would ignore “unwarranted” UN requests of Australia).
So when the Government attempted to pass the Administrative Decisions (Effect of International Instruments) (“Teoh”) Bill 1999, in the Senate in late March this year, human rights and
community groups reacted with disbelief and anger. Why?
The “Teoh” Bill
The Teoh Bill was initially introduced in 1995, in response to the High Court decision in the Teoh case, which concerned the question of whether children born in Australia to a Malaysian national
facing deportation had the right to a father under the Convention on the Rights of the Child. A majority of the High Court held that
"if a decision maker proposes to make a decision inconsistent with a legitimate expectation [based on the Convention on the Rights of the Child], procedural fairness requires that the persons
affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course".[1]
The case did not say that the Convention had become a part of Australia law, merely that decision makers should take it into account. The then-Labor Government, however, sensing the threat of human
rights to Australia, considered the case would interfere with the workings of Parliament and introduced the Teoh Bill which would remove any obligation on administrative decision-makers (including
state agents) to take international human rights conventions into account in their decisions.
The Bill was revived by the Coalition Government in 1997 and again in 1999. In July 2000, the UN Human Rights Committee in Geneva, in examining Australia’s Third and Fourth Reports under the
International Covenant on Civil and Political Rights, specifically and unusually requested in paragraph 15 of its Concluding Observations, that the Bill be withdrawn as it would breach Article 2 of
the Covenant.
Most people had thought it had gone away. Certainly the fears expressed in 1995 of a paralysis of government had never been realised. When Amnesty International learnt in late March 2001, that the
Bill was to be debated and voted on in the Senate that week, we decided to take action.
Community response
When Amnesty International learned of the Bill’s imminent debate, our researcher on Australia at the International Secretariat in London was interviewed on ABC Radio’s AM program. As this
interview – which called on Australians to contact their local Senator to prevent the Bill becoming law - was being aired in the early morning of Wednesday 28 March, Amnesty International
Australia was alerted to the situation and immediately organised a rapid response lobbying action across our offices in each State and Territory. Amnesty International members and supporters, other
community groups and concerned individuals telephoned, faxed and emailed their local Senator to seek their opposition to the Bill.
Coalition Senators argued the Bill was necessary to preserve Australia’s sovereignty, Labor Senators criticised the government and argued that amendments they had tabled would preserve human
rights, while the Democrats and minor parties indicated their outright opposition to the Bill as an assault on human rights protection.
Throughout the day, Amnesty International conducted interviews with commercial radio stations, ABC Radio News, Radio National and SBS Radio News. By early afternoon, it became clear that the Labor
amendments were minimal and would only allow human rights be considered through the ‘back door’ of the common law, which would hardly make a difference. Further community pressure saw
Labor issue a press release reiterating the value of their amendments. The Democrats promised they would do all they could to fight the Bill.
The Bill was not debated until the following week, by which time hundreds of petitions and phone calls had winged their way to Senate offices. A wide range of community groups had come out criticising
the Bill and calling for it to be dumped.
The Senate debates – in which the Democrats managed to postpone a vote on the Bill - are instructive to read,[2] in particular, Senator Woodley’s reference to the substantial number of petitions he had received from groups throughout Queensland. Clearly, the huge public response had a big impact, with the parties hoping the controversy would go away.
The use of email, websites, telephone and media interviews allowed the moral argument for the abandonment of the Bill to be made swiftly in a clear and forthright manner which politicians could not
ignore. At the time of writing, however, the Bill is still scheduled for further debate and voting in the Senate, with both major parties still committed to supporting it in its present form, or with
amendments.
The Senate sits for three days at the end of May and then for three weeks in June, at which time the government may try to pass the Bill again. It is therefore incumbent on all of us to be vigilant on
this Bill. For updates, watch the Amnesty International website at www.amnesty.org.au.
The future
The future for human rights in Australia is unclear. At present, while Australian law does protect human rights quite well, there are gaps.
Firstly, international human rights conventions like the Convention on the Rights of the Child, are not a part of Australian law, although Australia has signed and ratified these Conventions. For this
reason, juvenile mandatory sentencing laws which violate the Children's Convention, are still in force. Unlike other common law countries like the United Kingdom, Canada, New Zealand and South
Africa, Australia has no Bill of Rights introducing these Convention rights into local law.
Secondly, when UN human rights committees correctly criticise abuses in Australia – particularly on juvenile justice, Indigenous Australians, refugees and asylum-seekers, the Government says
Australia’s sovereignty is being threatened and announces severe restrictions to the right of individuals to petition these UN Committees.
Thirdly, the threatened introduction of the Teoh Bill means that decision makers and state agents can act without regard to human rights. So the spectre of torture for interrogation or other purposes
being used in Australia in a “war” against drugs or crime, or on grounds of national security, is not as remote as might be thought. And if the government decides to legislate for this,
or to overlook practices of torture that may exist today, who is there to turn to?
How can we speak of the need for China to stop torturing prisoners or for Burma to stop the forced labour of children, when Australia says that it is for governments to decide what human rights they
owe their citizens? Human rights belong to people, not to governments. They are not inevitable, do not happen incidentally; but need to be actively supported and promoted. They can be taken away at a
moment’s notice. Let us ensure this does not happen in Australia.
Des Hogan is Campaign Coordinator at Amnesty International Australia. A solicitor, he previously worked for Amnesty International in Ireland and later at its International Secretariat. He has
undertaken research missions to Bosnia and Burma (Myanmar) and training workshops in Thailand and the Philippines. For more information about Amnesty International please call 1300 300 920 or email campaign@amnesty.org.au
Footnotes
[1] 1994-95 183 CLR 273, see Mason CJ and Deane J at 291 and 292.
[2] The Senate debates 2-5 April 2001 can be found at: http://www.aph.gov.au/hansard/hanssen.htm
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