Visit to Australia, 18 October 2016
Good morning ladies and gentlemen,
I would like to begin by warmly thanking the Government of Australia for inviting me to undertake an official mission, which took place from 4 to 18 October. Let me also express my gratitude for its cooperation throughout the visit and extend my gratitude for the cooperation from state and territory governments that I visited during those two weeks.
The objective of my visit was to assess, in the spirit of cooperation and dialogue, the environment in which human rights defenders, the Australian Human Rights Commission and civil society in general organizations operate in the country. Today, I will confine myself to preliminary observations and recommendations on some of the main issues, which will be elaborated in more detail in the report, once I fully review the materials and documents that I have collected during the visit. I will present my final report to the UN Human Rights Council in Geneva, in one of its future sessions.
At the outset, I wish to recall that I am not employed by United Nations and the position I hold is honorary. As an independent expert, I exercise my professional and impartial judgement and report directly to the Human Rights Council and the General Assembly.
I am grateful for the opportunity of meeting with high-level representatives of various federal and state ministries and institutions. I had a chance to meet with a wide range of human rights defenders in Sydney, Canberra, Hobart, Darwin, Melbourne and Brisbane. I would like to thank everyone who took the time to meet with me and shared their valuable experiences and insights as well as those who helped in organizing this visit.
This is the first visit of this mandate to Australia, a country which is reputed for its continuous engagement in human rights at the international level, including with UN human rights mechanisms. Australia has been a staunch supporter of national human rights institutions in Asia and around the world. It has also campaigned for its election to the Human Rights Council for the period of 2018-2020.
While I recognize Australia’s traditional safeguards of constitutional democracy and rule of law, I note that my initial expectation from the first fact-finding visit was to encounter only laudable implementation of the State’s obligations under international human rights laws, aimed at ensuring a safe and enabling environment for human rights defenders.
Instead, I was astonished to observe mounting evidence of a range of accumulative measures that have levied enormous pressure on Australian civil society. I was surprised to observe the increasing discrepancy and the lack of coherence between Government’s external pronouncements and implementation of human rights obligations internally. While Australia actively campaigns at international level for an important resolution in support for national human rights institutions, the Australian Commission on Human Rights and its President were vilified by senior officials and undermined financially at home. While Australia is commendably supporting resolutions on human rights defenders at the UN General Assembly and Human Rights Council, Australian activists have been under pressure and often vilified by state officials and media outlets. While Australia has expressed support to the mandates of my two colleagues, the Special Rapporteur on freedom of expression and Special Rapporteur on freedom of peaceful assembly and association, civil society organizations and journalists have raised concerns about unprecedented anti-protested laws and intensification of secrecy laws and practices.
I will explain those challenges in more detail later in my statement. Nevertheless, I wish to emphasize the vibrant and democratic nature of the Australian politics. The free and unconstrained media plays a vital role in the public debate about important issues. The Government has traditionally provided generous support to peak bodies and the Australian Human Rights Commission.
Despite the budgetary constraints facing the country, there is a sense of continued commitment by the Government to supporting civil society.
Australia has a federal governance system, with legislative, executive and judicial powers distributed among the Commonwealth (federation) and six states and two self-governing territories. It is a constitutional democracy with parliamentary system of government. Even though the 1900 Australian Constitution refers to five individual rights, there is no separate bill of rights. Some rights, focusing on non-discrimination, are protected in the form of statutory legislation. In addition, the High Court pronounced that since the Constitution is predicated on a system of ‘representative democracy’, the implied freedom of political communication would invalidate legislation that which infringes on that right, unless necessary to protect other public interest.
In 2009, following extensive public consultations, proposals were made to include rights expressly in a Commonwealth Human Rights Charter, but they were consequently rejected by the Government. Instead, a new “Australian Human Rights Framework” was adopted focusing on human rights education and protection, and a parliamentary Joint Committee on Human Rights was established to provide advisory scrutiny of legislation for compliance with Australia’s international human rights obligations under the ratified United Nations human rights treaties. Nevertheless, Victoria State and Australian Capital Territory have enacted separate human rights acts, while Queensland and Tasmania now consider following suit.
Australia is a party to seven core human rights treaties and conventions. In this connection, I encourage the Government to ratify the remaining Optional Protocol of the Convention against Torture and the Convention on All Migrant Workers and Members of Their Families. It should also ratify ILO Convention No. 169 and guarantee the right to consultation and participation of indigenous communities in decisions at every stage of a project’s life cycle.
Australia’s federal system poses practical challenges in the implementation of Australia’s international human rights obligations. Its commitments under the seven ratified international human rights treaties require domestic legislation in order to have direct application in Australian law.
Despite this, in line with the international human rights law, the primary duty to promote and protect human rights and fundamental freedoms lies with the State. This includes guaranteeing the right of everyone, individually and in association with others, to strive for the protection and realization of human rights. In other words, every one of us has the right to defend all human rights for all. The Australian State is therefore under the obligation to take steps to create necessary conditions, including in the political and legal domains, in order to ensure that everyone in the country can enjoy all those rights and freedoms in practice.
Overall situation of civil society
The objective of my visit was to assess if Australia is ensuring a safe and enabling environment for human rights defenders, its national human rights institution and broader civil society. My general impression from the meetings held with different stakeholders at Commonwealth and States level is not what I had expected. Australia could do better, to formulate and implement a legal and policy framework that would be empowering human rights defenders. My predecessor’s 2013 report to the Human Rights Council could guide the Government in identifying a series of laws, policies and practices that States should put in place to protect and support defenders.
While Australia is renowned for its vibrant and diverse civil society, the broad support of the government to CSOs seems to be far from what is expected in terms of empowerment and consultation, funding and recognition of its important role. General observation from extensive discussions with human rights defenders across the country point to a “chilling effect” of the combined measures including the lack of meaningful consultations on government decisions; funding cuts; general government’s antipathy of advocacy; “gagging clauses” in funding agreements; secrecy laws and the stifling Border Force Act; undermining the AHRC and vilifying human rights defenders. Many activists spoke of an atmosphere of fear, censorship and retaliation. Several defenders preferred not to meet with me because of the fear of retaliation or persecution for disclosing information.
The right to free, prior and informed consent of the indigenous peoples is not protected under Australian law and the Government’s lip-service to consultation with civil society has been noted in almost all meetings with defenders promoting the rights of refugees, indigenous peoples and environment. While consultations are held by the Government, information is not sufficiently shared, or no follow up is ensure on past agreements, or officials simply choose the preferred individuals and organizations to consult with. Lack of consultation puts indigenous communities and defenders at a severe disadvantage.
The broad issue of funding has been a constant theme of concern and discussion with all actors encountered during the mission.
While I note that the cuts have been affecting all public institutions, the decision on the degree of cuts, complete defunding or suspension of funding to peak bodies has been perceived as a concerted attempt to target critical organizations and to silence dissenting voices. The funding cuts have had negative impact on those organizations’ ability to carry out their activities in support of vulnerable groups and populations.
The government’s focus on funding has been only on “frontline services”. The introduction of the so-called “gagging clauses” in funding agreements with organizations prevents the organizations and their staff of doing any form of advocacy, which is contrary to the principle of a free and democratic society. The High Court has acknowledged that advocacy by community organizations is a vital part of the nation’s political communications that are, in turn, “an indispensable incident” of Australia’s constitutional system and that contribute to public welfare. Nonetheless, advocacy is seen by the Government and its officials as political opposition to the Government. During the course of my mission, I have met with community organizations that run indigenous legal centers, homeless shelters, women’s refuges, childcare facilities, and their profound knowledge of their sector makes them extremely valuable source of expertise. The role for those advocacy organizations should therefore be recognized by all political actors and media as important feedback and source of specialist community expertise, necessary for public policy that the government could regularly draw on.
Broad concerns have also been expressed by many peak bodies and organizations about sustainable funding to independent CSOs. Short-term and project contracts limit the possibility for mid or long term planning of their activities and threaten the ability of their staff for long term assignment.
I have also heard of specific cases when government authorities discourage human rights defenders from using official funds for participating in the UN forums. This seems to be linked to the sensitivity towards potential criticism of the Government’s policies at the international level.
During my mission, I have heard testimonies of women human rights defenders who have received threats on social media as a result of their advocacy in support of women who are exposed to vulnerabilities as single mothers, living in poverty or survivors of domestic violence. Increasingly women rights peak bodies are facing funding constraints, increasingly leaving grassroots women organizations without a national voice and a significantly weakened situation for women rights advocates at the national level.
The Declaration on Human Rights Defenders (HRDs) recognizes the important role of women defenders who work in the defense of women’s rights or on gender and outlines relevant rights of all HRDs and obligations. Women defenders are subject to the same types of risks as any human rights defender, but as women, they are also targeted for or exposed to gender-specific threats and gender-specific violence. The reasons behind the targeting of women human rights defenders are multi-faceted and complex, and depend on the specific context in which the individual defender is working in. Prompt investigation of intimidation, threats, violence and other abuses against women human rights defenders, whether committed by State or non-State actors, is important.
The use of social media has empowered women in many ways. However, there is also an undesirable result of abuses and threats expressed through the social media. I heard testimonies when such postings become very personal and at times it touches children. It appears the most horrifying digital abuse is reserved for women with high visibility, who speak out or those deemed to be feminist. The remedies have lagged behind the abuse and the process of triggering follow up by police is often ineffective.
Freedom of expression
Freedom of expression and press freedom are not only key elements of a vibrant democracy but also vital components of a healthy civil society. Through exercising free speech, journalists and human rights defenders can ensure free flow of information, inform the public about social matters, and strengthen transparency and accountability in government.
However, during my visit I have observed that new laws and policies have often increased secrecy provisions, particularly in the areas of immigration and national security. Under international law, free speech may only be constrained where it is reasonable, proportionate and necessary, either to protect the rights or reputation of others, or to protect national security, public order or public health.
Human rights defenders and journalists have a right to seek information about governmental activities, and such information should be accessible unless there is specified protection need. Australia however has hundreds of secrecy laws that unnecessarily restrict access to government information. Section 70 of the Crimes Act has a broad prohibition for public servants and contractors to disclose government information in breach of confidentiality obligations, which is punishable with 2 years of imprisonment. Section 79 of the Act criminalizes the receipt of “unauthorized” information, which is of potential concern to journalists.
The Australian Law Reform Commission recommended in 2010 to reduce the scope of secrecy laws so that disclosures are considered to be unlawful if they harm essential public interests. However, the recommendation has not been implemented by the Government. Instead secrecy provisions have been reinforced, including through the controversial Australian Border Force Act. The Act makes it a criminal offence, punishable by two years’ imprisonment, for a broadly-defined “entrusted person” to make record or disclose “protected information”, which was obtained by a person in his/her capacity of “entrusted person”.
Related provisions further threaten human rights defenders, journalists and others who abet, counsel or procure unlawful disclosure.
The cumulative factor of such laws has created significant barriers to legitimate whistleblowing on human rights abuses or misconduct in government activities. It has also led to a worrying trend of pressures exerted by the Government on civil society through intimidation and persecution. I have received credible reports of doctors, child protection officers and even academicians who have suffered.
I am aware of exemptions provided for disclosures required by law or to prevent or lessen a serious threat to individual life or health. There is also limited protection to whistleblowers under the Public Interest Disclosure Act, which requires substantive improvements in terms of awareness, training and implementation. It is clear however that many potential whistleblowers will not take the risk of disclosing because of the complexity of the laws, severity and scope of the penalty, and extremely hostile approach by the Government and media to whistleblowers.
Secrecy laws in the area of national security have also been expanded through the adoption of section 35P of the Australian Special Intelligence Operation Act, which bans disclosure of information related to an ASIO “special intelligence operation” with the penalty ranging from five to ten years’ imprisonment. Given the overall secrecy of intelligence operations and without confirmation from ASIO, it is challenging for journalists to determine if an activity of interest would be a special intelligence operation. Due to the high risks, the provision may lead to self-censorship by the media that will take a more cautious approach to reporting on ASIO’s activities.
The Parliamentary Joint Committee on Human Rights advised that the section 35P was not a reasonable, necessary and proportionate limitation on the right to freedom of expression. The Independent National Security Monitor urged the section 35P to be redrafted as it creates a “chilling effect” and uncertainty as to what may be published about the activities of ASIO without fear of prosecution, and that journalists are prohibited from publishing anywhere at any time any information relating to a special intelligence operation, regardless of whether it has any operational or continuing significance and even if it discloses reprehensible conduct by ASIO insiders.
Furthermore, the new national security laws, dealing with a data-retention scheme to retain metadata for two years, have had serious implications for journalists and whistleblowers. They have mandated the stockpiling of huge rafts of metadata of individuals, reportedly giving law enforcement agencies the means to identify journalists’ confidential sources. I have heard numerous testimonies from journalists that it has had a cumulatively constraining impact on the Australian media’s freedom to inform the public and hold government accountable, as well as has dampened confidence of whistleblowers to engage with the press to that effect.
Access to information is a critical element of freedom of expression. However, there is reported antipathy among some public servants towards the Freedom of Information provisions, due in part to a lack of resources dedicated to meeting FoI applications but also a general fear of what exposure of information may mean. This antagonism is becoming more widespread and increasingly public to the extent that FoI laws are being described as “pernicious”.
Furthermore, human rights defenders, journalists and lawyers filing FoI applications have reported significant challenges in obtaining the requested information. Increasingly, those applications are immediately denied, triggering an appeal process, or delayed up to 3 to 6 months, granted with substantially redacted material or demanded to pay huge costs for the requested information, resulting in non-pursuit of the initial request.
In 2014, the Government introduced the Freedom of Information Amendment (New Arrangements) Bill, proposing the closure of the Office of the Australian Information Commissioner. Due to the inability to get the bill passed in the Senate, the Information Commissioner is still functioning. However since 2015 the organization’s functions of advice, reporting and FOI merits reviews and complaints were redistributed among three other government agencies, the Attorney-General’s Department, Administrative Appeals Tribunal and Ombudsman. Costs of administering the privacy and FOI functions have been shared across those agencies. While, reportedly Australian Human Rights Commission has had to part with around 5,5 million AUD from its annual budget. Despite this, Government senior officials continued to publicly state their intention to abolish the Office of Australian Information Commissioner.
The Government’s approach to freedom of information ranging from lukewarm acceptance to active antipathy is surprising, given its vocal commitment to finalize its membership of the Open Government Partnership by developing a two-year plan of reform commitments consistent with the goals of the Partnership. I reiterate that those goals are aimed at promoting transparency, empowering citizens, fighting corruption and harnessing new technologies to strengthen governance. I urge the Government to adopt a more supportive position to ensuring freedom of information in the country.
Freedom of assembly
Freedom of peaceful assembly is an essential part of democratic societies. Demonstrations and protests help raise awareness about human rights and encourage dialogue on social concerns and environmental, labour or economic issues. Australia can be proud of its history of successful protest movements triggering many political, social and environmental advances. This has included some important labour-related achievements, universal voting rights, reconciliation progress towards the recognition of the indigenous peoples’ historic injustices, and environmental movement in defence of the Franklin River from a dam.
Despite this, it is alarming to observe the increasing trend by State governments to constrain the exercise of this fundamental freedom through what essentially is anti-protest legislation. Jointly with other fellow UN experts, I have conveyed repeated concerns to the Australian Government that such laws would contravene Australia’s international obligations under international human rights law, including the rights to freedom of expression as well as peaceful assembly. The proposed laws would criminalize a wide range of legitimate conduct by determining them as “disrupting” business operations, physically preventing a lawful activity or possessing an object for the purpose of preventing a lawful activity. Peaceful civil disobedience and any non-violent direct action could be characterized as disruption and “physically preventing a lawful activity”, and thus become criminalized. The sanctions carry hefty fines or penalties of imprisonment of up to two years.
While the bill is still under consideration of the Legislative Assembly of Western Australia, the Tasmanian Government has regrettably enacted it through the Workplaces (Protection from Protesters) Act in 2014. Since the adoption, the Act has unjustifiably targeted environmental protestors in Tasmania, the birthplace of the first green party in the world. I have met a number of environmental defenders in Hobart who were charged under this law, and could discern a sense of bewilderment and indignation among civil society of the law’s arbitrariness and unfairness. I am concerned about the implementation of the law, and its impact on the exercise of the freedom to peaceful assembly by environmental and indigenous activists, trying to raise awareness of key environmental and land rights issues.
From my discussions with the Tasmanian Government, it has become clear that the Government had prioritized business and government resource interests over the democratic rights of individuals to peacefully protest. I reminded the Government that human rights defenders have a legitimate right to promote and protect all human rights, including the right to a healthy environment, regardless of whether their peaceful activities are seen by some as frustrating development projects. I therefore recommend that the laws criminalizing peaceful protests are urgently reviewed and rescinded.
Furthermore, the parliament in New South Wales also passed the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act in March 2016, creating a new offence of “aggravated unlawful entry on enclosed lands,” extending an existing offence of intentionally or recklessly interfering with a mine, which carries a penalty of up to seven years in jail. In addition, I am also concerned about the potential impact of event-specific legislations, such as G20 (Safety and Security) Act 2013, which may have not reached the balance of proportionality and have deterred Queenslanders from gathering peacefully to express their views on important issues that were at stake during the G20 Summit in November 2014.
Access to justice
Access to justice and independent judiciary are vital to the functioning of civil society and human rights defenders. Australia’s constitution guarantees independence of the judiciary from other arms of government. In interpreting and applying the law, judges act independently and without interference from the Parliament or the Executive. The guarantees of tenure and remuneration assist in securing judicial independence. I have heard many testimonies from human rights defenders indicating their confidence in the overall independence of the judiciary, which provides remedy to violations of their rights and of those individuals who they represent.
However, those fundamental tenets of the rule law have recently faced challenges in Australia. The Government has sought to prevent the courts from reviewing important decisions in the politically charged area of immigration, and it has tried to limit access to environmental organizations seeking to enforce environmental laws in court.
In addition to the intensification of secrecy laws, Australia’s migration laws have made it difficult for individuals to seek judicial review of government decisions due to “privative” clauses and personal non-compellable discretions delegated to the minister.
Furthermore, the Government is reportedly seeking to grant officers in immigration detention centres immunity from criminal and civil liability for the exercise of reasonable force in good faith. Human rights lawyers find increasingly challenging to represent their clients’ interests, when such government are increasingly exempted from judicial scrutiny.
The Government has also tried to block environmental groups’ access to the courts under the key federal environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (“EPBC Act”). In August 2015, the Government introduced a bill – the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 – to repeal its section 487, which allows individuals and organizations who have engaged in environmental or conservation activities for at least two years prior to the decision at issue to challenge that decision. When introducing the bill, vitriolic language has been used by Government officials to unjustifiably describe the section as a “provision that allows radical green activists to engage in vigilante litigation to stop important economic projects” and that it “provides a red carpet for radical activists”.
The language was particularly unfortunate because the Australian Law Reform Commission has repeatedly recommended that wider and more liberal standing rules should be adopted for public interest litigation across Australia. Liberal availability of the right to standing should be available for judicial as well as for administrative review matters.
The bill was fortunately not passed, and actually lapsed in April 2016. However, senior environment officials reaffirmed that it remains official government policy, and I understand that resource industry lobbyists continue to urge the Government to amend those enabling laws.
Besides the weakening standing rights, the enormous costs and financial risks of litigation present a significant obstacle to pursuing public interest litigation, including for environmental protection. Environmental litigation of any significance is likely to be complicated and expensive. Where broad standing rules are present in environmental litigation, the objective of such rules can be undermined if accessing courts is subject to an adverse costs order. In Australia, “costs follow the event”, so a party that prevails overall on a on a particular case is entitled to obtain their legal costs from the opposite party who have not prevailed.
Despite disparaging pronouncements by some government officials, the threat of an adverse costs order has been a significant obstacle for environmental defenders to pursuing public interest litigation. It is rare for an individual litigant to be prepared to risk financial ruin to pursue such litigation, and smaller community groups may not have sufficient financial resources available to them. Australian Courts have recognised that the public interest nature of litigation in environmental and other cases can be a sufficient basis for exceptional waivers of legal costs. However, those are reportedly exceptional rulings and the consideration of the issue is deferred until the conclusion of the proceedings, causing uncertainty about the costs of litigation.
Community Legal Centres are not-for-profit community-based services, long perceived as stalwart provider of free and accessible legal and related services to hundreds of thousands of people each year. Under the new National Partnership Agreement on Legal Assistance 2015-2020, however, the Centres are nationally facing funding cuts of 12.1 million AUD in 2017-2018, which is a 29% budget cut. After having discussed with various stakeholders and service-recipients, I am worried that the cut will have a significant impact on Community Legal Centres and their staff, as well as highly vulnerable and disadvantaged clients they support. I recommend that the Government reviews budgetary allocations with a view to preventing detrimental effects on legal assistance.
Human rights defender at particular risks
As mentioned earlier, during my visit I have observed mounting evidence of a range of measures that have concurrently levied enormous pressure on Australian civil society. The detrimental measures have included the growing body of statutory laws, both at the federal and state levels, constraining the rights of human rights defenders. They have ranged from intensifying secrecy laws to proliferating anti-protest laws, from the stifling Border Force Act to the “Standing” bill shrinking access to courts for environmentalists.
Those laws have not only accentuated the disparity between Government’s declared commitments at the international forums and their implementation within the country. They have also aggravated the situation of human rights defenders, including specific groups that have been exposed to particular pressure.
The drastic defunding of peak bodies by the Government has particularly targeted civil society organizations that have advocated or litigated on such topical issues as immigration, security, environment and land rights protection. Thus, Environmental Defenders Offices and the National Congress of Australia’s First Peoples have completely been defunded by the Federal Government. Both groups of defenders indicated the funding cut could lead to their closure or, at the very least, would undermine the effectiveness of their grassroots, community-based groups that engage with local and indigenous people and government.
Organizations that continue receiving decreased governmental funds have often to abide by the so-called “gagging” clauses in their funding agreements, instructing them against “lobbying” the Governments or to “engage in public campaigns.” The Government has increasingly stressed a distinction between “frontline services” and “advocacy” work of peak bodies, with the latter function not meriting official funds. To me, such a distinction is rather paradoxical because it is impossible for those organizations to provide direct services to vulnerable populations, without advocating for their rights in that process. And such advocacy should be seen as important feedback for the Government to consider in its formulation of policy approaches to addressing systemic issues.
Despite noticeable achievements made by the Government to support defenders of the rights of the Aboriginal and Torres Strait Islander Peoples, many indigenous human rights defenders still experience severe disadvantages compared with non-indigenous defenders. They are marginalised and unsupported by state and territory governments. This situation is compounded by the tendency of the central government to use the federal system as limitation on its ability to exercise responsibility for supporting indigenous rights defenders. Furthermore, the right to free, prior and informed consent is not protected under Australian law, and government officials frequently fail to meaningfully consult and cooperation with indigenous and community leaders. Indigenous rights defenders also face lack of cooperation or severe pressure from the mining industry with regard to project activities, as has been exemplified in the case of the proposed Carmichael Coal Mine in central-western Queensland.
I was astounded to observe what has become frequent public vilification of rights defenders by senior government officials, in a seeming attempt to discredit, intimidate and discourage them from their legitimate work. The media and business actors have contributed to stigmatization. Environmentalists, trade unionists, whistleblowers and individuals like doctors, teachers, and lawyers protecting the rights of refugees have borne the brunt of the verbal attacks.
In recent years, state and federal governments attempted to undermine the ability of human rights defenders to protect environment through political advocacy and litigation. The targeting of advocacy by environmental organisations could be seen as part of broader intent by the Government to stifle criticism by community organisations. However, it can also be closely linked to government lobbying by the fossil fuel industry, which vehemently opposes the use of strategic litigation by environmental activists. The opposition to environmental defenders have taken the form of funding cuts, threats to the deductible gift recipient status of environmental organisations and efforts to vilify advocacy by environmental organisations.
Those detrimental actions culminated in the governmental initiation of an inquiry by the House of Representatives Standing Committee on the Environment to review environmental organization’s deductible gift recipient status, which allowed donations to such organizations to be tax deductible. The inquiry quickly became politicized by politicians accusing organizations of “using their [DGR] status for political activism.” The Committee issued its recommendations in May 2016, and the Government is considering its response at this stage. I encourage the Government to reject the flawed recommendations of the Committee, proposing new requirements to spend a quarter of donor funds on environmental remediation and introducing unnecessary restrictions on the type of work environmental organizations should conduct.
I also call on government officials and politicians to refrain from attempts to vilify environmentalists, likening them to eco-criminals, traitors and green radicals. Not only those verbal attacks de-legitimize valid environmental concerns in policy debate and protect business interests linked to environmental harm, but they are also not in line with the responsibility of the State to respect the rights of human rights defenders and support their work.
The Australian legal framework that applies to asylum seekers and refugees is rather complex and continuously amended, making it challenging for individuals to understand their rights and the options available to them, without assistance. Lawyers and human rights advocates who assist refugees and asylum seekers in immigration detention in Australia face many barriers. They include situations when detainees are not allowed mobile phones; when telephone calls and visits are hard to arrange to detention centres (particularly Christmas Island Immigration Detention Centre); and detainees are frequently moved and without notice; interpreting services are limited and procedures are frequently changing.
Besides the above-mentioned Border Force Act, the Immigration Department has gone to extraordinary lengths to curb for whistleblowers, public servants or contractors, to share information in the public domain about serious human rights abuses in off-shore detention centres. I have met with such numerous whistleblowers, who validated the stories of service providers whose contracts were cancelled for speaking out in broad terms about what they witnessed.
Other contractors, such as Save the Children, have been subjected to raids and egregious allegations of misconduct, removed from operations and had their personal and professional reputations targeted by politicians and media. Even if an independent investigation into those allegations found no evidence of the organization’s staff acting outside their duties, they were imbued with psychological harm and sense of fear as a result.
Doctors advocating for better treatment and services for detainees in their care, like doctors for refugees, face retaliation if they speak publicly. I have raised concerns with the Government about the cases of seemingly unwarranted arrests and charges brought against defenders. For example, the convenor for the Doctors for Refugees was arrested in November 2015 on the plane for “disobeying flight attendant”, while several other defenders faced similar intimidation in connection to their activism.
During my discussions with government authorities, I was reassured that no prosecution has been executed under the Border Force Act to date. This may well be the case but the Act’s existence and government actions aimed at censoring and intimidating advocates has had a chilling effect on the disclosure of information about violations in off-shore processing. And I have received evidence of significant consequences for blew the whistle. I met several doctors, teachers, lawyers and journalists, who either spoke out or covered conditions in offshore detention places and who have been under heavy surveillance. These concerted efforts to monitor and control any public disclosures about conditions on Nauru stand in sharp contrast to weak and little-known protections provided to whistleblowers according to the Australian law.
I urge the Government to urgently review the Border Force Act’s provisions that seem to be in contravention with human rights principles, including those related to the freedom of expression, and substantially strengthen the Public Interest Disclosure framework to ensure effective protection to whistleblowers.
National human right institution
During the past decade, under the influence of Australia, many States have established or considered creating national institutions of human rights (NHRIs) in the promotion and protection of human rights. NHRI are public organs specifically empowered to promote and protect human rights at the national level. In practice, each of these institutions is very different. However, they share a number of features and basic requirements that allow them to achieve their goal in the most efficient way and as independent as possible. Some of these features are reflected in the "Paris Principles", which define their powers and responsibilities, composition and guarantees of their independence, pluralism and methods of operation. These principles have become the basis and reference for the establishment and functioning of NHRIs in the world.
These institutions shall exercise supervision over public administration, prevent abuse by public bodies and, in general, promote respect for human rights. In some cases, NHRIs have quasi-judicial powers which enable them to receive and consider complaints and petitions concerning individual situations. Their role should be seen as complementary to other established institutions working for the protection and promotion of fundamental rights, such as the judicial and legislative power, parliamentary committees, government agencies and NGOs.
Australia has led with success the discussions at the Human Rights Council on its resolution 27/18 on national human rights institutions, which provides that “ National Human Rights Institutions and their respective members and staff should not face any form of reprisal or intimidation, including political pressure, physical intimidation, harassment or unjustifiable budgetary limitations, as a result of activities undertaken in accordance with their respective mandates, including when taking up individual cases or when reporting on serious or systematic violations in their countries ». The resolution further states that « any cases of alleged reprisal or intimidation against National Human Rights Institutions and their respective members and staff or against individuals who cooperate or seek to cooperate with national human rights institutions should be promptly and thoroughly investigated, with the perpetrators brought to justice.”
While reviewing the role of the Australian Human Rights Commission (AHRC) as a group of human rights defenders, I have been struck by the lack of coherence between the actions of Australia promoting and defending a broader role for NHRIs at the international arena and its direct targeting of its own institution.
I have been at several occasions alerted to government-led or supported harassment of AHRC, taking the form of verbal attacks by politicians and media outlets. The president of the Australian Human Rights Commission, Professor Gillian Triggs, faced Government’s intimidation, which publicly questioned her integrity, impartiality and judgement, following the Commission’s inquiry into the child harm in immigration detention. I have not been informed of any investigations undertaken against the perpetrators of those attacks.
At several occasions alleged efforts to weaken its financial resources and capacity have been brought to my attention. The severe budget cuts have also been amplified by the adjunct of additional functions to the AHRC without proper budget allocation, contrary to what has been the case for other Australian Institutions like the Ombudsman’s office.
I have also noted with concerns the direct appointment of a Commissioner by the Attorney-General without any prior advertisement, transparency, or consultation with the Parliament, contrary to the provisions required by the Paris Principles which questions the attempts of the government to take control of its Human Rights Institution.
This is particularly worrying as the AHRC will be reviewed in the coming weeks by the Sub-Committee on Accreditation, which will examine its compliance with the Paris Principle resolution with a view to reviewing the status of the AHRC.
Australia has a high concentration of media ownership compared to other Western countries. Ownership of national and the newspapers of each capital city are dominated by two corporations, which control the vast majority of media. I have received a number of examples of vilification by media outlets against environmental human rights defenders, depicting them as anti-development or frivolous in their attempt to challenge the large-scale projects by mining companies in different states and territories. Several defenders protecting the rights of refugees or returning from Nauru or PNG have also reported the media’s role in inciting smear campaigns, after they having disclosed information related to the condition of detention in facilities or detention centers.
When the AHRC was under severe pressure from the Government, one could note media coverage that was politically motivated, increasing the pressure levied against the institution.
Trade unionists have also shared with me concerted media campaigns aimed at discrediting their legitimate work and tarnishing their image, when an inquiry was launched by the recently concluded Royal Commission on “Trade Union Governance and Corruption”.
During my meeting in the different States, I have also received numerous testimonies, examples and written submissions on the role of business and resource industry, which indicate a pattern of portraying land owners, environmental human rights defenders and watchdogs as activists who obstruct economic development of the country. Mining and extractive industry has been reported as the most aggressive, sometimes exerting excessive pressure against environmental activists or indigenous peoples trying to protect their land, environment or cultural heritage.
I have met with representatives of the industry and look forward to bringing to their attention details of concrete cases raised during this mission.
I would like to conclude by reiterating my preliminary recommendations to various stakeholders.
The Government of Australia is recommended to:
- Restore an atmosphere of trust and confidence with human rights defenders and consider adopting a national action plan on human rights, through meaningful consultation with civil society;
- Re-visit the results of broad public consultation in 2009 aimed at adopting a federal Human Rights Act and consider formulating such Act to better promote human rights nationally and internalize Australia’s international human rights obligations into domestic jurisdiction;
- Publicly scrutinize and condemn the violations of the rights of human rights defenders and raise awareness of their legitimate role in the protection and promotion of all human rights;
- Ensure sufficient funding and legal assistance to indigenous peoples and environmental human rights defenders in line with human rights standards and the UN Declaration on human rights defenders;
- Guarantee meaningful participation of indigenous human rights defenders and civil society in government decision-making;
- Formulate national action plan on business and human rights and ensure that it, as well as environmental impact assessments, are developed in full transparency and with meaningful participation prior to the granting of permission for development or mining project;
- Ensure prompt and impartial investigations into alleged threats and violence against human rights defenders and trade unionists and bring to justice direct perpetrators and those that participated in the commission of crimes;
- Engage with investors and business enterprises to uphold their human rights responsibilities and sanction those companies associated with violations against defenders, both at home and abroad;
- Ensure a prompt and impartial inquiry into the attempts by public officials to intimidate and undermine the Australian Human Rights Commission and its President;
- Restore adequate funding to the Australian Human Rights Commission, and ensure that future appointment of commissioners is made through public, transparent, merit-based processes that are fully compliant with the Paris Principles.
- Restore adequate operational funding to legal, environmental and indigenous peak bodies and recognize their important role in advocacy and strategic litigation;
- Remove the so-called “gagging clauses” from all Commonwealth and State funding partnership and funding agreements;
- Review and revoke laws that restrictive of the right to freely and peacefully assemble;
- Review secrecy laws, Crimes Act and the Border Force Act with a view to eradicating provisions that are in contravention with international human rights principles.
Business enterprises are recommended to:
- Adopt and implement relevant international human rights standards, including the Guiding Principles for Business and Human Rights and the Voluntary Principles on Security and Human Rights;
- Fulfil legal and ethical obligations, including rigorous human rights due diligence, and perform human rights impact assessments for every project, ensuring full participation by and consultation with affected communities and environmental human rights defenders;
- Refrain from verbal or legal intimidation and attacks against environmental human rights defenders;
- Disclose information related to planned and ongoing large-scale development projects in a timely and accessible manner to affected communities and environmental human rights defenders;
- Establish grievance mechanisms necessary to avoid, mitigate and remedy any direct and indirect impact of human rights violations;
- Ensure that subcontractors respect the rights of indigenous peoples and affected communities and establish accountability mechanisms for grievances.
Human rights defenders are recommended to:
- Develop and strengthen federal and state networks aimed at empowering defenders and facilitating coordination;
- Become more familiar with the UN Declaration on Human Rights Defenders and publicise it broadly in society.
- Make full use of United Nations human rights mechanisms, when reporting on human rights violations.