The United Nations has again criticised Australia’s human rights record in relation to its treatment of asylum seekers and refugees. A report by the UN’s Special Rapporteur on Torture, Juan Méndez, has raised a number of concerns. These include:

Australia’s policy in relation to the detention of asylum seekers on Manus Island breaches Articles 1 and 16 of the UN Convention Against Torture. These articles require that Australia, as a signatory to the convention, not allow acts amounting to torture or cruel, inhuman or degrading treatment or punishment in any place under its jurisdiction. Méndez found that the reports of conditions in the centre – including increasing acts of violence – combined with the arbitrary and indefinite nature of the detention violated the convention.

Failing to respond adequately to specific allegations of intimidation and ill-treatment of two asylum seekers on Manus Island following their statements in relation to the violent outbreaks at the centre in February 2014.

Recent legislation passed by federal parliament violates the convention as it allows for the arbitrary detention and refugee determination of asylum seekers at sea without access to legal assistance. Concerns were raised that this could lead to an asylum seeker being sent back to a country where there are substantial grounds for believing they would face torture, in breach of Article 3 of the convention.

Amendments to character provisions in the Migration Act violate the convention, as an increase in the refusal of visas on character grounds will lead to those individuals being held in detention indefinitely.

Australia’s response

Prime Minister Tony Abbott reacted by saying Australians are:

… tired of being lectured to by the United Nations.

Méndez responded, saying:

I’m sorry that the prime minister believes that we lecture … We don’t believe so. We try to treat all governments the same way and deal with specific obligations and standards in international law as objectively as we can.

Abbott said the government’s policies had stopped people arriving by boat and ended deaths at sea. Méndez pointed out that prolonged and arbitrary detention should not be used as a deterrent.

Méndez’s role is to assist the government to develop alternatives that abide by its international obligations, such as appropriate screening with appropriate and fair procedures for the determination of claims of people who are fleeing torture.

Who is the Special Rapporteur on Torture?

The Special Rapporteur on Torture is one of a number of independent human rights experts who report to and advise the UN Human Rights Council. As part of their activities, the Special Rapporteur can communicate concerns to States on reports of individuals who may be subject to torture.

These allegations are provided to the State in writing and the state has the opportunity to respond. The Special Rapporteur then reports on those communications and responses annually to the UN Human Rights Council.

Méndez is well-respected. He is a Professor of Human Rights Law in Residence at the American University Washington College of Law. Like all UN Special Rapporteurs, he carries out his role on a voluntary basis. He is not a UN staff member and is independent from any government. Perhaps most importantly, he is a survivor of torture at the hands of the Argentinian military dictatorship.

What is the context of Abbott’s comment?

The UN has made several high-profile criticisms of Australia in recent months. In September 2014, the new UN High Commissioner for Human Rights, Zeid Ra'ad al Hussein, criticised Australia’s asylum policies in his high-profile opening address to the Human Rights Council. He singled out a number of states or regions of concern – Australia was one of the very few Western states highlighted.

This was followed closely by Australia’s scheduled review before the UN Committee Against Torture in November 2014. The committee quizzed Australia on a number of human rights issues. In its report, the committee made recommendations on Australia’s obligations not to return people to a country where they may be tortured (refoulement), and on the detention of children seeking asylum, which is only to be used as a last resort.

Abbott’s defensive response to the criticisms is reminiscent of John Howard’s adversarial relationship with UN human rights bodies. Although governments can get touchy about international criticism, engagement between governments and UN human rights bodies tends to be diplomatic.

Australia has not always read the memo on that one. Then-foreign minister Alexander Downer famously warned in 2000 that:

… if a United Nations committee wants to play domestic politics here in Australia, then it will end up with a bloody nose.

These types of comments would be unlikely from current Foreign Minister Julie Bishop. Bishop has performed well in Australia’s seat on the UN Security Council and has her sights set on a seat on the UN Human Rights Council in 2018. She has said:

Our strong and principled stand on numerous human rights issues in our role as a temporary member of the Security Council will form part of our campaign … We abide by our international obligations and we are confident that our experience and our commitment to human rights protection and promotion makes us a strong contender.

Is Australia a good international citizen?

Contrary to Bishop’s view, UN bodies have consistently found that Australia does not abide by its international human rights obligations in certain key areas such as its treatment of asylum seekers.

At a national level, the bill Méndez mentioned was also found by the Parliamentary Joint Committee on Human Rights to be incompatible with Australia’s international human rights obligations.

A less-than-perfect human rights record does not preclude a state from Human Rights Council membership. However, it must demonstrate willingness to provide redress and make improvements.

Australia’s breaches of international human rights law are increasingly coming to the UN’s attention. Abbott’s recent comments are not compatible with a state willing to provide redress and make improvements – and nor are the individual cases brought to UN human rights committees. Australia has acted on the committees’ findings by providing remedies to those affected in only 17% of cases.

In November 2015, the Human Rights Council will consider Australia’s overall performance in its peer-review mechanism – the Universal Periodic Review. This review will include information such as Méndez’s report.

In the previous review in 2011, Australia accepted the majority of the recommendations made by other states. It also made a number of voluntary commitments to the council, including establishing a full-time Race Discrimination Commissioner in the Australian Human Rights Commission.

This time around, it remains to be seen whether Australia will play the role of a good international citizen, keen to secure a future seat on the Human Rights Council.