By The Secret Law Graduate
Does the United Nations Human Rights Committee's individual complaints mechanism improve human rights enforcement in Australia?
This article explores the role that good faith and bad publicity play in the HRC individual complaints mechanism, concluding that some combination of the two – in the right circumstances – may result in rights-conducive outcomes.
When Australia signed the First Optional Protocol to the International Covenant on Civil and Political Rights, it accepted that the UN Human Rights Committee (HRC) was authorised to consider human rights complaints brought by individuals against the nation. Consequently, the Human Rights Committee (HRC) passes judgment on violations of the International Covenant on Civil and Political Rights (ICCPR), one of the most preeminent human rights instruments. After reading and considering arguments by the individual complainant and the state, the Committee releases written decisions concluding whether human rights violations took place, and next steps the offending state must take. In theory, the HRC is the authoritative voice on enforcement of the ICCPR.
However, in practice Australia retains a ‘monopoly’ on the direct enforcement of HRC’s communications. [1] There is no domestic legal consequence if Australia simply ignores the HRC’s decision. Arguably, individual complaints only effectuate human rights to the extent that Australia agrees to comply with the HRC’s decisions. Without such voluntary compliance, the Committee has ‘no means of enforcement, apart from moral authority and the potential pressure of public opinion’. [2] In other words, if Australia will not act in good faith, the HRC must rely on bad publicity.
Before we proceed further, an important note: the HRC is not like the High Court, capable of substituting other courts’ decisions. The HRC’s role in the individual complaints process is supervisory and not substitutionary. This supervisory role reflects how article 2(3) of the ICCPR places primary responsibility for remedying violations on states. After all, states have ‘the superior efficiency, expediency and effectiveness’ to enforce human rights. [3] In practice, the Committee’s concessionary position means it cannot compel enforcement of its individual complaints decisions. To see this, we need only look at the story of Corey Brough.
Brough v Australia – An Undeniable Failure to Enforce Human Rights
The matter of Brough v Australia demonstrates a total failure of enforcement of human rights. In this matter, Corey Brough, an Indigenous sixteen-year-old with intellectual disabilities, was transferred to an adult NSW prison. There, he was subjected to extended solitary confinement, prolonged exposure to artificial light and ‘the removal of his clothes and blanket’. After bringing a complaint to the UN, the HRC concluded that Brough’s treatment violated ICCPR articles 10 and 24, denying Brough his inherent dignity as a prisoner and his unique needs as a child. The HRC concluded that Australia was obligated to compensate Brough, and institute measures to ensure such abuse never happened again.
However, Australia expressly rejected the HRC’s finding. Australia’s unyielding approach was reflected in comments by then-NSW Minister for Juvenile Justice Tony Kelly:
The Commonwealth has advised that Australia does not recognise the [ICCPR] as binding and that the committee cannot make any legally enforceable orders against the Commonwealth or New South Wales.
Consequently, Australia did not enforce the decision in any meaningful regard. Mr Brough remains uncompensated. Imprisoned youth across Australia continue to experience, solitary confinement, disturbing levels of self-harm, and even physical abuse. Dr Kate Fitz- Gibbon argues that, in light of ABC’s reporting on Don Dale Detention Centre, Australian jurisdictions ‘have arguably demonstrated declining commitment to the rights of children in … juvenile justice’. [4] Human rights issues for young and Indigenous prisoners periodically re-emerge; indeed, two Indigenous men are currently undertaking legal action against WA regarding prolonged solitary confinement.
Australia’s rejection of the HCR’s opinion in Brough supports the proposition that governments only comply with HRC opinions when politically expedient. More specifically, Brough illustrates that Australia is unlikely to comply with HRC criticism when the policy area involves populist issues of security and community safety. Here, political considerations favoured a ‘tough on crime' approach, with Australia’s response consistent with the emergence of 'knee-jerk legislative responses ... made in the name of penal populism'. [5] Instead of preventing Brough’s violations from repeating, politicians across the aisle deploy populist rhetoric justifying harsh incarceration of juveniles, whether former NT Chief Minister Adam Giles, or Victorian Premier Daniel Andrews.
Unsurprisingly, Australia has also rejected HRC opinions on immigration detention. [6] It appears the ongoing securitisation of border control, exemplified by the Abbott government’s ‘Stop the Boats’ campaign, has created an environment wherein both parties maintain arbitrary immigration detention in defiance of HRC communications. That Australian governments have characterised both juvenile justice and immigration detention in similar terms of ‘community safety’ supports the notion that security is a ‘trump card’ in human rights enforcement, serving as ‘the excuse rather than the reason’ for non-compliance. [7]
In light of this, the question becomes whether human rights advocates can make enforcement politically expedient, and more specifically, whether individual HRC complaints can be harnessed for that purpose.
Shaming into Action: The Capacity of Negative Publicity to Effectuate Indirect Enforcement of Human Rights
In the absence of good faith from Australia, negative publicity serves as the Committee’s greatest tool for enforcement. In this context, individual complaints may lead to human rights enforcement because the shame and condemnation arising from HRC communications incentivises governments to improve their public image, for fear that the communications may galvanise public support for their democratic opponents, or else render inaction unpopular. The HRC’s intent to generate internal debate is illustrated by how their decisions always request that states publish the committee’s views and disseminate them widely. These political dimensions mean that stakeholders involved in individual complaints tactically seek to shape the public’s attention.
On one end of the spectrum, the Australian government seeks to minimise coverage of individual HRC complaints. Whereas the Howard government adopted a combative stance towards early HRC communications, responding with joint Ministerial statements and press conferences, [8] Australia has since shifted to a deliberately 'disengaged’ approach. Notably, Australia frequently ignores the HRC’s request to publish its communications, notwithstanding that the act of publication requires no policy alteration. Whereas Australia has previously attempted to frame its non-enforcement of HRC communications as legitimate disagreement on the nature of ICCPR obligations, the refusal to comply with this simple procedural request exposes an underlying bad faith approach to the entire process. More importantly, it means that individual complainants and related stakeholders must generate public outrage themselves.
To that end, complainants’ legal representatives often seek to involve high-profile human rights figures. Such figures serve as 'norm entrepreneurs', individuals who 'mobilise popular opinion and political support’ for human rights enforcement ‘both within their host country and abroad'. [9] Geoffrey Robertson, who is currently assisting in an individual complaint for David Gungay’s family, fits this mould. The most successful example for Australia is Cherie Booth, who in 2000 represented an individual complaint against mandatory sentencing laws in the Northern Territory. An internationally renowned barrister (and spouse of the British Prime Minister), Booth garnered significant media attention; consequently, the laws were repealed before the HRC could consider the complaint. That both Robertson and Booth are internationally famous is precisely the intended effect; as transnational actors, norm entrepreneurs elevate domestic violations as a matter of international interest, seeking to persuade Australian audiences that ICCPR compliance is a universal moral issue. The desired effect is that such figures will amplify international awareness of the rights violations in question, and influence public support for human rights enforcement.
The power of negative publicity as a tool for enforcement, and its shortcomings, can be analysed in another HRC matter, that of Corrina Horvath.
Horvath v Australia – a successful outcome?
When an individual’s human rights under the ICCPR are violated, another right arises: the right to have the violation be remedied (per article 2(3) ICCPR). This entails compensating the victim for their loss, but also ensuring the loss does not happen again – whether by changing the laws or punishing the individuals responsible.
Corrina Horvath’s matter demonstrates that the HRC complaints system may, in the right circumstances, compel Australia to uphold individuals’ right to remedy. Sadly, this matter also unveils the difficulty of translating bad publicity into the structural, nationwide reforms necessary for ongoing human rights enforcement
In 1996, Corrina Horvath was viciously assaulted by police officers carrying out an unlawful raid of her home, and thereafter subjected to malicious prosecution. The disciplinary proceedings against the officers were overseen by Victoria Police and dropped; criminal charges were not brought. Although Horvath won civil claims against the officers, the responsible officers avoided paying the award, and the Victorian Government offered no alternative means of compensation. With no other options remaining, Horvath turned to the HRC for justice.
In May 2014, the HRC found Australia had effectively deprived Horvath of the right to remedy under article 2(3) of the ICCPR. This opinion was informed by ‘the shortcomings regarding the disciplinary proceedings’; indeed, they noted that ‘effective remedy’ may encompass ‘criminal, civil, administrative or disciplinary’ measures against the police officers responsible.
Unlike Brough, Horvath v Australia galvanised action. Following the communication, Horvath’s story was depicted in The Age and ABC’s 7:30 Report. The media foregrounded disturbing images of her injuries and described her experience with vivid detail (eg ‘officers kicked in the door’, ‘bashed [her] senseless’). Although Victoria Police had previously absolved itself of liability, following this coverage Victoria Police provided a ‘full and final’ payment to Horvath and an official apology. In this context, the role of the individual complaints process may be understood as follows: even if the HCR’s opinions lacked direct legal enforceability, its institutionalised ‘moral authority’ meant that its conduct was nevertheless deemed newsworthy. The media’s interest in the story allowed it to create a public narrative that rendered inaction politically damaging to the government, resulting in the implementation of an effective remedy.
However, why did Corrina Horvath generate community outrage whereas Corey Brough was completely overlooked? I believe the images of Horvath's injuries were instrumental. As Fitz-Gibbon writes, visual evidence has power 'in generating community concern around alleged human rights violations'. [10] Indeed, while Brough's matter resulted in inaction, the similar abuse of juvenile prisoners uncovered by ABC’s Don Dale reporting precipitated a sweeping response by the state, in part because journalists deliberately created visual parallels with Abu Ghraib-style torture.
Notwithstanding the positive outcome for Ms Horvath individually, the HRC’s decision concluded that structural reform was needed to prevent similar violations from recurring. In this regard, the independent complaint was, like Corey Brough’s matter, a failure. Although the Committee emphasised that police misconduct must be ‘effectively [investigated] through independent and impartial bodies’, the misconduct complaints mechanism remains ‘police-dominated’. [11] Importantly, even if Victoria had instituted independent oversight of police misconduct, Australia as a nation is obliged to give effect to article 2(3); a recent internal police memo, revealing that NSW Police view the millions paid in damages as ‘the cost of doing business’, indicates that the nation as a whole is failing to achieve this. This failure highlights the difficulties of relying on publicity as an enforcement mechanism; public outrage likely cannot be sustained long enough to effectuate structural reforms, especially when police have a ‘tendency … once a scandal has passed, to slip back into patterns of misconduct and self-protection’. [12]
***
What does the individual HRC complaints process leave us with? It appears the value of the process is frustrated primarily because the state, acting in bad faith, is guided by political considerations. Indeed, Australia’s ongoing dismissal of the Committee’s criticism indicates that, in terms of directly effectuating the enforcement of rights, individual HRC complaints arguably have no influence whatsoever.
Nevertheless, the negative publicity from HRC communications may indirectly influence enforcement, as seen in Corrina Horvath’s story. Specifically, there are various strategies complainants and other human rights actors can take in order to amplify negative publicity (norm entrepreneurs, powerful imagery).
Indeed, lacking good faith, bad publicity may be all we have.
FOOTNOTES
[1] Julie Debeljak, ‘Does Australia Need a Constitutional Bill of Rights?’ in Melissa Castan and Paula Gerber (eds), Contemporary Perspectives on Human Rights Law in Australia (Thomson Reuters, 1st ed, 2012) 38, 54.
[2] Timothy H Jones, ‘Legal Protection for Fundamental Rights and Freedoms: European Lessons for Australia?’ (1994) 22(1) Federal Law Review 57, 86.
[3] Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford University Press, 3rd ed, 2013) [1.25].
[4] Kate Fitz-Gibbon, ‘The Treatment of Australian Children in Detention: A Human Rights Law Analysis of Media Coverage in The Wake of Abuses at The Don Dale Detention Centre’ (2018) 41(1) University of New South Wales Law Journal 100, 101.
[5] Arie Freiberg and Karen Gelb, Penal Populism, Sentencing Councils and Sentencing Policy (Annandale: Hawkins Press, 2008) 46.
[6] Daryl Williams and Phillip Ruddock, ‘Australian Government Responds to the United Nations Human Rights Committee’ (Media Release, 17 December 1997); Commonwealth Attorney-General’s Department, Response of the Australian Government to the views of the Committee in Communication No 1255/2004, 1256/2004, 1259/2004, 1260/2004, 1266/2004, 1268/2004, 1270/2004, 1288/2004 (Shams et al v Australia) (2008).
[7] Anne Owers, ‘Prison Inspection and the Protection of Human Rights’ [2004] (2) European Human Rights Review 107, 109.
[8] Alexander Downer, Daryl Williams and Phillip Ruddock, ‘Improving the Effectiveness of United Nations Committees’ (Joint Media Release, 29 August 2000); Alexander Downer, Minister for Foreign Affairs, ‘Government to Review UN Treaty Committees’ (Press Release, 20 March 2000).
[9] Ethan A Nadelmann, ‘Global Prohibition Regimes: The Evolution of Norms in International Society’ (1990) 44(4) International Organization 479, 482.
[10] Kate Fitz-Gibbon, ‘The Treatment of Australian Children in Detention: A Human Rights Law Analysis of Media Coverage in The Wake of Abuses at The Don Dale Detention Centre’ (2018) 41(1) University of New South Wales Law Journal 100, 101.
[11] Sinéad O’Brien Butler, ‘Policing the Police: Independent Investigations for Victoria’ (2018) 41(3) University of New South Wales Law Journal 702, 716–7.
[12] Jude McCulloch and Michael Maguire, ‘Reforming Police Oversight in Victoria: Lessons from Northern Ireland’ [2021] Current Issues in Criminal Justice 16.
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The Secret Law Graduate has an interest in public policy and human rights, particularly regarding the rights of refugees and the elderly. They completed their Honours component at the Modern Slavery Law Clinic, and have interned at the ASRC and the Global Pro Bono Bar Association. They encourage students to take up human rights electives such as International Human Rights Law, International Refugee Law, and Modern Slavery.