Australia can’t preach human rights

By Reason Wafawarova in Sydney, Australia

ON November 24, Australians dismissed John Howard’s Liberal Coalition government in favour of Kevin Rudd’s Labour Party and some readers have asked this writer the implications of the 26th prime minister of Australia; in terms of relations with Zimbabwe.

On the other hand, one reader, who doubles as a hostile advocate against this writer’s continued stay in Australia, one Vio Mak, who also takes offence at the fact that this writer professes to have no idea who she is when she reckons she is a famous Zimbabwean musician — has vowed that one more opinion piece by this writer in The Herald and that is the end of this writer.

Vio Mak has posted her images so that this writer can have an idea who he is dealing with and for sure Manheru was right when he said "Maiwe, maiwe, inga opposition ine zvitambo nengoma." It is dazzling beauty sitting on an absolute and outright lunatic. Anyway, Vio Mak has vowed that in light of her failed efforts so far to work with earthly administrators in making sure that this writer’s right of stay is extinguished she has resorted to divine intervention and she has emailed the Highest Office in the skies for this writer’s immediate deportation from this planet and the superstar singing sister reckons the arch-angel Michael might as well do an Armageddon on this writer. If only Pastor Andrew Wutawunashe had not made this writer receive the Lord Jesus Christ as personal saviour way back in 1983, surely this writer would be quaking in his boots with fear.

Anyway, today’s piece comes before the Armageddon and dear reader; let us make hay while the sun shines. The change of government in Australia was mainly a result of a desire for fresh leadership against a background of 11 years of a conservative coalition government under Howard. Rudd’s economic policies were largely "me too" policies to those of Howard while he differed significantly on issues like climate change and the Kyoto Protocol, the industrial relations laws for Australian workers, the military engagement in Iraq as well as what he called an "educational revolution". Of course, Australia’s foreign policy on Zimbabwe never featured in the campaign — mainly because many would view it as a foregone conclusion that the position taken by the Howard is mutually acceptable to the polity of Australia in general.

The bone of contention between Canberra and Harare emanated from the land reform programme and it has always been Canberra’s official position that the Government was complicit with the land occupiers in "violating" the property rights of white commercial farmers who previously occupied this land, as an inheritance from their colonial ancestry. Howard personally presided over the suspension of Zimbabwe from the Commonwealth under the guise of promoting human rights in 2002 just like he deployed forces into East Timor in 1999 — again in the name of human rights. Any interpretations on what Rudd will do about Zimbabwe should therefore be made in the context of Australia’s idea of the human rights regime.

It is therefore important to take a look at Australia’s history with the human rights regime — a history whose context might help us understand Rudd’s likely attitude on Zimbabwe. It must also be noted that Rudd’s policy of Zimbabwe is not going to be shaped by the reality of political developments on the ground but by the forces of Australian domestic politics as well as the global political positions taken by Australia’s allies, especially Britain and the United States.

If human rights are the issue between Canberra and Harare why not take a look at Australia’s position in the human rights regime. International human rights have a chequered history in Australia, as Hilary Charlesworth asserts in the 2006 book, No Country is an Island.

On paper, Australia is a recorded long-time champion of the international human rights framework, ratifying almost every human rights treaty negotiated at international level. However, in practice Australia has failed to implement the majority of the treaties it ratified into domestic law. All attempts at establishing a national bill of rights have been unsuccessful and currently Australia is the only Western country without a National Bill of Rights — a development that has meant that Australia’s national courts cannot effectively offer protection to individuals on matters relating to international human rights.

The major argument given by successive governments over the non-existence of a human rights bill is that Australia has adequate laws to protect its citizens as well as that international law infringes on Australia’s sovereignty. In 2000, the UN Committee on the Elimination of Racial Discrimination condemned aspects of Australia’s record on racial discrimination and in the process invited Alexander Downer’s ire. Said Downer: "If a UN Committee wants to play domestic politics here in Australia, then they will end up with a bloody nose."

Despite the apparent resistance by Australia in the implementation of international human rights at home, the country has tirelessly played an energetic role in ensuring that other countries comply with international human rights treaties. Australia boasts of an outstanding role in advocating human rights at international level. The country is a founding member of the Commission on Human Rights established by the UN Economic and Social Council in 1946, even chairing the Commission in 2004.

Australia, as will be seen later in this article; was a leading figure in the establishment of the Rome Statute — which establishes the International Criminal Court.

The contrasting lack of interest in international human rights at home and the unparalleled enthusiasm at international level gives an image of "a Janus faced Australia" according to Hilary Charlesworth.

Australia comes out as a nation that advocates international laws for other countries while being more cautious about the application of the same laws in its own backyard. The implicit impression that has always been given by successive Australian governments is that international human rights standards are only relevant for other countries. It is surprising and quite unfortunate that this attitude seems to be reflected in Australian public perception as well, just like seems to be the case with other Western communities.

Gareth Evans, a former Australian Commonwealth attorney-general, considered that "most Australians seem to regard matters of political and civil liberties as of no concern to themselves, but only to noisy and unattractive minorities".

This is the public opinion and attitude Rudd has to operate under in his new role as Australia’s prime minister. This opinion is a result of years of trying to balance compliance with human rights in juxtaposition to concerns about sovereignty, conflict with domestic policy, mistrust of international institutions and Australia’s affiliations with powerful allies, especially with the United States.

It is abundantly clear that the demands of domestic politics and that of foreign alliances have often outweighed Australia’s need to comply with international obligations.

It may be necessary to take a brief look at the international human rights regime in general before looking at case studies involving Australia’s domestic political pressures.

The United Nations Charter was a direct response to the atrocities of the Second World War and the aim was to ensure respect for human rights and fundamental freedoms.

The Charter had four main phases for these fundamental rights. Firstly, there was the declaration phase of 1948 when the UN General Assembly adopted the Universal Declaration of Human Rights, albeit with no binding force.

Secondly, there was the implementation phase of 1966 when legally binding human rights instruments were adopted. These were the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Economic Rights (ICESCR). These two instruments together with the Universal Declaration of Human Rights (UDHR), make up the International Bill of Rights. These rights cover the right to life, prohibition of torture, freedom of religion, right to education, right to just and favourable conditions of work, right to culture and freedom from discrimination.

Thirdly, there was the monitoring phase, made possible by such UN institutions as the Commission on Human Rights (the one that did a damning report on Guantanamo Bay) and the UN Council for Human Rights established as the Office of the High Commissioner for Human Rights in 1993.

Lastly, there is the enforcement phase, clearly impeded by the UN’s lack of ability and will to enforce human rights. The UN Security Council can authorise enforcement of human rights only where violations are deemed to pose a threat to international peace and security. International tribunals like the International Criminal Tribunals for former Yugoslavia and for Rwanda can from time to time be set up to enforce international human rights.

Where international human rights have been implemented into domestic law, they can then be enforced through national courts.

That, in a nutshell is the international human rights regime and one has to look at Australia’s engagement with human rights from this perspective. As already outlined, Australia neither has a national bill of rights in its constitution, nor does it have domestic legislation for the majority of the human rights treaties it has signed and ratified. For Australia, ratified treaties do not necessarily translate into domestic law and effectively such treaties have no binding force in terms of Australian laws.

The question is why and how does a ‘‘well-proclaimed democracy’’ such as Australia operate without a bill of rights? A bit of Australian history might suffice here. In 1972, the Gough Whitlam Labour government signed the ICCPR and ICESR. Malcolm Fraser’s coalition government ratified both treaties in 1976 and 1980 respectively.

However, no legislation was enacted as Malcolm Fraser reckoned that "when people resort to the law to protect their rights, they typically do so only because their rights have already been infringed. It is a trap to depend too much upon law for the enjoyment of rights, or to imagine that more laws, different kinds of laws, or a greater resort to law, can be a substitute for attitudes and relationships between people, and it is worth remembering Cicero’s words, ‘the more the laws, the less the justice’."

Fraser’s views have since changed, as is always the case with most of Australia’s leaders after they leave office. In 2000 Fraser had this to say: "I now believe that our system has so patently failed to protect the ‘rights’ of Aboriginals that we should look once again at the establishment of a Bill of Rights in Australia".

Bob Hawke’s Labour government, through a number of successive attorney-generals, tried in vain to implement a domestic Bill of Rights in Australia. In 1983 Senator Gareth Evans assumed the Attorney-General’s Office and tried to sell his Law and Justice Policy that promised a Bill of Rights and he openly acknowledged that his policy would be very difficult to sell to the electorate.

Said Senator Evans: "No one should be under any illusion that a commitment to human rights is good politics in the sense of winning electoral hearts and minds . . . As a nation at large . . . we are monumentally indifferent, if not positively hostile, to most matters of civil liberty and law reform…Reform in this area will always be hard to sell, but decency and humanity demand that the effort be made."

After this Gareth Evans’ Labour Party authorised him through its Cabinet to proceed with drafting a Bill of Rights in October 1983 but they made a dramatic about turn in 1984 after fierce attacks by Australia’s states, the opposition and other vocal right wing groups — all coming in a possible election year. Evans’ successor, one Lionnel Bowen, made another attempt at introducing a Bill of Rights and again the same forces that opposed Evans effectively thwarted him.

This political environment has meant that all but five of the human rights treaties signed and ratified by Australia have not been implemented domestically. The exceptions are the Convention on the Elimination of Racial Discrimination through the Racial Discrimination Act 1975 (Cth), aspects of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), through the Sex Discrimination Act 1984 (Cth), the prohibition of some human rights violations during armed conflict through the Geneva Conventions Act 1957 (Cth) and most recently the Rome Statute of the International Criminal Court was also implemented through the International Criminal Court (Consequential Amendments) Act 2002.

It is the issue of the Genocide Convention which Australia ratified in 1949 and only implemented into domestic law in 2002 through the International Criminal Court (Consequential Amendments) Act 2002 that is most interesting. This effectively means that Australia only started to recognise that genocide was a crime at law in 2002. It takes no rocket science to figure out why. The Genocide Convention has for years been viewed as an incriminating piece of legislation by successive Australian governments. The struggle that saw the enactment of this new law was incredible; with Members of Parliament almost coming to blows over whether or not genocide was to be considered a crime in Australia.

Australia’s role in the establishing of the Rome Statute was that of an enthusiastic role model and champion of human rights at the international scene. So committed was Australia that for once John Howard abandoned his lapdog support for the US by chairing the "Like Minded Group" of 70 nations that established the Rome Statute in 1998 — all despite the spirited attacks on the ICC by the United States.

After chairing the Rome Conference that established the Rome Statute — which in turn established the ICC, Australia signed the Statute on December 9, 1998. However, there was drama in Canberra between 2000 and 2002 as no one seemed to be interested in being associated with the Rome Statute, let alone ratifying it.

Alexander Downer had to avert international embarrassment by appending a "declaration" or a reservation that provided additional protection for Australians from prosecution by the ICC. In essence Canberra was saying the Rome Statute, in the state of its final draft, was good enough for all non-Australian citizens across the globe but need to be amended with extra protection for would be Australian offenders. The UN depository initially rejected Australia’s ratifications since they had "effectively drafted their own Rome Statute" but the ratification was later accepted as appended by Downer after he made "personal pleas" to Hans Corell, the then UN Under-Secretary-General for Legal Affairs.

The UN Human Rights Committee, among other decisions, has so far made decisions against Australia in matters involving mistreatment of children, inhumane treatment of prisoners, denial of the right to family life and undue trial delays. For its troubles, the Committee met the wrath of the Howard government and John Howard himself threatened to pull out of the UN Committee system.

The Committee on the Elimination of Racial Discrimination was given prime media coverage when they were showering Australia with applauses for its legislation on racial discrimination and the promotion of multiculturalism. However, they just fell short of being kicked out of the country when they expressed regret that the Australian government had failed to apologise to members of the Stolen Generation, that group of Aboriginal children forcibly taken away from their parents by the European settlers. John Howard insists that he will never apologise because he does not want to "wear the black armband of history".

Kevin Rudd was telling the voters that he saw no problem in apologising and it still has to be seen if he will carry out his election promise.

If indeed the official position of Australia’s unsound relations with Zimbabwe is human rights then one can easily see that Australia brooks no nonsense in its stance of advocating for other countries to live without sin while it has no qualms operating without a Bill of Rights at home. It would be naïve to expect any policy shift with the new government of Kevin Rudd.

Essentially, Rudd’s position is going to be guided by public opinion, which so far has been shaped sharply against the Government of Zimbabwe. Secondly, Australia will always relish any opportunity to play champion for human rights especially when the obligations for the honouring of such rights are squarely in the hands of others, in this case Zimbabwe.

Thirdly, Rudd will shape Australia’s policy on Zimbabwe in the context of its affiliations with powerful allies, in this case the United States and Britain. As it is the two powerful allies would kill everyone in the Zimbabwe Government if they were given half a chance to do so and Australia can only reflect that position.

Lastly, Australia has an interest in the domestic politics of Zimbabwe — an interest driven by a desire to restore the imperial set-up that ran the Zimbabwe economy pre 2000. That restoration can only be visualised in the context of regime change and there is absolutely no reason for one to expect positive changes towards a regime that is wanted out.

Whichever way, it is not about human rights that Zimbabwe is being viewed.

It is about its anti-imperialist economic policies, especially the land reform programme and the new investment laws. Any country that purports to stand by Zimbabwe is therefore viewed as complicit to Zimbabwe’s rebellion to imperialism and under such battle lines, there is no good reason for expecting Rudd to co-operate with the current Zimbabwe Government.

This writer asserts that Zimbabwe should expect the scenario of one man disarming a robber whose gun was right on another man’s forehead, only to put the barrel back and demand exactly the same loot the disarmed robber was demanding. This is how the Rudd-Howard scenario should be seen.

Together Zimbabwe will overcome. It is homeland or death for the children of Zimbabwe.

l Reason Wafawarova is a Zimbabwean political writer and can be contacted on wafawarova@yahoo.co.uk

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