Swieringa, Margaret --- "The Parliamentary Human Rights Sub-Committee" [1995] HRightsDef 5; (1995) 4 Human Rights Defender

The role of the Human Rights Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade

Background
Parliamentary committees are in many respects the Parliament in miniature. If you present material to a committee you are in effect presenting it to the Parliament. Committees are governed by all the powers and the privileges of Parliament. They protect witnesses. They operate under the standing orders of the chambers. A committee comprises members of all political parties. House of Representatives' committees are chaired by members of the Government; Senate committees might be chaired by either a Government or an Opposition member.

Parliamentary committees have the function:

• to scrutinise government policy particularly for flaws or the
• unintended consequences of legislation;
• to create a liaison between Parliament and the people;
• to focus attention on particular areas of policy which are contentious or undeveloped; and
• to inform and educate, in specific policy areas, Members of Parliament who, as the former Minister for Science, Mr Barry Jones, MP, has said, are information poor by comparison with the information rich executive.

Committees receive references from Ministers or from the Parliament. Inquiries are then advertised, submissions received, hearings held throughout the country, reports drafted and considered.

Committees strive for consensus in their reports. The most powerful statement the Parliament can make on Government policy is when there is unanimity from the members of a committee. Then the Government is more likely to accept its recommendations.

In the Joint Committee on Foreign Affairs, Defence and Trade the subcommittees report to the Main Committee and through the Main Committee to the Parliament. Reports are made to the Parliament and recommendations are made to the Government. The Government has, in theory, three months to respond to a committee's recommendations. The Government response is made in writing. It addresses each recommendation stating whether the Government will adopt the recommendation and, if not, why not.

The Human Rights Sub-Committee was established in 1991 as one of four, and the last of the 'permanent', sub-committees of the Joint Committee on Foreign Affairs, Defence and Trade. The others are the Foreign Affairs, Defence and Trade Sub-Committees.

The decision to establish the sub-committee within the Joint Committee on Foreign Affairs, Defence and Trade rather than as a separate committee of the Parliament emerged from the interest in and pressure for the committee that had come from Amnesty International - and perhaps to some extent from the personal interests of Senator Schacht, the then Chairman of the Joint Committee and from Senator Bourne, the spokesperson for the Australian Democrats on Foreign Policy.

The Joint Committee had long been a focus for appeals and representations from many groups within the Australian community on human rights matters. It was Amnesty International which suggested a more formalised reporting mechanism, on human rights; in particular the Minister for Foreign Affairs would provide an annual report to the committee outlining the Government's work in the human rights field. This report, it was decided, would then be the subject of regular parliamentary review, examination and report.

The intention was to expand parliamentary responsibility and community support for the continued development of human rights protection. This is an interesting development in the light of the current debate on treaty making and the growing call for a parliamentary role in the treaty process.

The emphasis of the Human Rights Sub-Committee's inquiry was to be on the record of the Australian Government in its international activities to promote and protect. It was not to be an examination either of individual cases or of the human rights records of other countries. The subcommittee did not, and does not, seek to duplicate the work of the US State Department whose annual report to Congress attempts to make comprehensive judgements about the records of most countries around the world. Staffing resources for the sub-committee alone would have precluded this. In practice, there is a very fine line for the sub-committee to tread. It has not been easy to separate entirely the domestic and the international aspects and the individual or group concerns from the policy areas of human rights.

The decision to place the sub-committee within the structure of the Joint Committee was in keeping with the original Amnesty and international focus - a recognition of the links, the inter-connectedness, between human rights and foreign policy, defence and trade issues. The cross fertilisation that occurs from the briefings members of the Joint Committee receive on all these issues is certainly very valuable. And there is now a growing understanding of the integral nature of human rights across all levels of government and across so many portfolio areas.

These decisions regarding its establishment also explain something of the problems the sub-committee has had in dealing with the human rights of Aborigines over the last four years.

Terms of Reference and Process
The first terms of reference simply stated that the committee would consider and report on an annual report by the Department of Foreign Affairs and Trade on the Government's international efforts to promote and protect human rights. The inquiry was advertised in the press - in all national dailies. Eighty-eight submissions were received. Within the twelve month inquiry framework, 10 public hearings were held in Sydney, Melbourne and Canberra. At the end of the hearings a report was drafted by the sub-committee.

The First Report 1992
By far the most voluminous material came, not from people wishing to explore the Government's policy options for the international promotion of human rights - aid policy, defence cooperation, approaches to the UN human rights treaty regime - but from particular groups which sought support from the sub-committee to bring pressure to bear on governments which they believed were oppressing the rights of individuals and minorities in other countries - East Timor, West Irian, Bougainville, Sri Lanka, Burma, Thailand, China, Tibet, the Balkans, the Middle East etc.

Since the annual report of the Department dealt with representations made on many of these issues either on a bilateral basis or through multilateral forums, the submissions were in order and the task for the sub-committee and the secretariat became a daunting one.

In the first inquiry, few submissions drew attention to the rights of Australians and yet the issues raised by those that were received were so broad there was no capacity to explore any of them properly. However, one or two witnesses impressed upon the sub-committee a number of areas where Australian compliance with international treaties was deficient, namely on matters relating to Australian Aborigines, juveniles in detention - not an unrelated issue, women's rights and refugees.

The sub-committee was conscious that domestic issues fell outside the terms of reference and also cut across the work of the domestic committees of the Parliament. For example there is a committee on Aboriginal and Torres Strait Islander Affairs, one on Migration and in 1992 a very large inquiry had just been completed on women's rights to equality.

Consequently, the first report rather side-stepped the domestic questions, especially indigenous ones.

However, the report noted them as matters of concern and matters of non-compliance and noted that they had the effect of undermining Australia's foreign policy efforts to promote and protect human rights in international fora.

"The most significant human rights problem in Australia is the condition of the Australian Aborigines. On the whole our failure to ratify various articles of the international conventions or our failure to comply with various aspects of international human rights obligations affects the rights of Aboriginal people. This is so whether it be the statement of non-compliance with Article 4(a) of the ICERD which requires the passing of legislation outlawing racial vilification, the reservations on Article 10 of the ICCPR dealing with the segregation of adults and juveniles in detention (Aborigines constitute a disproportionate number of Australians in gaol), the failure to pass implementing legislation for the Genocide Convention, the reservations on Articles 21 and 22 of the CAT or the failure to ratify ILO Convention 169 dealing with the rights of indigenous people."

The report discussed the findings of the Royal Commission into Aboriginal Deaths in Custody and the National Inquiry into Racist Violence, particularly as their findings impinged upon international human rights obligations. It endorsed the ratification of outstanding articles and conventions relating to Aboriginal people or racial prejudice.

While these were considered to be important steps, the sub-committee noted that they were only starting points and did not guarantee improvements.

The committee is aware that the solution to the serious breaches of the human rights of Aborigines does not lie in the law alone. Indeed it recognises that the hardest changes to achieve are the changes to attitudes whether that be the prejudices of white Australians or the morale of a whole dispirited Aboriginal community. Nevertheless, while not a panacea, the committee believes that our society is built on the role of and faith in the law as a starting point for justice. .

The overall feeling at the end of the inquiry was one of ambivalence. The sub-committee could not make detailed investigations of Aboriginal issues and yet this was the central human rights issue for Australia. Moreover the subcommittee believed that any criticism of other nations' failures to protect human rights would be invalid if it did not address our own. It was decided that the sub-committee's role would be to make a broad assessment of Australia's compliance with our treaty obligations and inform both public and Parliament about what those obligations were. The sub-committee also asked that the work of the UN Working Group on Indigenous Populations be included in the next annual report from the Department of Foreign Affairs and Trade so that closer consideration might be given it.

The Second Report 1994
In this Parliament, a further and more specific reference was given to the sub-committee by the Minister for Foreign Affairs and Trade. It included reference to Australia's status vis a vis the UN human rights conventions and reports to the UN human rights committees. This focussed the subcommittee's attention on treaty obligations and allowed more readily for an assessment of our domestic record. It also heralded a reorganisation of the report with a focus on rights as outlined in the conventions and an assessment of Australia's efforts or achievements or failures in this sphere as only one country among many.

The second report gave particular emphasis to the question of implementation and monitoring. Hence the quotation on the cover, "Between the idea and the reality, falls the shadow".

A brief look at the chapter headings should make this emphasis on conventions and their implementation clear.

Indigenous Peoples' Rights
In regard to indigenous peoples' rights, the work of the sub-committee has evolved. Consideration of these rights fits more easily within the new terms of reference.

The second inquiry drew much more information on the question of indigenous peoples' rights: a number of documents within the Department's annual report outlined the Government's work, submissions from ATSIC, the Victorian Aboriginal Health Service, the Australian Institute for Aboriginal and Torres Strait Islander Studies, the Attorney-General's Department (on the Native Title Bill), and from remote communities in the Northern Territory and evidence from the Federal Social Justice Commissioner, Mr Mick Dodson.

The sub-committee sought: to understand, in an overall way, the current circumstances of Australia's indigenous people - to what extent and in what ways did Australia fall short of its obligations vis a vis Aboriginal and Torres Strait Islander People and what efforts were being made to redress the problems; to understand, assess and inform the Parliament of the directions of Government policy and the international debate on indigenous peoples' rights.

When the sub-committee visited Darwin and the remote communities in the Northern Territory in March last year I was told that the Aboriginal people were tired of reports being written on their problems. Too many reports had been written and there had been no change. It is a good point and one that is difficult to answer. I can only say that it takes a lot of talking until enough people and the right people understand a problem, until the solutions have been defined, refined and agreed upon. At times you have to make people listen who have no immediate inclination to listen or whose prejudices cloud their judgement. And it is important, as ideas develop and take shape, to bring with you as large a group of people as possible..

In the area of indigenous peoples' rights there have been considerable strides made at the theoretical level, at the UN level. This development of ideas is as second nature to those who have been working in the area, in the Working Group on Indigenous Populations, in the universities, in the Australian Institute of Aboriginal and Torres Strait Islander Affairs (AIATSIS). For many Australians, however, I would guess, their concepts are back on debates about assimilation..

In Chapter 6 of the 1994 report, the information on indigenous issues and from indigenous groups was extremely important in informing both Members of Parliament and the wider community about the way in which the debate is moving. What is the importance and meaning of the term selfdetermination for indigenous peoples? What are collective rights? How can customary law fit with statute law and with international human rights standards?.

The widest possible dissemination of this information will be important as the Draft Convention on the Rights of Indigenous Peoples moves to the General Assembly.

Margaret Swieringa
Secretary Human Rights Sub-Committee
Joint Committee for Foreign Affairs, Defence and Trade