Prior to the establishment of the Human Rights Council, states who ratified a human rights treaty agreed to provide a report to the treaty body responsible for monitoring that treaty. The reports were usually required every three or four years, and dealt with the way domestic laws are used to promote and protect the rights contained in the treaty.
Universal Periodic Review
The new Human Rights Council introduced a procedure called ‘Universal Periodic Review’ by which all UN member states will be required to submit information to allow the Council to monitor the ‘fulfilment of its human rights obligations and commitments’. The Council is to take into account information provided by the state, the UN Office of the High Commissioner of Human Rights and by other stakeholders, such as non-governmental organisations. This is not intended to replicate the UN treaty body reporting mechanism described in the next section. However, it will mean that states will provide a core report to the Human Rights Council, and a more detailed report to each treaty body. States will be expected to engage with the Human Rights Council in an interactive dialogue that includes civil society who can prepare ‘shadow reports’ to give a more balanced view to the UN Committees reviewing the reports prepared by states.
The treaty body or committee (for instance, the Human Rights Committee (ICCPR), or the Economic, Social & Cultural Rights Committee (ICESCR)) studies the report and then questions the representatives of the country concerned, indicating how better protection of human rights might be achieved. After considering the report, the matters raised at the hearing, and any other submissions, the committee makes ‘concluding observations’, in which it both compliments the reporting country, and raises issues of concern. The concluding observations are effectively the committee’s findings, on which a reporting party is expected to act.
The reporting procedure has been criticised by some international lawyers who say that the monitoring committees cannot effectively uncover violations of treaty obligations because states are likely to present information that is most favourable to their interests.
The role of non-government organisations (NGOs), such as Amnesty International, is very important. The independent information they provide to treaty monitoring bodies ensures that the reporting system works effectively. The information provided by non-state parties is sometimes called a ‘non-government report’ or a ‘shadow report’.
Recently, non-governmental organisations in Australia (also known as ‘civil society’) have begun to make more comprehensive use of their ability to make shadow reports to contest the claims of the Australian Government about its compliance with other human rights standards. Influential shadow reports have been submitted in relation to Australia’s performance under:
- CERD for hearings before the Committee on the Elimination of Racial Discrimination in 2005. The Committee noted a number of issues of concern, including the abolition of a national Indigenous representative body, the lack of any entrenched protection against racial discrimination in Australian law that would override any subsequent law, the refusal to provide financial compensation for those forcibly and unjustifiably separated from their families (Stolen Generations and children made ‘wards of the state’), the disproportionate representation of Indigenous people in gaols and;
- CROC for hearings before the Committee on the Rights of the Child in 2005. The Committee expressed concerns about the disproportionate representation of Indigenous children and young people in the juvenile justice system, children in immigration detention and the spread of homelessness amongst young people, amongst other issues;
- CEDAW for hearings before the Committee on the Elimination of Discrimination Against Women in 2006. The Committee expressed its concern at the lack of implementation of CEDAW in Australia, the absence of an entrenched protection against sex-based discrimination and the absence of maternity leave pay, amongst other issues; and
- ICESCR in 1998 and 2008 at hearings before the Committee on Economic, Social & Cultural Rights in 2000 and 2009. Shadow reports submitted by Australian non-governmental organisations have been very influential in framing the list of issues developed by the Committee on Economic, Social and Cultural Rights on which Australia was questioned in May or November 2009 when the Committee was in session. The Committee’s concluding observations in 2000 noted ‘with concern’ and ‘with regret’ the comparative disadvantage of Indigenous Australians, particularly in the fields of employment, housing, health and education; amendments to workplace law that the Committee said favoured individual negotiation over collective bargaining; and the failure to strengthen human rights education, amongst other issues. In 2009, the Committee noted its concern with the lack of legal frameworks to protect economic, social and cultural rights in Australia and affirmed the principle of interdependency and indivisibility of human rights. It repeated its concerns in relation to Indigenous Australians, in particular in the context of the Northern Territory Intervention. It was also concerned with adequate housing and health and educational outcomes for Indigenous people. The Committee also raised concerns about, among other things, freedom of association and the right to strike; access to social security for asylum seekers and newly arrived immigrants and new parents; and the ongoing practice of mandatory immigration detention by Australia; and
- Committee Against Torture in relation to Australia’s third periodic report, hearings for which were conducted in April 2008. The CAT noted ‘with satisfaction the constructive dialogue held with a competent and multi-sectoral [non-governmental] delegation’. It expressed concerns that there is no offence of torture with extraterritorial effect and no Federal Charter of Rights to protect the rights in the Convention Against Torture. It raised concerns in relation to Australia’s counter-terrorism laws, in particular the ability of people accused of terrorism to challenge the lawfulness of any detention or restriction of liberty in a court with appropriate procedural guarantees; Australia’s policy of mandatory detention of people who enter Australia irregularly, commenting that detention should be a measure of last resort and should be subject to reasonable time limits; and the conditions in which prisoners are held, in particular, conditions of overcrowding and access to mental health services in prison.
- ICCPR in 2009. Australia had previously reported belatedly to the Committee in 1998. In July 2000, when the Committee considered Australia’s reports, its Concluding Observations included concerns that in the absence of a constitutional Bill of Rights, or a constitutional provision giving effect to the ICCPR, there are still areas in which the domestic legal system does not provide an effective remedy to persons whose rights under the Covenant have been violated. The Committee expressed concerns about the rejection of the Committee’s views by the Australian Government in the Communication of A v Australia. It said that rejecting the Committee’s interpretation of the Covenant when it does not correspond with Australia’s interpretation undermines the recognition of the Committee’s competence under the ICCPR Optional Protocol to consider Communications. In its Concluding Observations in 2009, the Committee drew attention to some particular concerns including the counter-terrorism legislation introduced in Australia since 9/11; the lack of effective consultation with Indigenous people in decision-making that affects them; and the overall lack of enforceable human rights protection in Australian law.