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Human rights mechanisms and the Asia-Pacific

CHAIR (Ms Rea) —I welcome everybody here today, including the subcommittee members. Some have travelled very long distances to be here and others not quite so far, but I do appreciate you taking the time out to come and participate in our inquiry today. I also welcome our first presenters this morning, from the Castan Centre for Human Rights Law. We have had some very interesting discussions coming out of these hearings so far, and no doubt Melbourne will also play a significant part in contributing to this discussion.

The subcommittee prefers that all evidence be given in public. Should you at any stage wish to give any evidence in private, you may ask to do so and the subcommittee will consider your request. Although the committee does not require you to give evidence on oath, you should be aware that these hearings are legal proceedings of the parliament and therefore have the same standing as proceedings of the chambers themselves. I invite you to make some opening remarks and then we will move on to questions and discussion. Thank you.

Prof. Joseph —Thank you. I will start with a few words and then Adam will follow up. In the Castan Centre we are ultimately supportive of the idea of a Pacific human rights mechanism, certainly in the mid to long term. We believe such a mechanism could be very fruitful in promoting and protecting human rights in the region, but we think it is probably premature at this stage to be discussing details of such a mechanism. For a start, it was not clear from the guidelines for submissions what was actually meant by ‘Asia Pacific’. It is potentially an enormous area. In our submission we mention this and we proceeded on the basis that you were probably talking more about the Pacific and probably not about, say, ASEAN nations. But that was a presumption and it might have been wrong. So, first of all, we have to decide which states we might be talking about.

We believe that any move towards the creation of a regional mechanism is going to necessitate serious regional dialogue. We do not think that this will really get off the ground, if it is perceived outside Australia as being led by Australia—for a number of political reasons, I do not think that would work—whereas if it is seen as being led by other countries or perhaps equally led by everybody within the region, that is going to be more successful. Ultimately, I think Australia would need to engage in dialogue with Pacific nations and perhaps promote initiatives to support those countries in promoting human rights. For example, Pacific nations have a very poor record at the moment of even ratifying the universal treaties, so Australia could engage in dialogue as to why that is and perhaps capacity build to assist them to get to a state where they feel they can ratify those treaties. Another initiative, which is not in our submission, might be the provision of human rights training in the area, through AusAID or other agencies.

Dr McBeth —In addition to what Sarah was saying about it not being seen to be an Australian led initiative, we think that if that were the case it would be open to charges of colonialism, of imposition of Western standards and the like. Any document or instrument that was ultimately adopted on that basis formally might not be actually taken up and embedded in the individual culture, and we think that would be a dangerous thing. So it would be important for there to be more engagement and for it to be driven by at least some Pacific partners, we think.

Furthermore, any regional instrument that might come out of this process should not become a lowest common denominator exercise. While regional instruments are valuable to the extent that they can get like-minded countries together and get a stronger enforcement system than the one we have at the universal level, if they in effect water down the provisions that we have at the universal level, that would be dangerous and would be a step backwards for the human rights system. The bottom line there is that we do not say a regional system ‘at all costs’ or ‘at any cost’; we say that it should be one that reflects Australia’s existing commitment to universal human rights.

We think it is equally important that Australia be, and be seen to be, a good international citizen with regard to human rights. We know that Australia has been criticised year in and year out on the same sorts of issues for its noncompliance with Australia’s international human rights obligations. We have in the last week seen another round of the same sorts of criticisms coming out of the concluding observations of the Human Rights Committee. If Australia continues to be castigated for noncompliance with its existing international obligations, it gives a reason for other states to say, ‘Well, we can do as Australia does and implement this in form but not in practice.’ That is an important area: Australia should get its house in order first.

A final point that I want to make is that it is important in our view not to segregate human rights from other areas of Australia’s international engagements. We do not want to see Australia’s human rights commitments ‘over here’ and everything else that we do ‘over there’. It is important to integrate Australia’s human rights commitment to its aid program. Sarah suggested training programs with other Pacific nations. There was a submission from Professor Andrew Byrnes from the University of New South Wales that mentioned Australia’s involvement with the Asian Development Bank and other international financial institutions.

In terms of actual practical outcomes, that is as important, if not more important, from a human rights point of view, as a formal legal mechanism for making human rights claims. Implementation of the Millennium Development Goals and incorporating human rights principles through the Asian Development Bank and through Australia’s trade arrangements are all things that are more important in terms of a practical outcome, or at least as important for human rights, as a legal mechanism for making and adjudicating claims, so we would urge the committee to go down that path. If all of these things are sorted out first, then we think a regional human rights mechanism would very much be a good thing.

CHAIR —Thank you very much. In terms of the definition of the region, when we mention ‘Asia Pacific’ we are roughly referring to the countries covered by the Asia Pacific Forum, which is probably the best indication. It does extend right through Asia; in fact, even into some of the Middle Eastern countries. Having said that, what has been a fairly consistent comment throughout is that it is an extremely large region to try and deal with in one go, and that we are probably talking about two subregions, Asia and the Pacific, so focusing on the Pacific is fine. We have had quite a lot of people focusing particularly on that subregion. In that sense, we will open up for questions now, and I will start.

You have raised a number of interesting points that we have heard before, particularly the comment around using Australia’s position as an aid funder to promote human, civil and political rights, and tying development funding in with that. There has been some discussion about that amongst the committee. Those countries, particularly in Asia, that have developed the most significantly in terms of economic development, have not necessarily translated that into civil and political rights. I am wondering if you would like to expand on, firstly, how you think that could be achieved and, secondly, how we could achieve that without being seen to be too colonialist if we cannot do it through the legal mechanisms.

Dr McBeth —The best way to look at that is to remember just how broad human rights are as a doctrine, as a principle. They include all of the economic, social and cultural rights, so economic development per se is a human rights outcome, provided that in the development process there is assurance that access is available to whatever the service may be—for instance, if you are improving the provision of water throughout a community then access is guaranteed to those who cannot afford a user-pays principle, and things of that sort. So, whatever it is that Australia is already doing in its development programs, simply to implement human rights principles in the delivery of those programs would deliver a human rights outcome.

On the one hand you have got the old-fashioned argument of conditionality—in other words, ‘You may not have this aid money unless you can tick these boxes.’ That is one way of looking at civil and political rights outcomes but, as far as only doing what Australia already does and implementing human rights principles in that—so in terms of accessibility and achievement of the Millennium Development Goals—that is something that we say qualifies as a human rights outcome.

As far as translating it into civil and political rights goes, that is more difficult, because there has to be some sort of cultural acceptance there. Judicial independence or weeding out political corruption is much harder to address simply through giving aid. Engagement and training programs and the like are useful there, but they are only going to be successful up to the point where there is political acceptance on the other side, and I do not think we or anyone else has an easy answer to that.

Mr RUDDOCK —I recall that, in my youth, the argument that you are running that you have to see economic and social goals as the equivalent, in a sense, of civil and political rights was always used as a basis for saying: ‘These are the priorities. You don’t give them that priority. We’re not going to deal with civil and political rights until the economic arguments have been effectively addressed.’ Economists particularly used to use that in all of the institutional debates, and I think there are some that still run that argument. But Singapore and China are the two that we had in mind in our own discussions, and there is no way you can say, in relation to Singapore, that they have not got social and economic development, but it has not brought civil and political rights.

Dr McBeth —No.

Mr RUDDOCK —My concern is that that argument—and you have used it very squarely—often prompts people to think that they are equivalent and you cannot get one until you have got the other, and so on.

The other aspect that I wanted to pick up in relation to that goes to some of the cultural issues. It seems to me—and you are running this argument—that we have to recognise cultural issues. We were having a bit of a chat about this before in relation to Fiji. There are significant cultural issues that have led to the very significant reduction in what I would regard as civil and political rights and I do not know how we are going to address those issues unless we are prepared to be more assertive in relation to those matters. In other words, I do not think we should be put off from asserting the need to deal with civil and political rights within the region on the basis that there are cultural reasons for not doing so or there are economic issues that have to be addressed first.

That brings me to this question of the aid program. One of the limitations in relation to the aid program at the moment is, of course, that we always consult. We do not want to be giving direction, we do not want to be seen to be imposing our values, so we consult. That means that if you have a view about institutionalising some process for dealing with civil and political rights and the country that you are consulting with says, ‘Well, we don’t want that,’ then it does not happen. How are you going to address that in your aid program? It seems to me that if you are going to say, ‘We will give training for dealing with these sorts of issues,’ and the country says, ‘Well, look, we’d rather it go into water, thank you very much’—

Prof. Joseph —Sorry? We would rather it go into—

Mr RUDDOCK —If they say, ‘We’d rather put it into bringing water into rural communities than spending it on sending a whole lot of people to train on human rights programs in Australia,’ which is one of the suggestions that is made in some of the papers.

CHAIR —I think Professor Joseph is keen to answer those comments.

Mr RUDDOCK —I am just trying to be challenging!

Prof. Joseph —Yes. You have traversed a lot of ground there. You yourself phrased the argument as civil and political rights and economic, social and cultural rights being equivalent, and I totally agree that they are equivalent. That does not mean therefore that economic, social and cultural rights have priority. Equivalence means equivalence. We are well aware of the arguments that might be made. It has been part of the Asian values argument that the priority should be economic development and therefore economic development comes before civil and political rights, Singapore perhaps being a perfect example of that.

In response, I would say we do not know how Singapore would have developed had it actually had civil and political rights. Singapore has proven that a country can develop without strong civil and political rights. It does not mean that civil and political rights retard economic development. That seems to be the assumption. I think that the argument that economic development takes priority assumes that civil and political rights somehow retard economic development. I am no economist, but people like Armartya Sen have written extensively on this: that civil and political rights in fact can facilitate economic development.

Mr RUDDOCK —What was the name? Singh?

Prof. Joseph —Armartya Sen.

Mr RUDDOCK —I thought it might be Singh, because looking at India, for instance, they have—

Prof. Joseph —Or Japan.


Prof. Joseph —There are many countries. There are many reasons why I think civil and political rights can grow hand-in-hand with and facilitate economic development. Accountability is one—accountability which can lead to the uncovering of corruption, because I think we could all agree that corruption is terrible for economic development. In the worst-case scenario you see countries where the opposition is so oppressed that it has no outlet apart from turning violent, and so you have some countries that have just gone through cycles of violence and have not got off the ground, largely because no-one has got on with the business of governing.

I do not have a lot of experience in being in, say, intergovernmental organisations, but it seems that a lot of the arguments are made at the most abstract level, that economic development should be the priority, full stop, and those arguments have to be queried, perhaps nicely, by asking for details, rather than the argument being at such a high level of abstraction: ‘These are Asian values,’ and, ‘These are Western values.’

Similarly, you used the example of Fiji. Where is the evidence that it is actually part of Fijian culture to overthrow the government and not have a vote? Is that what the Fijian people really want: to have no democracy for—how long ago was the coup? Ultimately, it is going to be eight years.

Mr RUDDOCK —I think it has been a democracy for Fijians but not for those that have been immigrants—a democracy that takes into account the chief system.

Prof. Joseph —I am still not convinced that most Fijians are happy with the idea that, under current plans, they will not get an election now for eight years. These arguments might have been made in Indonesia, yet Indonesia now has free elections. It is not so long ago that it had no elections, and the same argument was made: ‘This is not part of our culture.’ I think one way of countering that argument, but again it has to be done diplomatically—

Mr RUDDOCK —You are supporting my view that we ought to be more assertive in relation to these matters?

Prof. Joseph —Assertive, but I would stress that economic, social and cultural rights are equivalent. I am not sure if in your question you are implying that they should not be equivalent. You moved from the fact that they were equivalent to that equivalence then being used to prioritise, and that does not make sense to me, because if they are equivalent there are no priorities. They should move forward together. If Australia wants to be involved in a regional mechanism—whichever region you are talking about—with the countries that you are talking about, I do not think we are going to get very far if we do not include a strong component of economic, social and cultural rights.

Mr RUDDOCK —I will make it very clear: I am not suggesting that, but I am concerned that it derails the argument about civil and political rights, because there is an assertion—

CHAIR —I suspect this theme is going to come up quite a bit in our questioning. Perhaps we should move on to Maria.

Ms VAMVAKINOU —In fact, Philip has raised a lot of the issues. I was thinking about this, and thought a little bit more about it as I heard you speak: you have made it very clear that Australia should not be seen to be the country that leads this initiative, for the obvious reasons, whether we agree with them or disagree with them. That seems to be a perception. My question to you is hypothetical, but we probably know enough about the region to foresee any outcomes. Let us say we were to encourage Singapore or Fiji to lead this particular initiative. How much more success would we have? What would be the strengths of Singapore being seen to be leading this initiative and what would be the disadvantages? The same, of course, applies to a country like Fiji in the Pacific. That is going from the Pacific to the south-east. I would like your views on that.

Dr McBeth —The two examples that you have chosen are probably more flawed than—I was going to say ‘at least as flawed as’—Australia but for very different reasons. We are saying that the problem with Australia leading it is not that Australia is this human rights pariah—far from it. The problem is that Australia and New Zealand are perceived to be the only Western style states. There is a perception of alienness within the region and it gives states an excuse to either reject the idea outright or simply adopt it at a formal level and not embed it in their legal and social culture.

Prof. Joseph —This leaves us open to arguments, whether they are correct or not—I am not saying that the arguments are correct—of cultural imperialism.

Ms VAMVAKINOU —I understand all of that. But you have to face reality: how do you get this initiative going, in light of all these issues? I have a view that a lot of people in our neighbourhood have a totally different attitude towards human rights and priorities. As a result, I do not know whether we would get anywhere. But if you were to give the opportunity to two extreme countries—and I have chosen these two countries because they are extreme—assuming we want to be involved but we cannot be seen to be leading it for the reasons we understand clearly, where would we go and how would you see it?

Dr McBeth —The Singapore and Fijian examples would drag it down, for the other reason that I raised—namely, the lowest common denominator reason.

Ms VAMVAKINOU —Yes. They are the challenges, though, aren’t they?

Dr McBeth —Precisely. It seems that the idea is not any one state leader, unless you can find a cleanskin state to do it, and who would that be?

Prof. Joseph —I think it is fairly clear in the Pacific that Fiji could not lead it right now.

Dr McBeth —Not at the moment.

Ms VAMVAKINOU —No, it would not. But that is the reality we have to deal with. I have chosen these two countries, because here we are, a country that has an acute interest in the human rights issue in the area. We have battled problems upon problems and we do not seem to be getting anywhere. We can put forward as many models as we want, but we do not seem to be getting anywhere, so we need to almost reverse the process and say, ‘Right; rather than us going forward that way, how about you guys?’ I think the answer to that is that it will not work. How can it be done?

Dr McBeth —If it could be done at a regional cooperative level rather than—

Ms VAMVAKINOU —How do you start from the lowest common denominator?

Dr McBeth —I would have thought a group like the Pacific Islands Forum, in which no one state is seen to own this initiative, would be the best way forward. If you identify any one state, there are different problems, depending on which state you pick; we absolutely agree with that. I do not think anybody has the solution to that.

Prof. Joseph —My personal opinion—I am not being optimistic here—is that I am not sure you are going to get anywhere with ASEAN nations at the moment. ASEAN at the moment are trying to negotiate their own human rights mechanism and cannot get any agreement even amongst themselves. That is in a forum which is much more culturally similar than if you add Australia. I think that not all but most ASEAN countries would be very resistant to Australia being involved in that.

I am not a political scientist but, if you chop out ASEAN, the idea of Australia joining with India may have some value. But I think the first step Australia should take is to really focus on the Pacific and maybe add Japan. Japan could be a good partner in this endeavour. Realistically, especially when one can see what is happening in ASEAN and the way that the human rights mechanism does not seem to be going very far at all, I am not sure that ASEAN or west of ASEAN is going to help, which means focusing on the Pacific. The Pacific is not my area of expertise. You have mentioned Fiji, which is probably the biggest country in the Pacific. At the moment it is simply not viable.

Ms VAMVAKINOU —It does have a human rights commission.

Prof. Joseph —It does have a human rights commission, which is not viewed as Paris compliant at the moment. I do not think that other Pacific countries are really looking to Fiji as some human rights icon at the moment, which means that there could be value in discussing it with smaller countries like Samoa or even the Solomon Islands. I name those two countries because they seem to have actually ratified a treaty. They are not the biggest countries in the world but, if you are talking about that region and if Fiji is not viable, there are no particularly big countries. It is something that has to be worked out: which countries are you really talking about? I am not trying to be pessimistic, but I just do not see, in the near future at least, Australia being able to join with ASEAN. It may be able to join with those countries in ASEAN which are a bit more progressive on human rights. Historically, that has included Thailand, and Thailand has got its issues right now, and maybe India. But again, as you go further west, it seems less likely. It does not seem geographically logical, from India’s point of view, even if it may seem logical from our point of view. I am saying that to be pessimistic and I am not a political scientist. That is just my view. It is really clear, when you say, ‘Which countries?’ and then just plonk out Singapore and Fiji, that you have to work out which countries you are actually talking about.

Another option—and we say this in our paper—is to focus on the countries which are members of the Asia Pacific Forum which in fact do have Paris-compliant national human rights institutions, or at least institutions which are on the way. Fiji did have such an institution, but it does not at the moment. Hopefully, Fiji one day will come back into the fold. It is not looking great at the moment. Again, that is an odd grouping, because the Asia Pacific Forum countries are scattered, but at least that is some sort of grouping which might help, and there has been some commitment made by the countries involved, in that they have got Paris compliance or NHRIs which are on the way to becoming Paris compliant.

Mr RUDDOCK —What if you took out Papua New Guinea and Fiji and said, ‘We’re going to deal with Pacific islands and we’re going to establish a national institution’—we will fund a national institution which they establish, recognising that none of them could establish, and reasonably fund themselves, an individual institution? Samoa is interested in these things and we have talked to them—I have anyway, when we have had delegations here. They are interested, and you could have Samoa, Tonga, Niue, the Cooks, the Solomons, Vanuatu. Is there any other country? Does the Caribbean have a sort of—

Prof. Joseph —The Caribbean would be part of the inter-American convention. I guess we were thinking that the Pacific may even extend to Papua New Guinea and Timor-Leste. In fact, now that you have mentioned Papua New Guinea, that is another potential powerbroker and one at the moment that would be more suitable than Fiji.

Mr RUDDOCK —I have problems with Papua New Guinea because of corruption—it is endemic and it impacts on a lot of institutes—but it has an institution, doesn’t it?

Prof. Joseph —I am not sure if PNG has a Paris-compliant NHRI.

Mr RUDDOCK —It may not be Paris compliant.

Prof. Joseph —I think the only one in the Pacific was Fiji.

Mr RUDDOCK —The idea is not to have a body that oversights but to have a body that is there to advise and counsel, a bit like HREOC does, but that has representation from each of the jurisdictions and then they select who they want to work within it.

Prof. Joseph —The Asia Pacific Forum is probably a good start there. Given we do not have a regional mechanism in Asia or the Pacific, these NHRIs and the networks that they are forming are de facto filling that gap at the moment. One option may be to develop that and see where it can go. There is at least government buy-in on these. Governments are involved in at least setting up the national human rights institutions, so that could be another option. That would include some ASEAN countries—Indonesia, for example—and it would be quite a strong grouping, if a bit odd geographically because they are a bit scattered. I think Palestine is even an observer in the Asia Pacific Forum.

CHAIR —Yes, so are places like Jordan, which gets us back full circle to where we started in the discussion about some form of regional mechanism. One of your opening remarks, if I can summarise, was firstly that we should focus on our own backyard before we start focusing on others, and secondly—and this has come not only from you but from others—that any regional forum has the potential to do more damage because it can become so lowest common denominator that it legitimises bad practice rather than encouraging or producing better practice.

If you talk about the Pacific—and this has been a big focus of the inquiry—everybody acknowledges that there are significant cultural and political differences in the ASEAN countries and also, if we want to be realistic about how far we can make something happen, that our sphere of influence should probably be the Pacific islands; not exclusively, but that has certainly emerged in lots of discussions. Now that we are going back and talking about the role of a regional body within the Pacific islands, that might have some impact.

You can see some value in involving those countries who have an interest in at least promoting human rights, can’t you? They may not do it for whatever reason, whether it is their size or the capacity of their governance to be adhering to or implementing international treaties and mechanisms, but at least they have a willingness. In your view, is there the possibility of those countries at least coming together in some form of body and having an influence over others that we would like to see improve, even to the extent of Fiji and countries like it? That is a dilemma that we are currently facing. That is the purpose of this inquiry.

Prof. Joseph —It is hard to talk in the abstract. Of course there could be value. It could also be counterproductive. Maybe a start even for such a body is just, as a regional body, to discuss human rights issues. One of those issues, to help ensure it does not undercut the idea of universality and existing human rights standards, is to discuss why it is that so few countries in that region have ratified any of the treaties. Is the reason a lack of capacity? If that is the reason, our aid program could help.

Is it because of ideological opposition? If so, what I was getting at with my long answer to Mr Ruddock is the idea of engaging cultural relativist arguments at a specific level, because I find that a lot of the arguments are put at an extremely general level, which is almost useless because it is hard to argue in the abstract. But it is not aggressive to say, ‘Okay, exactly what is it about the ICCPR, about freedom of expression, that doesn’t fit in?’ That is just putting the onus on them. ‘Okay, explain what it is that is such anathema to your culture.’ It may even be based on some misunderstandings.

There are a lot of misunderstandings even in Australian society, for example, about human rights. A lot of people do not understand that most human rights can be qualified; that freedom of speech does not mean the freedom to say whatever you want, whenever you want, in any circumstance. Given that that misconception can prevail in Australia, it almost certainly can prevail in other countries, so at least starting a dialogue could open the way to more participation by those countries at the international level. It might sound strange, but that could be a stepping stone to a realistic regional initiative.

CHAIR —It is an interesting point. To take a specific issue, do you think realistically a discussion around the cultural issues concerning domestic violence and the treatment of women in Pacific island nations would move us on, or do you think that that conversation would end pretty quickly? Is it practical to say, ‘This is the way we start to talk about issues’?

Prof. Joseph —A lot of countries have come a long way, at least in rhetoric. I am not here to analyse exactly how domestic violence is being dealt with on the ground. Having been pessimistic before, I would be optimistic this time. I do not know that in many countries government officials would say, ‘Domestic violence is allowed in our culture.’ Then it can get down to specifics of what can be seen as domestic violence. I do not think domestic violence would be such a problem. The broader area of sex discrimination is more problematic.


Prof. Joseph —But it is moving in little steps. Nothing is going to change overnight. We need to have dialogue over the specifics, rather than a lot of the cultural dialogue which, from what I have heard when I have been in the United Nations, say, is just a broad statement: ‘This is against our culture, full stop.’ There are no specifics, so exactly which bit is it? I do not deny that domestic violence, unfortunately, occurs in all societies and I am sure that a lot of it is culturally based, but I think you would find a government receptive to discussing it at a governmental level.

It is interesting: historically, which human rights treaties do countries which have been reticent about signing human rights treaties tend to sign first? The CRC and CEDAW. So it could be quite fruitful, but recognise that you are not going to find agreement immediately.

CHAIR —Thanks.

Mr RUDDOCK —I have some questions about the Arab Charter on Human Rights.

Prof. Joseph —I will try! It is interesting, because it is difficult to find.

Mr RUDDOCK —You have referred to it in terms of west Asia being covered by it.

Prof. Joseph —It is difficult to find information on it.

Mr RUDDOCK —Is it?

Prof. Joseph —Because most of it is in Arabic.

Mr RUDDOCK —I am interested in how it applies. Is it a regional set of arrangements that are working and changing attitudes to human rights? Is Saudi Arabia a member of it? Is it an area that you could take people to and say, ‘Have a look how this region has changed’?

Prof. Joseph —It has only been in force for one year. There was an original Arab charter in 1994 and it never got off the ground. I am not sure that anybody ratified it. Then it was revised—I think it was around 2004—and had seven ratifications, which was what it needed. It came into force early last year. I must confess, I have not tracked it a lot since then. Given that it has only been in force one year, there is not likely to have been a lot to track. But it is envisaged to be a fully-fledged regional system, including an Arab court of human rights. I have seen an English translation of it and I have read an article about it. What was interesting about the two things was that it seemed like the article was reading off a different English version. That is an obvious problem when it comes to translation.

Mr RUDDOCK —So where is the leadership?

Prof. Joseph —The Arab League; just as, for example, the European convention is a creature of the Council of Europe.

Ms VAMVAKINOU —Which country, though, within the Arab League?

Prof. Joseph —I am not sure.

Ms VAMVAKINOU —The Saudis have been at the forefront of a couple of initiatives. I am interested in this. I have no idea how to get that paper or that translation. Could you send it to us?

Prof. Joseph —We could send it to you, yes.

Ms VAMVAKINOU —Send it to the secretariat, I think.

Prof. Joseph —Yes. The biggest concern about the Arab charter, from memory—we have just had Easter, so I have not been studying my human rights recently—was the overuse of the word ‘lawful’; that this particular right—for example, freedom of expression—may be subject to lawful restrictions.

Mr RUDDOCK —Some of the exceptions that we speak of.

Prof. Joseph —But the way we are used to it, say under the ICCPR, is that it may be subjected to exceptions which are necessary and not arbitrary, whereas when all you have is the simple word ‘lawful’ that might mean you could just have any law, no matter how unreasonable. So there is a concern that the limitations might allow for countries, so long as they enact the law—and let’s not forget that at least that provides for some sort of law—to in fact enact an extremely oppressive law, whereas the way that is drafted, say, in the ICCPR or the European convention it attacks all unreasonable laws, whether they be lawful or not. That is one area. I will not go further because I will be trying to grasp it out of my memory, but we can send you the papers. I have got an English translation of it. There is at least one article and, in the year since, there have probably been more. My guess, however, in terms of the mechanisms under it, is that, given it has only been one year, it is quite likely that nothing has happened yet. It can take a while for these things to get off the ground.

Senator MOORE —On the whole area of cultural reasons for not complying, I cannot see where anyone has dug deeper on that yet. It just seems to be, as in the UN, that there are bland statements such as, ‘We can’t accept this for cultural reasons,’ and that is permeating all the submissions we have received: ‘We have to be sensitive to the cultural issues.’ It is interesting that we have been talking about this for a long time and no-one seems to have identified what the cultural issues are.

Another question is how you think the APF could change, because the role of the APF is permeating the submissions as well, and it does seem to have a research component, a training component and a support component, which are the things we are talking about. Does there need to be a change for the APF to actually take that forward?

The third question is on the recommendation about changing the focus of a parliamentary committee. I am fascinated to know what you mean by that. It is in one of your recommendations. It is either yours or the next people’s.

Prof. Joseph —I do not think it is ours.

Senator MOORE —It is the next people. They talk about the need for a strengthened parliamentary committee. There are two questions, then. In terms of the APF, it is there, people talk highly of it in all the submissions, and they say it can be a mechanism. But, if it is going to be a mechanism, how does it have to change to make it work?

Dr McBeth —As far as the first question is concerned, I think we are in agreement on that, on the premise of your question. That is why we are advocating that Australia ought to be engaging with these countries to find out exactly what it is that they are objecting to.

Senator MOORE —And no-one has done that?

Dr McBeth —Not in the Pacific region, to my knowledge. I stand to be corrected.

Miss Contini —No.

Prof. Joseph —I think you are generally right. I am not quite sure what you mean when you say no-one has done any work on it.

Senator MOORE —There has been some work, yes.

Prof. Joseph —There are many academic papers, and many excellent academic papers, on the issue of cultural relativism, explaining why it is a valid argument or why it is not, but I think there is a need for some more empirical work on exactly where the cultural divides are.

Senator MOORE —Yes, so that it is not just a bland statement.

Prof. Joseph —I am going to put in a plug here. We have put in for an Australian Research Council grant on this very issue. If you would like to support that, we would be very happy!

Senator MOORE —The comment is made consistently, ‘You’ve got to be careful and sensitive to the cultural issues.’ It is like a mantra. But, if you do not have them clearly identified, it makes it difficult.

The Uniting Church have put in a detailed submission and they list a whole lot of areas where they have concerns. A lot are to do with religion, as you would expect. They use India as an example, and human rights abuses against Christians on the basis of their trying to change people’s religion. The Constitution of India clearly says that there is no state religion, and it is not lawful to misuse people because they are trying to convert, yet this paper says that the operations are really different. That is the kind of thing to struggle with: what is a lawful reason that something cannot happen as opposed to actuality?

Dr McBeth —I think we are in agreement that the work needs to be done to isolate what the objections are, if there are any. I suspect that many of the nonratifications arise simply from it not being a priority; these countries have got other things that they are directing their resources to.

Senator MOORE —Does it cost anything?

Dr McBeth —It is just not at the top of the list, or it may be misunderstanding or lack of resources, whatever the case may be. As we have said already, if there are genuine political or cultural objections to certain elements, we should find out what precisely they are.

Senator MOORE —Country by country.

Dr McBeth —Country by country, treaty by treaty. ‘Why is it that you haven’t ratified this treaty?’ I think we are in agreement on that.

Prof. Joseph —On your example of India, I have not read the Uniting Church submission so I do not know exactly what they are talking about, but you get various cultural arguments. At a governmental level, the government itself—in this example the Indian government—can actively disagree with something, and it does not sound like that is what is happening in this case. If the Indian government were to be quizzed, ‘Okay, how are Christians treated in this situation?’ they would be snookered by their own law. They cannot say, ‘Well, this is anathema to our culture,’ because their own law in fact says ‘freedom of religion’. Obviously, there will be the fairly elastic limitations, but I think it is almost the process, when countries do start to come on board with a particular human rights interpretation, that it will be enshrined in law first and it can take a long time to distil down through society.

That is in the case where something really is culturally held. I think some cultural arguments by governments—and I alluded to this with Indonesia circa 10 years ago—are completely self-serving. It is very self-serving to say, ‘My people don’t like voting,’ because, funnily enough, that means you stay in power forever. There are some cultural arguments which are bogus. There are also some which are real, but the government may be incrementally coming along, or it may just be for show, but by the very existence of that law the government could be snookering itself and almost stopping itself from using the cultural argument in the future. I am just using India because you used that example.

Senator MOORE —Yes, because it is clearly detailed in the submission.

Prof. Joseph —It would be difficult in that situation for India to say, ‘That’s just our culture,’ so then it becomes a question of, ‘Okay, why is it not being enforced?’ Then what can also happen is outright denial and arguments over whether something has or has not happened, and that is also difficult, but at least it is getting out of that murky cultural relativist argument. Your second question was about the APF.

Senator MOORE —Yes. How does it have to change to do the job you think it could do?

Dr McBeth —My understanding is that at the moment it is very much an informal network of national human rights institutions. They are doing very good work in terms of engagement and fact-finding in investigation, and they are engaging in some very interesting research projects, but they do not really go any further than that. They are not an enforcement body. They are an advocacy body to some extent, but it is very much a federation of national institutions, and the national institutions themselves have very different mandates from one country to another. So it is extremely loose, and it is an extremely good start, but it is a long way short of the version that they have under the Council of Europe or something of that sort.

Prof. Joseph —It could almost evolve from the Asia Pacific Forum to become the Asia-Pacific human rights commission. At the moment it is, as Adam said, this fairly loose network. It is an advisory body, effectively, and a networking body. It is not ‘a body’. It needs to become more corporeal and become—I do not know—a commission which, for example, might have a multinational membership and be able to put forward recommendations to the satellite national commissions or something like that, but actually have a standing body of some sort. At the moment it is just a tiny office in Sydney, which does great work, but it is a multinational network, probably not a multinational body.

Dr McBeth —If we are going to have a more substantive regional commission type body, it would have to be underpinned by a regional treaty or an instrument of some sort. That would probably be a really good body to start the process of getting an instrument together—the negotiating process; the engagement process; what we want in; what are the fundamental objections to certain rights or the way that certain rights are written and so on. That would be a really effective body for getting a draft together but, in order for the draft to have any legal significance, it would then have to be adopted by each of the countries involved. A legal mandate is the answer to your question. It cannot become a quasi-commission until it has got a legal mandate, but it does look well placed to put in place the first steps towards that, in my view.

CHAIR —I have a follow-up question. From talking to people involved in the APF, one of the very productive points is, obviously, that the informal networking has that level of informal influence, which sometimes can be more effective than formality, and it is bringing together the three key areas involved in human rights—the institutions, the NGOs and governments—and the APF’s strength really lies in bringing those three, sometimes very much at odds, bodies together. When you start talking about commissions and legal mandates, I wonder whether losing some of that informality might actually be a disadvantage. I do not know.

Dr McBeth —In which case maybe you would create a separate body, and maybe the APF puts together some of the groundwork for creating an instrument on which a commission would be based, and the commission is a separate entity, and the APF continues doing much as it does today.

Prof. Joseph —Having said that, I am not sure that I am in a hundred per cent agreement with Adam. When I was saying the APF could evolve to become an Asia-Pacific human rights commission, I was not necessarily thinking of a commission in terms of, say, the Inter-American Commission on Human Rights or the former European Commission of Human Rights, which did operate under a treaty and make decisions and so on. It was that it could be more like a regional version of a national human rights institution, which are underpinned by some sort of legal instrument. For example, HREOC, or the AHRC—its website still says HREOC—

CHAIR —Yes, we know what you are talking about.

Prof. Joseph —Yes. The AHRC, the Australian Human Rights Commission, does not make decisions as such. It still has that advisory component. Maybe that is the halfway house. The idea of a commission of the sort that Adam is talking about, and a treaty and stuff, ultimately could be a good idea, but again—it is like my opening statement—we are talking mid to long term. That is not going to emerge out of the air. Even turning it into some sort of regional human rights institution is more formal than what it is, but it is not as formal as something like the Inter-American Commission on Human Rights, and it could leave most of the legwork to the satellite national commissions. But it just becomes a bit more formal in that respect, whether it be an explicit or implicit mandate that this is the regional body from which new things might evolve, and eventually it may suggest, ‘Okay, we don’t want to lose our informal role, so we will set up this new body,’ and what it is called is irrelevant—commission, council, whatever.

Mr RUDDOCK —You have given us a very interesting article on ratification. I am displaying my own ignorance here and I should perhaps have done some more work on it: do we know who the Pacific Plan Task Force is? Have we had any submission from the Pacific Plan Task Force?

CHAIR —No, we have not. Do you recall Imrana Jalal, the woman that came and spoke to us about human rights in the Pacific? I think the Pacific Plan Task Force educates politicians and runs those sorts of workshops around issues. I could be wrong about that, but I am pretty sure.

Mr RUDDOCK —I am just looking. It is very much in this Jalal article.


Mr RUDDOCK —It has a positive role. It is spoken of as being the body that is in fact liaising—the way I read this—on the implementation of the accession.

CHAIR —We need to go back and reread Imrana’s submission.

Prof. Joseph —Implementation of the accession to what? To human rights treaties?

Mr RUDDOCK —These are the ones that are doing all the treaty accessions in the Pacific.

Prof. Joseph —Okay. There are not that many at the moment.

Mr RUDDOCK —I am just reading the article. It is the Pacific Plan.

Prof. Joseph —We have got here a table, if you are interested.

Mr RUDDOCK —Yes, I have seen that table.

Prof. Joseph —Did we submit that? This is just a couple of ratifications.

Mr RUDDOCK —No. I have seen bar charts that had which ones had been acceded to.

Prof. Joseph —That is the Asia and the Pacific. You can see the Pacific itself is very poor in terms of ratifications.

Mr RUDDOCK —But that is something it was working on: a national human rights treaty system. What I am really looking at is this question as to whether there ought to be a further investigation in relation to those issues. It does not seem clear to me that the reasons are other than just economic.

Prof. Joseph —I think they could easily be capacity building and may be, for example, with the economic covenant.

Mr RUDDOCK —Why would you give that a priority? I mean, ‘We’re perfect. Everybody knows each other. There are no human rights problems.’

Senator MOORE —Or, ‘We’re sinking.’


Senator MOORE —The ones that are suffering from the environmental crises.

CHAIR —Yes, that is right.

Prof. Joseph —One thing, for example, might be to find out why Samoa ratified the ICCPR, then. Why did the Solomon Islands ratify the Pacific Plan? There were some reasons and I think these countries are becoming more interested. When you say it is not a priority, it has not been a priority for 40 years.

Mr RUDDOCK —I just do not know who the task force is, who the people are, and whether they are still going around and talking to people about it. We ought to have a pretty clear picture of that.

CHAIR —We can get some information on that.

Mr RUDDOCK —Thank you for drawing my attention to that article. I do not feel as ignorant as I appeared.

Prof. Joseph —I do not think it was us.

CHAIR —I am looking for it. I cannot find it.

Mr RUDDOCK —It is here.

Prof. Joseph —You were looking at it, but I do not think we gave it to you.

CHAIR —Mr Ruddock is looking at it, but it is not part of a submission.

Miss Contini —It was included in the papers. It is Imrana?

Senator MOORE —Yes.

Prof. Joseph —If it is a good article, we will take credit for it!

Senator MOORE —But it is April 2006, and this is the other issue. A lot of this work has been done and we have been talking about it for a long time, and it is as though it is all new, and that is frustrating.

CHAIR —If there are no further questions, we might wrap it up there. I think we have occupied your time and your brains for a fair while this morning. Thank you very much, though. That was a very informative and interesting discussion. I will formally close your evidence here, but can I just say a couple of things. You will receive a Hansard transcript of the recording. If you wish to clarify or make any changes in terms of accuracy, you have the opportunity to do that. There are a couple of documents that you have said you will pass on to us; if you could give those to the secretariat, that would be great. Thank you very much. That was a very interesting discussion.

[11.03 am]