I had the opportunity to recently meet Michel Forst, who is an honorary independent expert to the Human Rights Council and General Assembly of the United Nations. He was recently in Australia as the UN Special Rapporteur on the situation of human rights defenders.
His visit took him to Sydney, Melbourne, Hobart, Brisbane and to Canberra twice – which is where I met him.
At a press conference on Tuesday, Michel Forst shared his preliminary findings and recommendations to the United Nations on how Australia treats their human rights defenders.
As a constitutional democracy that values the principles enshrined in the rule of law, one would assume Australia would have received a raving review.
However, this was not so.
The Rapporteur’s concern is the safe and enabling environment for human rights defenders – he expressed astonishment “to observe the mounting evidence of a range of accumulative measures that have levied enormous pressure on Australian civil society”.
The Rapporteur held in contrast Australia’s efforts actively campaigning at the international level for resolution in support for national human rights institutions – with the vilification of Professor Gillian Triggs – President of Australia’s Human Rights Commission.
The Rapporteur also drew contrast between Australia’s support at the UN General Assembly and Human Rights Council on resolutions for human rights defenders with the pressure and vilification activists in Australia often feel by state officials and media outlets.
The Rapporteur pointed out the contrast between Australia’s express support to the mandates of freedom of expression, peaceful assembly and association, with the reality of the most recent amended restrictive anti-protest laws and the intensification of secrecy laws and practices Australia has introduced, particularly in relation to Australia’s offshore detention processes.
Australia’s Constitution implies a freedom of political communication – which takes precedent over all other legislation, and would in fact invalidate legislation that infringed on this right – unless there is a higher conflicting right that takes precedent, such as national security, or the interest of public safety.
In line with international human rights law, it is the duty of the State to protect and promote human rights and fundamental freedoms. The State is required to take the necessary steps to ensure that all persons can enjoy, practice and access all of their rights and freedoms.
As a human right defender in the Australasia region, I rely on these international human rights principles to actually do the work that I do – with vulnerable trafficked, smuggled and displaced persons. I rely on the Australian government to support me – by providing me with the freedoms and rights to operate without restraint, to speak with freedom and to associate with those necessary to do my job.
If this is compromised – millions of vulnerable trafficked, displaced and smuggled persons are left without advocacy, representation, a voice, and at worst – substance.
The Rapporteur’s conclusion was that: “Australia could do better” – to formulate and implement legal and policy frameworks that empower human rights defenders.
So, why would the Australian Government want to empower those who constantly pester, lobby and nag the government on all sorts of human rights matters?
It is fundamentally part of a healthy democratic process of political engagement of the free citizen to take part in the governance of the society they live in, and contribute to the more meaningful discussions on what this might look like.
Of course, sometimes these conversations are ill-informed, highly emotive, do not bring solution – only disagreement, and can be a nuisance. But even then – it is all part of the process! Better to have it – than not!
Michel Forst noted of Australia – an atmosphere of fear, censorship and retaliation – expressing itself through the lack of meaningful consultations on government decisions, funding cuts to human rights defenders, the government’s antipathy of advocacy, current “gagging clauses” – referred to those who work in Australia’s detention centres and the secrecy laws that are now commonplace in the Border Force Act 2015.
The High Court of Australia has acknowledged that advocacy by immunity organisations is a vital part of the nation’s political communications, and “indispensable” to the government, which contributes to public welfare in the case of Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539, 556 .
The Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms – commonly referred to as the Deceleration of Human Right Defenders is not a legally binding instrument, although it contains various international laws and principles relevant to the support and protection of human rights defenders in their work. The Declaration outlines specific duties of States and the responsibilities with regard to defending human rights, in addition to explaining its relationship with national law.
Human rights defenders play a role in keeping the government accountable, and strengthening transparency.
Human rights defenders also have a role to play in informing government of current human rights violation taking place – as I have done countless times before the Department of Foreign Affairs and Trade, at various human rights foras on various countries and matters raised.
Access to information is a critical element of freedom of expression.
Access to justice and an independent judiciary are vital to the functioning of civil society in general, but particularly for human rights defenders to be able to do their jobs.
Advocacy is also an important process, not only for the victim in a democracy, but in it’s role in informing policy, as feedback to government on how legislative mechanisms are implemented and function, and crucial at addressing systemic problems.
In line with Resolution 27/18 of the Human Rights Council, national human rights institutions have the right not to be intimidated, harassed or experience political pressure – as a result of the work that they undertake on behalf of the vulnerable.
Human rights defenders and their partners should push back on government budgetary cuts, gagging clauses, intimidation, harassment and any other untoward or unjust response to their work – firstly for the sake of those they are speaking out on behalf of, secondly – for the sake of government transparency, and thirdly – because it is their right – as the international community has deemed it!
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