Same-Sex Couples in Australia: A Right to Divorce But What of Marriage?

On 3 August 2017, the Human Rights Committee (HRC) of the United Nations handed down a landmark ruling that Australia had breached its international human rights obligations because it did not allow same-sex couples in Australia to divorce, when they had legally married overseas. This decision comes at a time when the political temperature on the same-sex marriage debate in Australia is heating up.

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Interview with Professor Gillian Triggs: A Truly International Lawyer

For our fourth profile of Women in International Law Month, Editor-in-Chief Jennifer Tridgell sat down with the President of the Australian Human Rights Commission (AHRC), Professor Gillian Triggs. She is a highly accomplished international lawyer and academic, with experience on matters from commercial law to Indigenous rights.

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2016 – Year in Review

The past year has been incredibly tumultuous, having reset the international stage and delivering incredibly unexpected political outcomes. From an international legal perspective, while events such as Brexit, Donald Trump’s election, and the crisis in Syria have undoubtedly raised important legal questions and will likely change international law in the future, there have been numerous other significant developments.

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Russia’s failed bid for a seat on the Human Rights Council and what it means for Australia’s campaign for 2018 – Harry Aitken

Australia is campaigning for a three-year term on the United Nations Human Rights Council (HRC), commencing in 2018. While Australia’s candidacy will not be considered until next year, the Government will be looking closely at the outcome of this year’s ballot, in which States were elected for the 2017 – 2019 term. On 28 October 2016, the General Assembly nominated 15 States to the HRC by secret ballot. In a first for a permanent member of the Security Council, Russia’s bid for re-election was unsuccessful. Russia’s failure has been attributed to its conduct in Syria, with one diplomat commenting ‘[t]hey bomb a hospital one day, they run for the Human Rights Council the next. And they wonder why they missed the cut’. The issue for Australia, which is facing ongoing criticism of its treatment of asylum seekers on Manus Island and in Nauru, is the extent to which a State’s human rights record can frustrate its chances of election to the HRC.

This post will first consider the voting procedures of the HRC, followed by commentary on what Russia’s failed bid might mean for Australia’s 2018 campaign.

 

The Human Rights Council

The HRC is of fairly recent origin. It was brought to life in 2006 by General Assembly Resolution 60/251 and was given responsibility for ‘promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner’. The HRC is the successor to the United Nations’ Commission on Human Rights and has new functions, including responsibility for a universal periodic review of each State’s compliance with its human rights obligations. There are 47 seats on the HRC, which are divided between the five official UN regions in the following way: Africa (13 seats); Asia (13 seats); Latin America and the Caribbean (8 seats); Western Europe and Other (7 seats); Eastern Europe (6 seats). Australia is part of the Western Europe and Other group, which also inlcudes the US, Canada and Israel. Russia is part of the Eastern Europe group. One third of the HRC is up for election each year and members serve three-year terms.

An outside observer would be forgiven for assuming that only States with unblemished human rights records would be fit to sit on the HRC. Most legal systems abide by the idea that one criminal is not fit to judge another, and so individuals convicted of serious crimes are precluded from appointment to judicial office. However, this logic does not apply to the HRC. States that have failed to meet their own human rights obligations are appointed to judge the compliance of other States with the same obligations. This is ironic, but it is also a realpolitik of the institution. There are no 47 States with perfect human rights records. There are also no absolute rules on membership.

Resolution 60/251 requires members of the General Assembly to ‘take into account the contribution of candidates to the promotion and protection of human rights’ when voting for HRC candidates. Yet it does not preclude members from voting in favour of States that have violated their human rights obligations. The Resolution requires members of the HRC to ‘uphold the highest standards in the promotion and protection of human rights’. But this does not prevent a member from abusing a human right. The words ‘highest standards’ suggest that conduct is to be measured against the practice of other States rather than the rules in human rights treaties. The Resolution empowers the General Assembly by a two-thirds majority to suspend the rights of membership of a member of the HRC if the member ‘commits gross and systematic violations of human rights’. Yet this measure is hard to deploy, because it requires a super majority. It also has a high threshold: the word ‘and’ dictates that it cannot be triggered by a single gross abuse or systemic minor abuses. Finally, it has a suspensive rather than a terminative effect on membership. The gaps in the rules leave room for a General Assembly member to elect a candidate by reference to political as well as legal standards. This means that strategic alliances, political favours and diplomatic clout all play some part in the election of candidates.

Does Russia’s failure in this year’s election suggest there is a limit to this? Does it reveal that there might be a point at which a State’s conduct is so egregious that the idea of nominating it to the HRC becomes untenable, even if there are political circumstances that would otherwise sway the General Assembly to vote for it? Before answering these questions, it is necessary to consider the 2016 vote in more detail.

 

Russia’s bid

The General Assembly nominated Hungary and Croatia to the HRC as the two representatives of the Eastern European group for the 2017 – 2019 term. They received 144 and 114 votes respectively. Russia narrowly missed out, receiving 112 votes. This may still seem like a lot of votes, but it represents a significant reduction from the previous election in 2013 in which Russia received 176 votes. The previous vote was held on 12 November 2013, which was before Russia invaded parts of Ukraine and annexed Crimea in 2014, and intervened in the Syrian Civil War in 2015. It also follows a significant lobbying effort against Russia’s candidacy by human rights groups. This included a letter to the General Assembly, signed by 87 prominent individuals and NGOs, urging members to ‘carefully consider whether Russia’s Syria abuses are compatible with the principles and aims of the world’s principal inter-governmental human rights body’. It is worth observing that Saudi Arabia, despite drawing wide criticism for its intervention in Yemen, was elected to the HRC. But that is likely due to the fact that it ran uncontested in the Asia-Pacific group; there were four seats available and only four contenders.

Russia is not the first State whose position on a human rights body has been jeopardised by its failure to adhere to international rules. In 2011, the General Assembly suspended Libya’s membership of the HRC over concerns about Muammar Al-Qadhafi’s violent crackdown on anti-Government protestors. And in 2001, the US was voted off the Commission for Human Rights (including by some of its allies) over its failure to support UN institutions and various international rules.

Diplomats have labelled the rejection of Russia’s bid for the HRC ‘historic’, as it suggests that candidates’ human rights records play an important role in General Assembly voting behaviour. Thus, powerful States, routinely elected to international bodies, are not immune from this. Notwithstanding this, the success of Saudi Arabia shows that other factors, like the extent of competition with other candidates for the HRC, will play a role. Moreover, the continued appointment of China and the US, who by no means have unblemished human rights records, suggests that the threshold for preclusion is high.

Australia’s campaign

Australia’s nomination to the HRC is far from assured. It will not be in the same position as Saudi Arabia as there are more contenders than there are places. Spain and France will also be campaigning for a seat for the Western European and Others group, but only two spots are open for the 2018 – 2020 term. Those States are likely to garner strong support from fellow EU members.

Russia’s failure suggests that Australia’s human rights record will be an important factor in the election. Australia’s treatment of asylum seekers has attracted significant global attention, including in Australia’s own universal periodic review in 2015. Australia has also been recently accused of breaching its international obligations with respect to offshore detention centers by the UN Special Rapporteur on Torture and Amnesty International. Australia’s campaign focuses on its human rights successes in other areas – like abolition of the death penalty – but these may not mitigate its high profile failures in other spaces. Moreover, its new plan to prevent boat arrivals from ever obtaining any type of Australian visa is unlikely to improve its image.

As recent history has shown, States with poor human rights records are habitually voted onto the HRC. But Russia’s failure is a heartening reminder that, at least to some extent, a State’s compliance with its human rights obligations is a factor in how General Assembly members will vote. This fact, along with strong competition for seats, should give Australia cause for concern for next year’s election. If Australia is unsuccessful, it would be a set-back in the short term. But it would also create a new pressure point for reform by demonstrating that the way that we treat those at home will affect our influence abroad.

 

Harry Aitken is the former Editor-in-Chief of the ILA Reporter. The views expressed in this article are solely his own.

How are the right to food and customary law linked? An Australian and South African comparison – Anna Bulman

Prior to colonisation, African peoples and Australian Aboriginal and Torres Strait Islander peoples lived in close connection with the land and environment, and governed themselves according to their own complex systems of law. With the colonies came completely different legal systems that were imposed onto the captured land, and which failed to properly recognise the existing structures.

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Resolution 29/22: Does international law protect ‘various forms of families’? — Giulia Dondoli

In July 2015, the United Nations Human Rights Council issued Resolution 29/22 on the protection of the family as the natural and fundamental group unit of society. The Human Rights Council requested that the Office of the High Commissioner for Human Rights (OHCHR) prepare a report on the protection of the family and present it at the 31st session of the Human Rights Council. Such a report is a relevant step forward for lesbian gay bisexual and transgender (LGBT) parent-families’ rights within the United Nations aegis.

Resolution 29/22 focused on issues related to single-headed households, protection of children, disparity of household responsibilities between men and women and the protection of disabled members of families. To prepare the report, a note verbale was sent; 24 states and 81 civil society organisations responded with their input to the OHCHR. In particular, Denmark pointed out that Resolution 29/22 does not ‘properly recognize [sic] the fact that various forms of families exist’. Furthermore, the United Kingdom, the United States, and organisations such as Sexual Rights Initiative, and OutRight Action International, asked the OHCHR to consider LGBT parent-families.

Indeed, in the report submitted by the OHCHR to the Human Rights Council pursuant to item 37 of Resolution 29/22 (OHCHR report), the OHCHR states that there is no definition of ‘family’ in international law, and that there is a general consensus within UN documents that the concept of ‘family’ must be understood in a ‘wide sense’. While states maintain a margin of appreciation in defining the concept of family (para 26), the report encourages states to ensure that children born in de facto unions and in LGBT parent-families have equal rights of those born from married and heterosexual couples (para 42).

However, the OHCHR report also reiterates that men and women of full age have the right to marry (para 28. See also article 16 of the Universal Declaration of Human Rights and article 23(2) of the International Covenant on Civil and Political Rights (ICCPR)), and this right can only be understood to mean that a man can marry a woman and vice versa. Indeed, in 2002, the UN Human Rights Committee clarified in Joslin et al v New Zealand that the expression ‘men and women’ denotes that only different sex couples have the right to marry, because the drafters of the ICCPR considered marriage to mean an exclusively heterosexual institution (Luca Paladini, ‘Same-Sex Couples before Quasi-Jurisdictional Bodies: The Case of the UN Human Rights Committee’ in Daniele Gallo, Pietro Pustorino, Luca Paladini (eds) Same-Sex Couples before National, Supranational and International Jurisdictions (Springer, Heidelberg, 2014) 533 at 545). Nevertheless, the OHCHR report also stresses that the Committee on Economic, Social and Cultural Rights has called upon states to provide some sort of legal recognition — for example civil partnership acts or legal recognition of de facto couples — for same-sex couples (OHCHR report, para 27).

The prohibition of discrimination on grounds of sexual orientation and gender identity is a politically controversial issue and a developing concept in international human rights law (Frederick Cowell and Angelina Milon, ‘Decriminalisation of Sexual Orientation through the Universal Periodic Review’ (2012) 12 Human Rights Law Review 341 at 344; Ronald Holzhacjer, ‘State-Sponsored Homophobia and the Denial of the Right of Assembly in Central and Eastern Europe: The “Boomerang” and the “Ricochet” between European Organizations and Civil Society to Uphold Human Rights’ (2013) 35 Law & Policy 1 at 8). In general, issues related to LGBT rights — particularly those related to LGBT family rights — trigger strong reactions from conservative/religious states and organisations. Indeed, conservative voices did not delay in expressing their disappointment with the OHCHR report. In February 2016, Global Helping to Advance Women and Children, the UN Family Rights Caucus and 26 organisations with consultative status at the UN Economic and Social Council submitted a written statement to the UN Secretary General (A/HRC/31/NGO/155) which maintained that the OHCHR report seeks to advance the status of LGBT relationships contrary to international law. The written statement continued to say that the claim that there is a general consensus within the UN on the term ‘various forms of families’ is ‘false and disingenuous’; and concluded by calling upon the OHCHR to edit the report by removing reference to the recognition of different forms of families.

In conclusion, the mention in the OHCHR report to different types of families, and the prohibition of discrimination against children born in LGBT parents-families, are much-needed steps forward in the advancement of LGBT family rights. However, at this point, it is crucial to see whether a second resolution on the protection of the family can evolve in a direction that reflects the sentiments expressed in the OHCHR report.

Giulia Dondoli is a PhD Candidate at Te Piringa — Faculty of Law of the University of Waikato.

Discussion of the ALRC’s Report on Encroachment on Rights and Freedoms in Australia – Alexis Hedger

On 2 March 2016, the Australian Law Reform Commission (ALRC) tabled its latest report. The report, entitled ‘Traditional Rights and Freedoms-Encroachments by Commonwealth Laws’ (‘Freedoms Inquiry’), responds to the terms of reference of the Commonwealth Attorney-General, which ask the ALRC to identify and critically examine Commonwealth laws that encroach upon traditional rights, freedoms and privileges – namely those recognised by the common law.

For the purposes of the inquiry, laws that encroach upon traditional rights, freedoms or privileges are understood to be laws that, inter alia, ‘reverse or shift the burden of proof’, ‘deny procedural fairness to persons affected by the exercise of public power’, ‘interfere with freedom of speech, religion, vested property rights or freedom of movement’ or ‘retrospectively change legal rights and obligations’ (Freedoms Inquiry, pg. 5).

The ALRC, in addressing the mandate, considered the source and rationale of each right, and the protections afforded through it, under both Australian and international law. The Report observed that the Australian Constitution ‘expressly protects a handful of rights’, and has been found to imply certain others, such as freedom of political communication (Freedoms Inquiry, para. 1.8). Internationally, many of the relevant rights have been enshrined in human rights treaties, to which Australia is a signatory, affording limited protection under international law.

 The International Covenant on Civil and Political Rights (ICCPR) is perhaps the most well-known and influential human rights treaty. Under Article 4, the ICCPR provides for the derogation of certain rights, where governments can temporarily suspend the operation of certain rights in times of ‘public emergency’. However, Article 4(2) makes clear that no derogation is permitted from a number of articles, including inter alia the right to life (Article 6), freedom from torture or cruel, inhuman or degrading treatment (Article 7) and freedom from the operation of retroactive criminal law (Article 15).

According to the Australian government, this same suite of non-derogable rights can be further classified into ‘absolute’ or ‘non-absolute’ rights. Absolute rights are those which ‘no circumstance justifies a qualification or limitation upon them’, and are identified by the government as freedom from torture and other cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, freedom from imprisonment for inability to fulfil a contractual obligation, a prohibition against the retrospective operation of criminal laws and right to recognition before the law. Whilst under the ICCPR, the right to life enshrined in Article 6 is non-derogable, the Australian government classifies it as a non-derogable non-absolute right, where limitations can be applied. According to the government, the right to life is expressed as a freedom from ‘arbitrary’ deprivation of life, indicating that certain circumstances may ‘justify the taking of life, where necessary, reasonable and proportionate’. Furthermore, Article 18 of the ICCPR, which provides for the non-derogable right to freedom of religion, is subject to a limitation in Article 18(3) which allows only such limitations as are ‘necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.

Whilst international law can be an important common law influence, it does not create binding domestic law and, most importantly, does not ‘abrogate the power of the Commonwealth Parliament to make laws that limit rights’ (Freedoms Inquiry, para. 1.9). International law works in a number of other ways to protect rights, when those rights are not explicitly incorporated into our domestic law. For example, Australia has human rights reporting obligations, and the United Nations Human Rights Committee considers communications from individuals with complaints of human rights violations. There are a number of governmental processes that operate to scrutinise laws and their compatibility with our international human rights obligations. For example, the Parliamentary Joint Committee on Human Rights must examine all bills or legislative instruments that come before parliament for their compatibility with human rights. The ALRC itself is required by legislation to ‘aim to ensure its recommendations are consistent with Australia’s international obligations’ (Australian Law Reform Commission Act 1996 (Cth), s 24(1)). Nonetheless, international law itself cannot operate to ‘override clear and valid provisions of Australian national law’ (Minister for Immigration v. B).

The Freedoms Inquiry identifies an extensive number of Commonwealth laws that potentially limit common law freedoms. The Terms of Reference mandated the ALRC was then mandated to ‘critically examine’ the laws to determine whether the encroachments upon those rights and freedoms are appropriately justified. The ALRC identified proportionality as one of the major tools utilised in the determination of the justification of laws and drew upon it in its consideration of the justification for the laws (Freedoms Inquiry, para. 1.14).

Proportionality ‘involves considering whether a given law that limits rights has a legitimate objective and is suitable and necessary to meet that objective, and whether – on balance – the public interest pursued by the law outweighs the harm done to the individual right’ (Freedoms Inquiry, para 1.15). Proportionality has been adopted as a tool by Australian courts in determining the constitutionality of certain laws, often considered within the well-known test of whether a law is ‘reasonably appropriate and adapted to serve a legitimate end’ (Freedoms Inquiry para. 2. 66).

The ALRC highlighted laws which may be unjustified, and therefore warrant further review. It did not, however, come to specific conclusions about the justification for each law, ‘as further evidence and analysis would be necessary to support such specific conclusions’ (Freedoms Inquiry para. 1.18). Essentially, the scope of rights it considered, from freedom of speech to property rights, was too broad for the ALRC to put forth detailed recommendations for each substantive area.

Freedom of speech is one example of a right subject to limitations that potentially fall short of the common law proportionality test. Furthermore, the scope of the freedom itself in Australia is narrower than that enshrined in instruments such as the ICCPR. Whilst freedom of speech is considered one of the ‘fundamental values protected by the common law’ (Nationwide News v. Wills), in Australia it is essentially limited to political communications that are ‘necessary for the effective operation of that system of representative and responsible government provided for by the Constitution’ (Lange v. Australian Broadcasting Corporation). There are numerous precedents illustrating the freedom does not extend to non-political communication (Freedoms Inquiry, paras. 4. 25 – 4. 27). Australia is the only democratic country that does not protect freedom of speech in a national constitution or enforceable human rights legislation.

Under the ICCPR, however, a much broader protection for freedom of speech is provided for. It includes protection of ‘political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching and religious discourse’. Nonetheless, the ICCPR and the related Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights still provide guidelines as to when rights, including freedom of speech may be subject to limitations. Generally, they may be restricted in order to pursue legitimate objectives such as the protection of reputation and public safety.

The modern offence of advocating terrorism under s 80.2C of the Criminal Code Act 1995 (Cth) (Criminal Code) was identified by the ALRC as one which may encroach upon this common law freedom. The Criminal Code makes it an offence if a person advocates the doing of a terrorist act or the commission of a terrorism offence, and is reckless as to whether another person engages in that conduct as a consequence. A person ‘advocates’ the doing of a terrorist act if the person ‘counsels, promotes, encourages or urges’ it. The offence was considered by the Parliamentary Joint Committee on Human Rights (‘Committee’), which concluded that the provision was ‘likely to be incompatible with the right to freedom of opinion and expression’ as enshrined in Article 19 of the ICCPR.

The concerns of the Committee, which is mandated to consider compatibility with international law, is that a number of provisions in the Criminal Code already operate to restrict speech that incites violence, and expressed concern that the advocating terrorism offence was ‘overly broad’ in its application, particularly as the offence only requires a person to be reckless as to the consequences of their words or conduct (Freedoms Inquiry, para. 4.80). The Committee acknowledged the Attorney-General’s response that such an intention requirement is necessary because often there is a lack of sufficient evidence to meet the threshold required by other incitement of violence offences, which is an intention for violence to occur as a result of a person’s conduct. Nonetheless, the Committee concluded that it would be ‘appropriate to further clarify the meaning of “advocate” to assist people in “prospectively knowing the scope of their potential criminal liability”’ (Freedoms Inquiry, para. 4.84). These concerns were not incorporated into the Bill. A number of submissions to the Freedoms Inquiry, incorporated directly into the report, further emphasised concerns with the limitations of the law, particularly in relation to its limitations on ‘the capacity for individuals to voice their views and opinion on terrorism and overseas conflicts’ (Freedoms Inquiry, para. 4.86), as well as the use of a recklessness standard.

The ALRC concludes that s 80.2C should be subject to further review to establish whether it, among with several other laws which encroach upon freedom of speech, unjustifiably limits the freedom.

The Freedom Inquiry is comprehensive in scope, and merits careful study by anyone interested in the relationship between statutory laws, common law rights and broader public interests. This report is a result of widespread community engagement and consultation and careful legal analysis, and provides a comprehensive and thorough response to the Attorney-General’s mandate.

Alexis Hedger is Assistant Editor of the ILA Reporter.