QED

Be careful what you wish for

If this were a poker game then our Prime Minister would be doing what’s known in poker as ‘going all in’ to try to win a non-permanent seat on the UN Security Council. He’s betting all his chips on winning this. That means he’s prepared to politicise the job of the Governor-General in order that she can tour around Africa and drum up (or more accurately put, to try to drum up) support for our bid.

Of course this could have terrible consequences down the road. Imagine a close election some time in the near future, one so close that the Governor-General had to exercise her reserve powers. No sane person could treat her as an impartial or disinterested party in what follows. She has ‘Labor Party’ stamped all over her forehead. And that is assuredly not what this office demands. Still, if it wins us the votes of Zaire and Mali.

But that’s not all. Our Prime Minister has also indicated that the federal government will now alter Australia’s established position and move over to supporting the United Nations Declaration on the Rights of Indigenous Peoples. We are being assured that this declaration is not legally binding. But that assurance is in no way comforting.

Why? Well a number of our present High Court judges think that they are entitled to interpret the Australian Constitution in the light of the international treaties and conventions that Australia has signed. It doesn’t matter to them that these treaties are entered into under the prerogative power (meaning they do not need to be passed by the legislature but can be, and are, entered into by the Executive by itself). It doesn’t matter to them that this sort of interpretive method is unbelievably undemocratic. It doesn’t matter to them that what they say the Constitution means, or now means in the light of some international agreement, cannot be overridden by the democratically elected representatives of the Australian people.

Now that’s not yet the majority position on the High Court. But it’s close. And we all know that the sort of people our Prime Minister will appoint to the High Court in the years to come will make this the majority position soon. So it’s nowhere near being a fully true statement to say this Declaration is not legally binding.

Of course the Prime Minister and the Government know all this as well as I do. They also know this Declaration might eventually be interpreted as having become part of customary international law; or that it might lead on to a Convention; or even that latter day Australian judges might simply change the rules of the interpretive game.

Why do you think that not only the United States, but also Canada and New Zealand voted against this Declaration? You could hardly call those latter two countries anything other than bastions of political correctness. If they’re worried about this Declaration, then there is very good reason indeed to be worried about it. We used to be. But now that we’ve moved ‘all in’, as it were, there just may be a couple more votes to be won for our Security Council seat bid, maybe Somalia, Pakistan and Venezuela.  And if that’s true then it’s worth it. Right?

At this point it might be worth asking whether it really is worth going after this Security Council seat, at least in the way our Prime Minister is so flagrantly doing. I don’t mean to point out here the obvious, that if we get this it will be a non-permanent seat. Only the big five of China, Russia, France, the US and the UK, get a veto. Nothing happens at the Security Council unless those five say ‘yes’, or at least abstain. So in terms of power politics this sort of non-permanent seat is a bit like vanity publishing. It’s meaningless except in so far as how you feel about yourself. It lets you strut a bit more and preen a bit more.

That may be a bit harsh, but not by much.

However, that’s not my main point. My main point is that the United Nations at present is a very flawed institution. True, it’s better than nothing.  And true, the Security Council works in a way. But the United Nations Human Rights Council is awful. It’s at least as bad as its predecessor, the Human Rights Commission, which had to be disbanded it was such a disgrace.

Remember the following the next time someone tells you the UN Human Rights Council thinks X, Y or Z. First off, there are 47 member countries on this Council. It is dominated by African and Muslim countries that themselves have human rights records that are massively worse than anything you, or even the most disgruntled university lecturer, could claim about Australia.

Just last month this UN Human Rights Council passed a resolution approving a Pakistani proposal urging all countries to pass laws protecting religion from criticism, and only mentioning by name one such religion. (I’m betting you can guess which one that is.) The resolution was passed on a 23 in favour, 11 opposed, 13 abstained basis.

For anyone who has the slightest concern about free speech concerns this resolution is an absolute disgrace. The aim is to make any and all criticisms of religion, or at least of one religion, legally impermissible. That’s what the UN Human Rights Council thinks, this vaunted body telling us about rights.

Now why should anyone, anywhere, care in the slightest what that debased body thinks about anything? And why should Australia be going ‘all in’ to be part of a closely associated body, the Security Council? (It might be different if we weren’t selling our soul to get in.)

Of course we’ll be told – and as I write this I’m sure all the self-styled human rights activists here in Australia who are presently pushing so hard for a charter or bill of rights will be preparing to tell us – that this UN Human Rights Council resolution is not legally binding.

You might recognise this ploy. It’s the same one they use when they say a statutory charter or bill of rights won’t diminish Parliament’s power. Even the briefest of glances at what has happened in the United Kingdom shows that is just a plain out falsehood.

As for resolutions of the awful Human Rights Council, the fact is that no one can say for sure how judges in the future will treat them, and even more so how they will treat Declarations supported by our government, when it comes to interpreting the Constitution.

There are plenty of legal internationalists out there who talk as though everything coming out of the United Nations and all overseas views on rights are self-evidently good and right and above reproach.

Indeed, plenty of such people seem to be advising our Prime Minister. 

James Allan is Garrick Professor of Law at the University of Queensland

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