In early October, members of Melbourne Activist Legal Support met with the United Nations special rapporteur Michel Forst, who has since released his report on the situation of human rights defenders in Australia.*
It is a powerful and important statement and has largely backed up what Australian activist, legal and human rights organisations have been saying for many years – that the Australian Government is dangerously impeding and repressing those of us in Australia trying to defend and stand up for basic civil, political, social, cultural and economic rights.
“I reminded the Government that human rights defenders have a legitimate right to promote and protect all human rights, including the right to a healthy environment, regardless of whether their peaceful activities are seen by some as frustrating development projects. I therefore recommend that the laws criminalizing peaceful protests are urgently reviewed and rescinded.” – Michel Forst
In the parlance of the global human rights community, a ‘human rights defender’ can be anyone, anywhere, who is taking action that seeks to defend, promote or strengthen a right recognised by the Universal Declaration of Human Rights or any of the subsequent UN conventions or covenants. It has been well documented that around the world, human rights defenders are often targeted, threatened, abducted, abused, tortured or killed due to their activism – most often by their own governments. Hence the need for a clear Declaration documenting the rights and protections available to them and stating the obligations of governments to observe them.
The Declaration on Human Rights Defenders
The Declaration on human rights defenders, from which Michel Forst, the current Special rapporteur gets his mandate to investigate and report on countries who have signed it, was adopted by the UN General Assembly in 1998. The position of Rapporteur is an independent expert, able to exercise professional and impartial judgement and report directly to the Human Rights Council and the General Assembly.
This particular Declaration on HRDs is particularly useful for activists in Australia to know about as it is designed, in part, to speak directly to us – activists who defend or promote human rights. It as a strong, very useful and pragmatic text. It tells us that we all have a role to fulfill as human rights defenders and emphasizes that there is a global human rights movement that involves us all. It outlines concretely each of the obligations that the state has to protect and ensure that we have access to protection, information and safety.
This Declaration is very important to the work of the Melbourne Activist Legal Support and is something that we refer to in our training. If you act as a Legal Observer or are a part of MALS, then you are acting as a Human Rights Defender and have all the rights articulated in the Declaration on HRD’s whilst you are doing that work.
Likewise – if you are an Indigenous activist standing up for the rights entailed in the The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) then you can also call yourself a human right defender if you so choose. As can people protesting for rights in The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) or any other UN article or convention that spells out our civil, political, economic or cultural rights.
In other words, every one of us has the right to defend all human rights for all. The Australian State is therefore under the obligation to take steps to create necessary conditions, including in the political and legal domains, in order to ensure that everyone in the country can enjoy all those rights and freedoms in practice. Well, wouldn’t that be good.
Concerns raised by MALS
During his two-week visit, at the invitation of the Government, the expert met with vast range of federal and state officials, members of the parliament and judiciary, statutory bodies, as well as human rights defenders and representatives of civil society, media and business.
In our meeting with Mr Forst, MALS members raised specific and general concerns about policing and anti-protest laws according to our observations of many protest events over several years. We referred to assaults on peaceful protestors, the growing use of OC (pepper) spray by police, corporate spy infiltration of movements and anti protest laws proliferating around the country. We referred to the spraying of street medics and injured people in Melbourne at the Counter Reclaim Australia protests (18/7/2015) and Jafri Katagar being sprayed at close range outside Flinders Street (23/9/2016). We also raised the rights of Legal Observers to be free from police harassment and interference whilst observing public protest events. See this Statement of Concern (July 2015). We spoke about how Legal Observers had been restricted from accessing certain areas were activists had been taken for questioning.
End Of Mission Statement
In his end-of-mission statement on Australia Michel Forst said he was “astonished” by numerous measures heaping “enormous pressure” on public servants, whistleblowers and ordinary citizens that restrict and curtail their rights.
The official statement stated that he found a growing body of laws, both at the federal and state levels, constraining the rights of human rights defenders.
“They have ranged from intensifying secrecy laws to proliferating anti-protest laws, from the stifling Border Force Act to the ‘Standing’ bill shrinking environmental access to courts,” Mr. Forst specified.
The statement says:
“it is alarming to observe the increasing trend by State governments to constrain the exercise of this fundamental freedom through what essentially is anti-protest legislation. Jointly with other fellow UN experts, I have conveyed repeated concerns to the Australian Government that such laws would contravene Australia’s international obligations under international human rights law, including the rights to freedom of expression as well as peaceful assembly. The proposed laws would criminalize a wide range of legitimate conduct by determining them as “disrupting” business operations, physically preventing a lawful activity or possessing an object for the purpose of preventing a lawful activity. Peaceful civil disobedience and any non-violent direct action could be characterized as disruption and “physically preventing a lawful activity”, and thus become criminalized.”
On the new national security laws, dealing with a data-retention scheme to retain metadata for two years, the statement said that these have:
“serious implications for journalists and whistleblowers. They have mandated the stockpiling of huge rafts of metadata of individuals, reportedly giving law enforcement agencies the means to identify journalists’ confidential sources.”
Forst makes a set of recommendations to the Australian Government including one to ensure prompt and impartial investigations into alleged threats and violence against human rights defenders and trade unionists and bring to justice direct perpetrators, and also to review and revoke laws that restrictive of the right to freely and peacefully assemble.
He also makes a set of recommendations directly to human rights defenders (as in ‘us’) to:
- Develop and strengthen federal and state networks aimed at empowering defenders and facilitating coordination;
- Become more familiar with the UN Declaration on Human Rights Defenders and publicise it broadly in society.
- Make full use of United Nations human rights mechanisms, when reporting on human rights violations.
These are all good ideas and things that we have been doing already. MALS will continue to support groups and communities exercising their civil and political rights by fielding legal observer training, providing free resources and up to date information regarding the right to protest at law in Victoria.
So what now?
So will things change now with this searing indictment on Australia? No. Not at all really.
The Turnbull government has said it “will consider the special rapporteur’s recommendations in the same way as it considers recommendations from all United Nations mechanisms” – which is another way of saying it will totally ignore them.
Like all international rights it takes years of struggle and a lot of hard work to see them realised and all rights need constant defending. But this Special Rapporteur’s statement is yet another tool we can use in our advocacy and to inform our ongoing work. It will be referred to by NGO representatives and delegates at the UN and raised in meetings, forums and by delegations to do with Australia. It provides a great deal of authority to our existing work and backs up our local campaigning against anti-protest laws and against repressive police powers. Campaigners in Tasmania and Western Australia will be able to use this statement in their ongoing work against their respective anti-protest legislation.
Forst’s visit is also a reminder that we are part of an international struggle and human rights are under threat everywhere, that our struggle is international and that we win rights, often step by little step. International attention, condemnation and outrage can, at certain times, be a deciding factor in a movements ability to win – particularly when domestic governments refuse to listen or engage. Groups in the global south suffering under authoritarian regimes often called this transnational human rights advocacy the ‘boomerang’ strategy. Australian activists could always improve how we mobilise and utilise international pressure on our own domestic issues.
Mr. Forst will present a final report with his findings and recommendations to the Human Rights Council in 2017.
(*) Read the Special Rapporteurs full end-of-mission statement here: