There have been many criticisms recently of the Australian Human Rights Commission (AHRC) under the leadership of Professor Gillian Triggs. Such concerns have ranged from inappropriately delaying an inquiry into children in detention, misleading the Senate, failing to resolve the threats to free speech from section 18C of the Racial Discrimination Act, incorrect accusations of journalistic malpractice and unjustifiable recommendations of compensation.
Nonetheless, it should be recognised that the AHRC achieved much under her tenure. It continued its important role of resolving thousands of cases raising legitimate complaints of discrimination on the basis of sex, race, sexuality, age and other grounds.
The AHRC was also active in many other areas, including conducting an inquiry into employment discrimination against the elderly and persons with disabilities, promoting indigenous economic development, taking steps to counter the problem of child self-harm, reviewing the treatment of women in the military, combatting sexual harassment and abuse within universities, helping businesses recognise the importance of respecting human rights, and working to prevent violence against women.
In addition to these successes, there was a further achievement during Professor Triggs’ tenure that has not received sufficient attention. This contribution was in relation to the relevance to Australia of views expressed by international human-rights bodies. The issue arose in the context of same-sex marriage and concerned whether Australia violates the right to equality by not introducing same-sex marriage.
One of the most important human-rights treaties that Australia has ratified is the International Covenant on Civil and Political Rights (ICCPR), which affirms a range of rights including the right to equality and requires member states to comply with their commitment to respect the rights contained in the instrument. The Human Rights Committee, the international body established to monitor state compliance with the ICCPR, has addressed the issue of whether a state violates the right to equality under the ICCPR.
In 2002, the committee addressed the issue in Joslin v New Zealand, holding that the New Zealand government had not violated the right to equality or any other right under the ICCPR by its decision to maintain marriage as a heterosexual institution.
Despite an increase in the number of countries that have introduced same-sex marriage since the decision in Joslin, the Human Rights Committee has not altered its position on same-sex marriage. This is despite being presented with opportunities to do so even as recently as March this year in the case of C v Australia, in which the committee did not reconsider its position on same-sex marriage despite holding that Australia violated the ICCPR by not permitting a person to obtain a divorce from a same-sex marriage entered into in Canada.
The AHRC, however, has decided not to follow the position adopted by the committee on the right to equality and same-sex marriage. This is clearly indicated in the AHRC’s publications such as a report released in late 2012 entitled, “Marriage equality in a changing world”. The publication declares that due to an increasing number of states recognising same-sex marriage, the AHRC considers that “the principle of equality as set out in article 26 of the ICCPR supports the recognition of same-sex marriage and that in future the question of marriage equality should be read in light of the principles of equality and non-discrimination”.
Similarly, the AHRC’s Human Rights Commissioner, Edward Santow, in a speech delivered in late 2016, labelled decisions like Joslin as a “historical minority” that can be ignored and that the AHRC can instead adopt alternative views that hold that provisions like article 26 of the ICCPR “demand that marriage be extended beyond heterosexual couples”. The AHRC’s position on the meaning to be attributed to the right to equality is clearly not consistent with the views expressed by the Human Rights Committee.
Regardless of a person’s views on the meaning of equality and its relevance to the same-sex marriage debate, the AHRC should be commended for the position it has adopted in relation to Joslin as it is a declaration that international human-rights bodies do not conclusively determine the meaning of rights contained in international human rights instruments.
Instead of automatically deferring to the views of international human-rights bodies, the approach of the AHRC indicates that a determination of the appropriate meaning to be given to a human right must be considered in reference to considerations such as the views expressed by other human-rights bodies, national and international court decisions, the conduct of other states, and the views of communities.
Such an approach is clearly appropriate considering the membership of many international human-rights bodies. The Human Rights Council, for example, currently includes in its membership countries such as China, Egypt, Qatar, Saudi Arabia and Venezuela. Any claim that the views expressed by a human-rights body with such member states should be determinative as to the meaning to be given to human-rights instruments is absurd.
When international human-rights bodies express informed views on Australian laws and practices, they should be respected. However, the position that such views require human-rights instruments to be interpreted in a particular way or that a human-rights violation has occurred simply because such a view has been expressed by an international human-rights body should clearly be rejected. The AHRC should be congratulated for affirming such an important position in relation to international human-rights law.