The Universal Periodic Review and human rights progress: A case study from Australia

This article was first published by the International Service for Human Rights.

The UPR has received mixed reviews about its effectiveness as a mechanism to achieve positive human rights change. However, the case study of Australia demonstrates the capacity of the UPR to open space for dialogue and facilitate positive, albeit modest, human rights progress and monitoring, writes Anna Brown.

On a four-year cycle the UN Human Rights Council examines every country's human rights record in a process known as the Universal Periodic Review (UPR). Countries question States under review about their human rights record and make recommendations on how they can improve. As to its effectiveness as a mechanism for achieving positive human rights change, the UPR has received mixed reviews. However, the case study of Australia demonstrates the capacity of the UPR to facilitate positive, albeit modest, human rights progress.

The first-cycle review: Promise stymied by lack of political will

In Australia’s first cycle UPR in 2011 a record number of recommendations (90 percent) were accepted in whole or in part and NGOs welcomed Australia’s commitment to translate them into concrete action. A number of positive steps resulted from the review, including the establishment of a new Children’s Commissioner, the creation of the National Disability Insurance Scheme, and the development of new federal discrimination protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

However, a change of government revealed the fragility of Australia’s commitment to implementation. Under a newly elected Coalition Government progress on many recommendations stalled and new areas of regression emerged, such as an increasingly cruel and punitive treatment of asylum seekers. There were no longer any public reports on progress on implementation by the Government and the status of the former Government’s National Human Rights Action Plan, the vehicle intended to drive and monitor implementation of the UPR recommendations, was unclear. By the time Australia’s second cycle review took place in November 2015, the Australian Human Rights Commission assessed that only 10 percent of the 2011 recommendations had been fully implemented. 

This lack of progress coupled with regression in key areas and remarks from the former Prime Minister Tony Abbott and senior government ministers in early 2015 that evidenced increasing hostility towards the UN meant that civil society was not overly optimistic about the potential of Australia’s second-cycle UPR to achieve positive human rights change.

Preparing for the second-cycle review: Opening space for dialogue

Australia’s second-cycle review took place in late 2015 and, while still early days, at this point it is clear that this review provided an opportunity for NGOs to open up dialogue with the Government on human rights issues and resulted in modest positive outcomes.

After coming into power, the Coalition Government reduced funding to community organisations and restricted the ability of community legal centres to use federal funding to advocate on policy issues. Relationships between the sector and the Government were strained. The UPR therefore provided civil society with a common language or reference point to open up discussion with the Government and the broader community on progressive human rights issues.

The Australian NGO Coalition, representing nearly 200 NGOs across Australia, was able to use the UPR as the basis to secure a meeting with the Attorney-General to discuss human rights issues in Australia ahead of the review. Following this meeting, the Attorney-General’s Department and the Government more broadly continued to engage positively and constructively with civil society throughout the UPR, in both Canberra and in Geneva. Officials responded to NGO perspectives and concerns respectfully and in good faith; by way of example, the Government adopted civil society suggestions regarding potential voluntary commitments to be made in the course of the formal review.

The second-cycle review outcomes: Modest commitments, but important mechanisms

During its appearance in November 2015, Australia was questioned by 107 countries and 291 recommendations were made across a range of issues. An overwhelming focus of the review was Australia’s harsh treatment of asylum seekers, with over 60 recommendations criticising Australia’s policies in this area. Unfortunately this chorus of criticism was met with shallow justification by Australia. In its opening remarks the Australian Government acknowledged the challenges the country faced in a number of areas but stated that its ‘strong’ policies on asylum seekers and migration had built public confidence and saved lives as sea.

However, despite the continuing blight of Australia’s myopic approach to asylum seekers and refugees, in other areas the UPR has been able to act as a driver for positive reform. The UPR provided the impetus for the Government to make a number of modest positive commitments, including:

• work towards a National Action Plan on business and human rights;

• the withdrawal of its reservation to CEDAW; and

• a commitment to close a loophole in federal discrimination protections for LGBTI people that allowed states and territories to continue to discriminate on the basis of sexual orientation, gender identity and intersex status.

The UPR provided a much needed impetus to pick up the national conversation on ratification of the Optional Protocol of the Convention Against Torture. After inter-governmental discussions some years ago had led to some progress with states and territories but failed to achieve consensus on ratification, political momentum on this issue had reached a stand still. The UPR provided a political imperative to re-start these conversations and, at the time of writing, the federal government supports ratification with only a small number of states left to come on board. Without the external driver of the UPR, civil society calls for reform on this issue may have continued to fall on deaf ears for years to come.

The most recent UPR has also led to some significant institutional reforms to improve Australia’s engagement with UN human rights mechanisms. During its UPR appearance, Australia committed to creating a standing mechanism to monitor the implementation of UN recommendations, a much needed measure to facilitate greater accountability and advance positive national reform. In addition, Australia has taken steps to ensure the introduction of a monitoring mechanism specifically for the second-cycle UPR recommendations. Bipartisan support for the UPR process, demonstrated by the inclusion of opposition parliamentarians in Australia’s delegation last November, is a promising sign of continued political commitment to implement recommendations, regardless of the outcome of this year’s federal election.

Overall, while the gains may have been modest, and while setbacks remain, the second-cycle UPR provided an opportunity to open up dialogue between the Government and civil society on progressive human rights reform. In this way, the UPR has been and will continue to be a force for positive change and greater accountability in Australia.

Anna Brown is Director of Advocacy and Strategic Litigation at the Human Rights Law Centre.