Asylum-seekers on their way to Australia. via
In July 2014, in Australian waters close to Indonesia, the Australian Navy intercepted a boatload of 157 people from Sri Lanka. They had hoped to gain entry to Australia as refugees but were told that their only prospects were to have their status processed on the islands of Nauru or Manus, both on the Equator northeast of New Guinea, and, if accepted as genuine refugees, to be settled there—not in Australia. Otherwise, they could return to Sri Lanka, which most of them subsequently chose to do.
The plight of boat people had been the most contentious issue in Australian politics since the late 1990s. In 2001, the conservative government of John Howard had halted the initial wave of would-be refugees by defying Federal Court injunctions gained by Australian human rights lawyers and defying the weight of opinion among the broader legal, intellectual, and artistic communities. Howard introduced new legislation to establish offshore processing centers in neighboring Pacific Island countries, which meant people who attempted to arrive illegally by boat could not apply for refugee status on the Australian mainland where human rights lawyers and a sympathetic judiciary ensured they all usually succeeded at either their first application or on appeal. The popular reputation he gained from this subsequently won him the 2001 and 2004 elections.
In 2007, however, a new Labor Party government, proclaiming itself more compassionate and more internationalist, disbanded his reforms. The people-smuggling trade immediately revived, and, in the next two years, some 50,000 refugee claimants arrived by boat. En route, twelve hundred of them drowned. The poll ratings of Labor Prime Minister Kevin Rudd subsequently slumped so low his own party deposed him. In the September 2013 election, refugee policy again became the biggest single issue, and the conservative Tony Abbott was elected with a majority and a mandate replicating that of John Howard. He promised to stop the boats by ending the people-smuggling trade. Though his opponents said they couldn’t be stopped, in only three months Abbott’s government had done just that. The boat from Sri Lanka that turned up in July 2014 was the first that appeared that year, and there’s only been one other attempt since.
The whole long episode was an unequivocal expression of the will of the electorate on this issue. Australian culture still retains a strong streak of egalitarianism, and, if there is one category of people of whom egalitarians disapprove, it is queue jumpers. Opinion polls confirm this, especially among existing immigrants who gained entry by more conventional legal means. Popular sentiment is also patriotic and strongly endorses the principle that governments have a duty to preserve national borders.
The legal, intellectual, and artistic communities, however, who had excoriated Howard and his government in its early days, refused to concede any ground in the subsequent decade and a half. When news broke of the navy’s interception of the Sri Lankan boat last year, they bombarded the press and television with protests. A group of fifty-three legal academics from seventeen universities published a newspaper petition declaring the whole operation illegal. “As scholars of international law, human rights law, and refugee law,” they said, “we are profoundly concerned by reports that asylum seekers have been subjected to rapid and inadequate screening interviews at sea and returned to Sri Lanka.” They went on:
This raises a real risk of refoulement in breach of Australia’s obligations under international refugee and human rights law, including the 1951 Refugees Convention, 1948 Universal Declaration on Human Rights, and the 1966 International Covenant on Civil and Political Rights. Australia’s reported conduct . . . clearly violates international law, [and] is inconsistent with Australia’s position as a non-permanent member of the UN Security Council and its adherence to the United Nations Charter.
What they mean here by refoulement is an obligation that flows from Australia’s assent in 1991 to the United Nations International Covenant on Civil and Political Rights. Among this covenant’s requirements is that Australia is obliged not to deport a person to his home country if he might be subject to persecution there. But a person who genuinely feared persecution would have accepted refuge on Nauru or Manus Island, which none of the Sri Lankans did, thereby confirming that Australian actions, however unwelcome, were perfectly legal.
As well as demonstrating the greater commitment these academics have to international laws and agreements than to the democratic processes of their own country, their petition was also revealing about how their numbers have grown. The list is packed with the names of institutions that are now housed by our public universities, mostly new and all largely replicating one another: the Centre for International Refugee Law, the Centre for Human Rights Law, the Australian Human Rights Centre, the Research Program in International Refugee Law, the Institute for International Law and the Humanities, and so on.
These academic institutions turn out graduates by the thousands each year in Australia alone, and you might think they are grossly oversupplying the labor market. Yet, in his illuminating book Sovereignty or Submission, John Fonte argues that international law is one of the leading growth industries of our era. Its practitioners are among the foremost intellectual theorists of an ever-expanding international and transnational law that is not only promoting the growth of international human rights and other treaties, but is also responsible for overturning many long-held assumptions within national legal traditions.
Fonte cites the law professor Peter Spiro who argues that judges are building a “global community of courts,” in part because of networking on foreign and international tribunals. Spiro predicts the American Constitution is likely to be increasingly globalized by judgments that favorably cite international sources and precedents. Walter Russell Mead, a prominent scholar of international relations, describes the most likely short-term outcome of the global governance movement:
Think of the European Union blown up to global scale; in the Global Union nations would have their own governments and their own laws but an increasingly dense framework of commonly agreed-upon laws and norms, and an increasingly complex and effective web of global institutions would supplement and in many cases replace the authority of national governments.
Fonte argues we are not facing demands for the kind of utopian “one-world government” recommended in both the 1920s and the 1940s by anti-war intellectuals and literary figures such as H. G. Wells, Arnold Toynbee, and Bertrand Russell. Instead, what is emerging is more feasible in practice, but harder to detect, a supra-national legal regime. It is a de facto constitutional authority that sits above national constitutions and is enforced mostly by compliant national courts. The citizens of nation states find themselves governed by regulatory institutions unaccountable to them and which, in many cases, they do not even know existed.
In short, this movement is a reversal of our existing political arrangements. It is taking power from democratically elected parliaments and vesting it in courts, NGOs, and transnational bodies. Voters are increasingly finding their representatives beholden to international treaties, international legal conventions and precedents, transnational bureaucrats and lawyers. Government policy is being decided less by open debate in the national media and more in the comparatively closed world of legal judgments, learned journals, international conferences, and academic seminars.
The origins of this supra-national legal structure lie not in the United Nation’s Universal Declaration of Human Rights of 1948, which rightly defend the freedom of the individual. It derives from the minority group politics, or interest group politics, of the 1960s and 1970s, especially the feminist movement, which did more than any other to persuade governments that special bureaucratic institutions and non-government agencies needed to be established to investigate and discourage discrimination against women.
In Australia, the anti-discrimination and equal opportunity organizations that emerged at the time became quasi-, and in some cases explicit, commissions for human rights. The people who run these organizations have built their careers and their mindset not on universal human rights but on interest-group rights or, more accurately, interest-group interests. Today, Australia has no less than nine separate human rights commissions—yes, nine: one in each of the six states and two territories, plus the national body. They all share a very similar structure that commits them all firmly to interest-group politics. The national body has six commissioners devoted to specific interests: Disability Discrimination Commissioner; Race Discrimination Commissioner; Sex Discrimination Commissioner; National Children’s Commissioner; Age Discrimination Commissioner; and Aboriginal Social Justice Commissioner.
This is obviously anti-discrimination overkill. The notion that Australian discrimination in any of these areas is sufficient to warrant a dedicated commissioner plus an expensive entourage of bureaucrats and consultants is absurd. In the national capital, Canberra, the population is the best-educated, best-paid, healthiest, and most environmentally conscious in the country. Yet to investigate and regulate the total of just 370,000 people in its domain, the Australian Capital Territory Human Rights Commission employs three commissioners and a staff of twenty.
This would all be a joke and an obvious candidate for a television sitcom if its consequences were not so far-reaching. The most dramatic outcome was in 1992, when the High Court of Australia reversed more than 150 years of previous court deliberations, to find that native title, or Aboriginal ownership of the land, was part of the common law of Australia. In a joint judgment, two of the judges quite explicitly sought to make Australian law conform to what it saw as international standards. They said:
The opening up of international remedies to individuals pursuant to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.
Now, the High Court’s discovery of native title was not a matter of universal human rights at all. It was about the entitlements of a particular ethnic minority group, currently numbering about 670,000 people or 3 percent of the Australian population, and the most favored clientele of the Human Rights Commission. Nonetheless, universal rights became the language of the Labor Party government when it introduced a statute to confirm the court’s findings and to create tribunals to hand out land to Aboriginal claimants. As of June 30, 2015, the national Native Title Tribunal had allocated to about 200,000 Aboriginal people no less than 31.4 percent of the land of the Australian continent, an area bigger than Western Europe.
For the previous century, much of this land had been leased by white pastoralists to graze cattle. But their new Aboriginal owners showed little interest in continuing the business. Instead, they preferred to remain in the towns and live off unemployment benefits and disability pensions. In some cases, however, the land has valuable mineral deposits, and mining companies now pay huge sums to native title holders to gain access to them, even though by law the Crown still holds rights to all minerals and the only body a miner legally needs to apply to is the state government.
Those who originally justified native title publicly did so in terms of human rights, sacred sites, and the centrality of land to Aboriginal culture. The reality, however, was that native title quickly degenerated into an additional de facto licensing regime run by the native title owners. Faced with the prospect of years of expensive and unpredictable litigation, mining developers succumbed to demands to pay “go-away money.” Some Aborigines have been so successful in extracting go-away money that one of their leaders recently predicted that a business magazine’s annual Rich List would soon contain their names. In economics, this phenomenon is known as rent-seeking. Instead of creating new wealth, its perpetrators aim to manipulate the political and social environment to gain a privileged position through government legislation or regulation, thereby enabling them to transfer wealth from others to themselves. The effect on Australia’s principal export earner, the mining industry, has been dire. In the state of Western Australia alone, one survey found almost 2,500 mining projects were being held up by native-title claimants.
Buoyed by their success over the past two decades, the aboriginal leadership, that is, a small class of legally educated, urban-dwelling political activists, wants to go one big step further and not only get their land back but their country back too. They claim the law is now on their side.
They argue that because Aborigines never ceded sovereignty in the colonial era, that is, they signed no treaty and were never actually conquered, as the first land owners they remain the sovereign people. In restoring land rights, Australian courts have recognized that traditional Aboriginal society was governed by its own laws. The existence of a legal system, Aboriginal activists argue, logically entails the existence of Aboriginal sovereignty which, they claim, was never extinguished by the British Crown’s own declaration of sovereignty in 1770.
The problem for the activists is that the issue of sovereignty is not justiciable in any Australian court. Nor can an ethnic minority group like the Aborigines bring such a case before an international court, since only states can normally do that. If, however, international law recognizes Aboriginal people as a group distinct from the Commonwealth of Australia—that is, as a nation within the state, much like the American Indians—then there may be room for the latter kind of legal maneuver. They now believe that the Australian government’s acceptance of the United Nations’ Declaration on the Rights of Indigenous People gives them this opportunity.
When the declaration was adopted by the U.N. General Assembly in 2007, it recorded 143 votes in favor, eleven abstentions, and four votes against. The last were cast by Australia, New Zealand, Canada, and the United States. The representative of the conservative Howard government said the declaration posed a threat to the territorial integrity of the Australian state.
Australia supports and encourages the full engagement of indigenous peoples in the democratic decision-making process, but does not support a concept that could be construed as encouraging action that would impair, even in part, the territorial and political integrity of a State with a system of democratic representative Government.
In other words, the declaration could open the way for a secessionist movement aimed to establish the Aborigines as a politically separate people who were entitled to a state of their own, either within or outside the existing Commonwealth. The declaration itself makes it clear that this is, indeed, one logical conclusion.
Article 3: Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and they freely pursue their economic, social and cultural development.
The declaration was strongly influenced by input from Australian Aboriginal activists who for several years maintained a permanent office in Geneva where they lobbied members of the U.N. Human Rights Council and provided direct input to the declaration. In recent years they have made much headway. In April 2009 the Australian Labor government, taking its lead from the Australian Human Rights Commission, gave formal support to the declaration. In February 2013 the then–Prime Minister passed a bill mandating a constitutional referendum to be held by mid-2017 recognizing Aboriginal people in the constitution. In the existing constitution, no particular group is identified, just “the people.”
Now, constitutional referenda notoriously fail in Australia if they do not have the support of both major parties. In this case, in 2013, the conservative Opposition Leader Tony Abbott was persuaded to support the Labor government. When he won the election later that year, Abbott confirmed he would support this promise. Until Aborigines are acknowledged as the First Peoples, Abbott said, “we will be an incomplete nation and a torn people.” He adopted the terminology of the human rights industry, which see Aborigines as First Peoples with unique rights. But in the ensuing debate Abbott looked about for a wording that would also satisfy his conservative base. Now that he has been deposed and replaced by an avowed republican with no such concerns, it is hard to know what the new Prime Minister will propose. But it is more likely to be something closer to the Labor Party than to Abbott’s conservatives.
One of the main problems for the latter is that a heavily funded government campaign to try to “educate” the electorate about this constitutional change is being dishonest about what is at stake. It campaigns through the media and the major sporting codes on the grounds that constitutional recognition will help social inclusion and therefore deserves our compassion, but it never mentions that the ambitious goal of Aboriginal sovereignty is lurking in the background. So far, this approach has been successful, with polls showing a referendum to change the constitution would probably succeed. Most people today see constitutional recognition as a courteous symbolic gesture with no real consequences. But unless they know what is actually at stake, Australians will wake up one morning—just as they did in 1992 with land rights—to find the judiciary has discovered a whole range of previously unimagined Aboriginal rights inherent in our revised constitution.
In their discussion among themselves and with governments, Aboriginal activists openly state that their goal is recognition of their status as the true, sovereign peoples of the country. This has become an intractable political demand, not only among Aboriginal political activists and academics, but also through the wider Aboriginal community in both urban and remote regions. A 2011 survey by the National Congress of Australia’s First Peoples found no fewer than 88 percent of Congress members identified constitutional recognition and sovereignty as the most important issue facing their people, well ahead of both health and education. One of the reports advising the government about constitutional recognition quotes a submission from Central Australian Aboriginal organizations:
The Aboriginal people have never surrendered to the European invasion and assert that sovereignty over all of Australia lies with them. The settler state has been illegally set up on Aboriginal land. The settler state has never recognised the prior ownership of this land belonging to that of the Aboriginal nation. We demand that the colonial settlers who have seized the land recognise this sovereignty and on that basis negotiate their right to be there.
Among the white intelligentsia, this demand is firmly supported. Like the Aborigines, academics adopt the language of the prevailing leftist historiography and refer to Australia as a settler state—along with New Zealand, Canada, and the United States—which illegitimately dispossessed the indigenous peoples of their own countries. Among academic historians, there is a long-term project to re-create Australia and the other settler states as “moral nations.” This means writing history that makes people see the illegitimacy of their past and so be motivated to confess their sins and seek redemption by giving indigenous people all they ask. This, however, is a notion that does not go down well with the majority of the Australian people who in general have goodwill towards Aboriginal people but who resent special privileges being showered on any special interest group.
Moreover, even in its own terms, the outcomes from this moral project of our academic historians and High Court judges provide little to be proud of. Today, it stands as a monument to the failure of good intentions. This can be seen not only in the appalling living conditions that persist in the majority of Aboriginal communities in the northern half of the continent, but also in the failure of the promise that the return of traditional land would give Aborigines the means and motivation to generate economic independence. At most, the outcome has been that, on land where there has been mining interest, the sharp men of Aboriginal politics have been able to wrest some quick go-away money. But in the vast areas outside the productive mines, Aboriginal economic development is virtually non-existent.
The notion that good policy for a depressed minority group could be developed by abstract principles of human rights drawn up by activists in Geneva and New York rather than by careful attention to what was actually happening on the ground in the country concerned was always legal hubris. The principles international lawyers developed are as useless today in ameliorating the lives of Aboriginal people as they are in sorting out genuine refugees from economic migrants. Fortunately for Australians, however, the authors of our constitution were democrats who inscribed democratic principles in the document. Constitutional change can only be made in Australia by referendum with the support of a majority of voters in a majority of states. Between now and mid-2017 we will see who prevails in this contest between national democracy and international legal theory.