National Human Rights Consultation - Appendix 2

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Appendix 2 – Further specific measures that would better protect human rights in Australia

word icon Appendix 2: Further specific measures that would better protect human rights in Australia

 

Contents


  1. Throughout the main body of this submission, the Commission recommends five major reforms to Australia’s system for the protection and promotion of human rights, namely:
    • a Human Rights Act for Australia
    • streamlined and strengthened anti-discrimination legislation
    • constitutional reforms to remove racially discriminatory provisions and protect the fundamental principle of equality in Australia
    • better human rights education in Australia
    • a stronger role for the Australian Human Rights Commission
  2. In the Commission’s view, the implementation of any one of these reforms will help to better protect and promote human rights, and a combination of these reforms will achieve even greater results.
  3. However, neither one nor all of those reforms will solve all of Australia’s human rights problems. In some cases, there will need to be additional and specific measures to address long-standing human rights issues.
  4. The Commission has over two decades of experience working on the major human rights issues in Australia. Drawing on this experience, Part B of this submission includes a very brief list of some examples of the ways in which human rights are insufficiently promoted and protected in Australia.
  5. This Appendix discusses, in more detail, some of the examples mentioned in Part B of the main submission and other examples of systemic human rights problems in Australia.
  6. Where possible, this Appendix hypothesises about how these human rights problems might be, or might have been, more effectively addressed if the Commission’s suggested reforms were a reality. It also notes where additional measures would need to be introduced.
  7. The human rights issues covered in this Appendix include those relating to:
    • Aboriginal and Torres Strait Islander peoples
    • asylum seekers, refugees and migrants
    • people trafficking
    • counter-terrorism legislation
    • gender equality
    • protection against discrimination on the basis of sexual orientation, sex identity and gender identity
    • the National Strategy for implementation of the Convention on the Rights of Persons with Disabilities (Disability Convention)
    • the right to vote.
  8. The material in this Appendix is largely a compilation of the Commission’s recent comments to the UN Human Rights Committee and the UN Committee on Economic, Social and Cultural Rights.It is not a comprehensive discussion of all human rights problems in Australia. Rather, it provides a summary of some key areas of concern to the Commission and of how those concerns might be addressed.

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1 Aboriginal and Torres Strait Islander peoples

  1. The Aboriginal and Torres Strait Islander Social Justice Commissioner has specific functions to report annually on the impact of laws and policies on the human rights of Aboriginal and Torres Strait Islander peoples (Indigenous peoples). Since 1993, the annual Social Justice Report and Native Title Report (which began in 1994) have assessed the human rights impact on Indigenous peoples across a vast array of areas. These include, inter alia, education, health, housing, employment, land rights, heritage protection, climate change, criminal justice and violence.
  2. It is envisaged that a national Human Rights Act would provide improved protection in order to remedy the breaches of human rights that have been identified by the Social Justice Commissioner over time.

1.1 Equality between Indigenous and non-Indigenous people in Australia

  1. Indigenous peoples continue to experience significant inequalities in the realisation of their human rights. Inequality in the right to life is of particular concern. Between 1996 and 2001, there was an estimated difference of 17 years between Indigenous and non-Indigenous life expectancy in Australia.[1]
  2. Underlying this inequality in the right to life is a range of social and economic inequalities including lower incomes, higher rates of unemployment, poorer educational outcomes and lower rates of home ownership. For example, in 2001 the unemployment rate for Indigenous peoples was 20% – three times higher than the rate for non-Indigenous Australians.[2]
  3. Many of these existing inequalities can be attributed to the impact of previous laws and policies that have discriminated against Indigenous peoples and which have not provided them with equal life chances. This has resulted in systemic barriers to full participation in Australian society.
  4. The Commission notes that a national Human Rights Act would have a critical role to play in identifying the systemic impact of new laws and policies on Indigenous peoples. As outlined in the body of this submission, the Commission also believes that a Human Rights Act should be accompanied by amendments to Australia’s Constitution to guarantee racial equality and prohibit discrimination into the future.
  5. The Commission notes that at the Indigenous Health Equality Summit in 2008, the Australian Government made accountable and measureable commitments to achieving equality in health status and life expectancy between Indigenous and non-Indigenous Australians by 2030. The Council of Australian Governments has similarly committed to closing the life expectancy gap within a generation, halving the mortality gap for children under five within a decade and halving the gap in reading, writing and numeracy within a decade.
  6. Having committed itself to applying this human rights based framework to address Indigenous health, the Australian Government should take steps to equally apply a human rights based framework to all aspects of Indigenous affairs policy, programs and service delivery. This should include the Northern Territory Emergency Response.
  7. The Commission believes that a vital step in setting up a human rights framework is to introduce an Australian Human Rights Act that requires public authorities delivering public services and programs to act compatibly with human rights. This will significantly impact on policy-making in relation to Indigenous peoples and has the potential to achieve better outcomes from service delivery to Indigenous peoples.

1.2 United Nations Declaration on the Rights of Indigenous Peoples and self-determination

  1. The Commission welcomes the Australian Government’s statement of support for the United Nations Declaration on the Rights of Indigenous Peoples (Declaration on the Rights of Indigenous Peoples).[3] The statement notes that:

    The Declaration recognises the legitimate entitlement of Indigenous people to all human rights – based on principles of equality, partnership, good faith and mutual benefit...

    Australia’s existing obligations under international human rights treaties are mirrored in the Declaration's fundamental principles.

    The Declaration needs to be considered in its totality - each provision as part of the whole.

  2. The Declaration on the Rights of Indigenous Peoples provides a framework for the protection of the rights of Indigenous peoples to be applied consistently with Australia’s existing human rights obligations. It does not create new rights – it merely describes how existing rights are relevant and apply to Indigenous peoples in accordance with their cultures, identity and way of life.
  3. One of the most important human rights for Indigenous Australians is the right to self-determination. With the adoption of the Declaration on the Rights of Indigenous Peoples, there is now international recognition that the right to self-determination applies to Indigenous peoples.
  4. Consistent with this, it is notable that the UN Committee on Economic, Social and Cultural Rights has also recognised that Indigenous peoples’ rights to culture and identity are protected under article 1 (the right to self-determination) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).[4]
  5. In its statement of support for the Declaration on the Rights of Indigenous Peoples, the Australian Government also stated that:

    Through the Article on self-determination, the Declaration recognises the entitlement of Indigenous peoples to have control over their destiny and to be treated respectfully.

    Article 46 makes it clear that the Declaration cannot be used to impair Australia’s territorial integrity or political unity.

    We want Indigenous peoples to participate fully in Australia’s democracy.

    Australia's Indigenous peoples must be able to realise their full potential in Australian and international affairs.

    We support Indigenous peoples’ aspiration to develop a level of economic independence so they can manage their own affairs and maintain their strong culture and identity.

    Australia is a longstanding party to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights and supports their aims and principles.

  6. The Declaration provides a firm basis for advancing greater recognition and protection of Indigenous peoples’ rights to self-determination in Australia. The Commission looks forward to working with the government on mechanisms for implementing the Declaration within Australia. Strengthening the powers of the Commission so that it can take the Declaration into account in exercising its human rights functions, as well as providing greater resourcing and capacity to the Commission, would contribute to the future operation of the Declaration in Australia.
  7. The establishment of a new national Indigenous representative body is another government initiative that is critical to both the implementation of the Declaration and the advancement of self-determination of Indigenous peoples in Australia. By July 2009, the Steering Committee convened by Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, will present a preferred model for a new national Indigenous representative body to the Australian Government, with recommendations to establish an interim body from August 2009.

1.3 The Racial Discrimination Act and the Northern Territory Emergency Response

  1. The Commission is concerned that the application of the Racial Discrimination Act 1975 (Cth) (RDA) continues to be suspended in relation to the Northern Territory Emergency Response (NTER).[5]
  2. The legislation enacted for the NTER declares itself, and any acts done pursuant to it, to be a special measure for the purposes of the RDA and exempt from the operation of Part II of the Act. It also declares that, where relevant, it is exempt from Northern Territory and Queensland anti-discrimination legislation.[6]
  3. The Social Justice Report 2007 assessed the NTER’s compliance with Australia’s human rights obligations and found that:
    • the government did have an obligation to promote and protect the right of Indigenous peoples to be free from family violence and child abuse
    • the NTER legislation is inappropriately classified as a ‘special measure’ under the RDA because of the negative impacts of some of the measures on Indigenous people and the absence of adequate consultation or consent by Indigenous peoples to the measures
    • the NTER legislation contains a number of provisions that are racially discriminatory
    • some provisions raised concerns for the compliance with human rights obligations (for example, the lack of access to review of social security matters and the compulsory acquisition of land without just compensation).[7]
  4. In accordance with the International Covenant on Civil and Political Rights (ICCPR), the promotion and protection of one right, namely freedom from violence and abuse, cannot be undertaken in a discriminatory manner, nor can it be at the expense of other rights, including the right to procedural fairness and an effective remedy, equality before the law and the right to participation.[8]
  5. The Social Justice Report 2007 also found that, despite being entitled a ‘national emergency’, the NTER does not meet the requirements of a ‘public emergency’ as articulated in article 4 of the ICCPR. Further, the extent of the derogation allowed for in article 4 is limited. The NTER is not a situation that justifies introducing measures that place restrictions on the rights of Indigenous people, such as overriding the principles of non-discrimination or safeguards for procedural fairness.
  6. The UN Committee on the Elimination of Racial Discrimination, the UN Human Rights Committee and the UN Committee on Economic Social and Cultural Rights have all expressed concerns about the NTER.[9]
  7. A formal, independent review of the NTER legislation and its operation has been conducted by a Review Board. The Review Board’s report, released in October 2008, found that the NT Intervention had made some positive changes in the Northern Territory, for instance in terms of increased police presence in communities, measures to reduce alcohol-related violence, improving quality and availability of housing, the health and wellbeing of communities and education. The Review Board noted that local communities saw the significant government investment under the NT Intervention as ‘an historic opportunity wasted because of its failure to galvanise the partnership potential of the Aboriginal community’.[10] The inclusion of racially discriminatory measures in the NTER was also seen as a significant failure that contributed to a lack of faith and trust from Indigenous peoples in the Australian Government’s approach.
  8. In May 2009, the government announced its final response to the review of the NTER.[11] This included a budget commitment of $807.4 million funding over three years, with specific measures in the areas of: welfare reform and employment, law and order, education, families, child and family health, housing and land reform and coordination. Importantly the government confirmed its commitment to introduce legislation in 2009 to make the RDA and the Northern Territory anti-discrimination legislation applicable to the NTER legislation.
  9. The government also released its ‘Future Directions for the Northern Territory Emergency Response Discussion Paper’ on 21 May 2009,[12] which it intends to use as the basis for consultations with 73 prescribed communities on NTER measures. These consultations are necessary steps to make sure the NTER does not continue to discriminate against Aboriginal people on the basis of their race, and to improve any continuing measures, through the participation of Indigenous peoples.
  10. While the government’s response addresses several of the recommendations outlined in the Social Justice Report 2007 and the NTER Review Board’s report, aspects of some of these recommendations have not been adopted or are not fully addressed, for instance in areas such as income management, CDEP, funding arrangements, governance, and resetting the relationship between the government and Aboriginal people.
  11. A Human Rights Act that preserved parliamentary supremacy would not have prevented the introduction of the NTER. However, it would have required the Australian Government to publicly justify why it believed the only way to achieve the legitimate objectives of the NTER was to suspend the RDA. By making the government more accountable for deciding to breach human rights, a Human Rights Act could help build a culture of respect for human rights.
  12. The only way to guarantee that future Australian Governments will not suspend legal protection from racial discrimination to enact discriminatory legislation is to amend the Australian Constitution to guarantee racial equality and prohibit discrimination. Such a clause would prevent legislative protections against racial discrimination from being overridden or suspended by the federal Parliament.
  13. Any constitutional change can only occur with the support of the Australian people. As detailed in the body of the submission, the Commission supports a comprehensive national inquiry into protecting the right to equality in the Constitution.

1.4 Indigenous family support and protection of children and young people

  1. As highlighted by reports such as the Little Children are Sacred Report (NT) and the Breaking the Silence Report (NSW), child abuse, child sexual abuse and family violence are critical issues for Indigenous communities.[13] An Indigenous child is six times more likely to be involved with the statutory child protection system than a non-Indigenous child, but four times less likely to have access to child care or preschool service that can offer family support to reduce the risk of child abuse.[14]
  2. In recognition of Indigenous children’s rights to maintain a connection to their family, community and culture, all Australian jurisdictions recognise the Aboriginal Child Placement Principle (ACPP). The ACPP states that Indigenous children should be placed with Indigenous carers. Children should first be placed with the child’s extended family; if that is not available they should be placed within the child’s community; failing that they should be placed with other Indigenous people. However, the overriding priority is still the best interests of the child.
  3. The rate of Indigenous children placed in accordance with the ACPP varies across states and territories. It is as high as 84% in NSW but drops to 48% in the Northern Territory and only 36% in Tasmania.[15] Continued capacity building and Indigenous engagement is needed to ensure that the ACPP remains a guiding principle in Indigenous child protection.
  4. A new National Framework for Protecting Australia’s Children 2009-2020 was endorsed by the Australian Government and all state and territory governments in April 2009. The framework provides for an integrated response to child protection across all governments. The framework identifies several measures for ensuring Indigenous children are supported and safe in their families and communities.[16]
  5. As part of the development of this framework, the government has looked to introduce income management schemes, where welfare incomes are quarantined or deducted subject to the enrolment and participation of children in schools. These measures raise a number of human rights concerns, including the right to social security.
  6. The Commission has recommended against the introduction of such schemes as part of the national child protection framework. The Commission has called for the government to adopt a human rights-based approach to the framework that would uphold the best interests of the child, non-discrimination, and the child’s right to life and right to participation.
  7. The Commission’s report, Ending Family Violence and Abuse in Aboriginal and Torres Strait Islander Communities highlights the need for support for Indigenous community initiatives and networks, human rights education, government action, and robust accountability and monitoring.[17]
  8. Arguably, some forms of income management could be undertaken consistent with the right to social security. For example, it is likely that the model proposed by the Cape York Institute in its report From hand out to hand up contains the appropriate procedural guarantees and participatory requirements to enable those proposed measures to potentially be characterised as a special measure and as consistent with the right to social security.[18]
  9. The provisions on income management in the NTER legislation could be amended to ensure they are compatible with obligations arising from the right to social security.
  10. As noted above, in May 2009, the Australian Government announced consultations to review income management arrangements under the NTER to ensure that they are consistent with human rights. The outcomes of this process will need to ensure the right of individuals and groups to participate in decision-making processes that affect their exercise of the right to social security.
  11. In the National Framework for Protecting Australia’s Children 2009-2020 the government indicates that it will evaluate income management trials in WA, NT and Cape York over 2009-2010.[19]

1.5 Indigenous health inequality

  1. The Close the Gap Campaign and the closing the gap commitments of all Australian governments have the potential to be a turning point in Indigenous affairs in Australia.[20] The Australian Government has already made substantial investments, backed up by emerging health system reforms. The Australian Government has elevated the urgency of dealing with the Indigenous health crisis to a national priority.
  2. The groundwork has now been laid to make inroads into this longstanding issue. It is, however, a task that will take a generation. And there remains significant work to be done. This includes:
    • the creation of a new partnership between Indigenous Australians and their representatives and Australian governments to underpin the national effort to achieve Indigenous health equality
    • the development of an appropriately funded, long-term national plan of action to achieve Indigenous health equality, in part to coordinate the many different streams of activity underway that have the potential to contribute to that end
    • the establishment of adequate mechanisms to coordinate and monitor the multiple service delivery roles of governments that impact on Indigenous health, and to monitor progress towards the achievement of Indigenous health equality.
  3. The adoption of targeted approaches to Indigenous health equality was substantially progressed by the establishment of the Close the Gap Campaign for Indigenous Health Equality. This is an historic event, being the first time that such authoritative and influential peak bodies and key organisations from Australian civil society have worked together in partnership in such a sustained manner towards a single goal – Indigenous health equality.
  4. It should be noted that recent revisions of the Indigenous life expectancy gap from 17 years to around 10 years underscore the importance of improved data collection.[21] A firm data foundation is essential to plan and implement for Indigenous health equality by 2030.
  5. A key element of the Close the Gap Campaign has been the development of National Indigenous Health Equality Targets over a period of six months by three working groups. A notable Indigenous person with extensive health experience led each working group.
  6. The targets represent the ‘industry perspective’ on what needs to be done and the time frame for doing so in relation to achieving Indigenous health. This unprecedented body of work is intended to be the basis of negotiations with Australian governments as to the main elements and time frames of a national plan to achieve Indigenous health equality by 2030.
  7. The integration of the Close the Gap targets into policy settings remains an ongoing concern of the Campaign partners. The targets in the Statement of Intent, for example, are still not reflected in the government’s Overcoming Indigenous Disadvantage Framework.
  8. The Campaign partners have a further concern in relation to partnership and the achievement of Indigenous health equality. While the Campaign partners have been encouraged by the commitment to partnerships including by the Prime Minister in the apology to Australia’s Indigenous peoples[22] there are few signs that the Australian Government is otherwise embracing a partnership approach. In part, this could be because the Australian Government is waiting for the establishment of the national Indigenous representative body as a vehicle for partnership.
  9. Particularly in relation to a national primary health care strategy, Aboriginal representative bodies must be active participants in development and implementation. Aboriginal community controlled health services must be involved in health planning at the local and regional level with the National Aboriginal Community Controlled Health Organisation, and State/Territory NACCHO Affiliates at national and jurisdictional levels respectively. Where relevant, additional partners would include the Indigenous health professional bodies and a national Indigenous representative body when it is established.
  10. The recent progress made in Indigenous health policy is an excellent example of the way in which policy can be developed within a human rights framework. This kind of approach would be more likely if Australia had a Human Rights Act.

1.6 Indigenous housing and homelessness

  1. Indigenous people are likely to experience homelessness because of their high levels of social and economic disadvantage. According to the 2006 census, there were 4116 Indigenous people who were homeless on census night.[23] In every state and territory, Indigenous clients of Supported Accommodation Assistance Program services were substantially over-represented relative to the proportion of Indigenous people in those jurisdictions.[24]
  2. In 2006, the UN Special Rapporteur on Adequate Housing identified an Indigenous housing crisis in Australia. He argued that the following factors have led to a ‘severe housing crisis’ which is likely to worsen in coming years as a result of the rapid rate of population growth in Indigenous communities:
    • lack of affordable and culturally appropriate housing
    • lack of appropriate support services
    • significant levels of poverty
    • underlying discrimination.[25]
  3. Further factors that contribute to Indigenous homelessness include:
    • many Indigenous people enter poverty and homelessness as a result of poor educational and employment opportunities
    • Indigenous people are vulnerable to homelessness when they are forced to move in order to access employment and income support
    • the removal or temporary suspension of welfare benefits which can increase the chances of an Indigenous person becoming homeless
    • inadequate housing which can severely impact on the health of residents
    • a lack of culturally appropriate housing.[26]
  4. The UN Committee on Economic Social and Cultural Rights has noted its concern that the incidence of homelessness has increased in Australia over the last decade, mainly affecting Indigenous peoples, and has recommended the government implement the recommendations of the UN Special Rapporteur on the Right to Adequate Housing contained in the report of his mission to Australia.[27]
  5. In addition to wider housing reforms to address homelessness and housing affordability, including for Indigenous peoples in urban and regional areas,[28] the Council of Australian Governments’ National Partnership Agreement on Remote Indigenous Housing took effect on 1 January 2009. The Agreement provides for $1.94 billion over 10 years to improve the living standards of Indigenous peoples in remote areas by reducing overcrowding, homelessness, poor housing conditions and severe housing shortages. Under this Agreement the Australian Government will provide funding for remote Indigenous housing. The state and Northern Territory governments will be responsible for delivering the reform package, including the provision of housing and associated tenancy management reforms.[29]
  6. This is complemented by the Indigenous Remote Service Delivery National Partnership which will provide $291.2 million over six years to improve access to services by Indigenous peoples in 26 identified remote Indigenous locations.[30]
  7. However, the government has deemed provision of housing and other services under the National Partnership Agreement on Remote Indigenous Housing to be conditional upon Indigenous land owners providing 40 year leases over their lands to the government, despite communities’ reluctance to provide such leases; and transferring tenancy agreements from Indigenous community housing providers to public housing providers.
  8. Indigenous community housing providers such as Tangentyere Council have argued for a community housing system accredited against the National Community Housing Standards in preference to public housing management for the Alice town camps.[31] In the absence of an agreement being reached, the government has indicated it will use the NTER legislation to compulsorily acquire the lands against the communities’ wishes.
  9. Such conditions on access to the right to adequate housing undermine the rights to land and culture and the right of Indigenous peoples to participate in decisions about their land and development as recognised in the Declaration on the Rights of Indigenous Peoples.[32]
  10. There are also concerns that insufficient government funds and resources may be allocated for meeting the need for housing and services in remote Indigenous communities other than the 26 identified communities. This concern arises both under the federal policy and the Northern Territory Government’s Homelands / Outstations policy – Working Future – Fresh ideas / real results.
  11. Under its Homelands / Outstations policy the NT Government has indicated it will focus on the establishment of 20 towns across the Territory, with government services to outstations/homelands in most cases involving a form of remote delivery, based from the closest or most accessible hub town. The NT Government has indicated it will not provide funding to construct housing on outstations in the NT.
  12. The Laynhapuy Homelands Association has expressed concerns that ‘the decision not to fund new housing for our homelands condemns Yolngu to further overcrowding, declining living conditions and ultimately the extinguishment of our traditional culture’.[33] The concern is that people will be forced to move from their traditional lands into the 20 hub towns in order to access basic rights to housing, health and education.[34]

1.7 Indigenous language, culture and arts

  1. The National Indigenous Languages Survey Report shows that of the original estimated 250 Indigenous languages, only about 145 exist today and the majority of these are critically endangered.[35]
  2. A major finding of the report is that Australia’s Aboriginal and Torres Strait Islander languages are critically endangered and urgent action is required to preserve them for the future. The vast majority of the 145 Indigenous languages that are still spoken or partially spoken are severely endangered. Less than 20 languages are strong and not currently on the endangered list.[36] This situation was noted with concern by the UN Committee on Economic, Social and Cultural Rights.[37]
  3. Indigenous languages and cultures are closely intertwined. Safeguarding languages preserves Indigenous culture and identity.
  4. Currently, the promotion and protection of Indigenous languages and cultures is not sufficiently prioritised by the Australian Government. If languages are to survive, genuine commitment and policies are required for language maintenance and language revitalisation programs at all levels of Australia’s educational institutions. This means making schools culturally familiar and appropriate for Indigenous children and embedding Indigenous perspectives across the curriculum.
  5. Additionally, the Commission is concerned that the protection of Indigenous cultural and intellectual property by the mainstream legal system is inadequate. Instruments such as the Copyright Act 1986 (Cth) that provide legal protections for the life of the artist plus fifty years are not equipped to protect knowledge systems and artistic designs that are thousands of years old. Nor are they capable of recognising and protecting collective ownership of artistic content and products, which is common in Indigenous cultures.[38]
  6. A Human Rights Act could provide protection for the cultural rights recognised in article 27 of the ICCPR and article 15 of ICESCR. This would mean that that the government would need to consider the cultural rights of Indigenous peoples when developing new laws and policy. This would help redress the historical and continuing failure to recognise and protect Indigenous cultural rights.

1.8 Indigenous education

  1. While some small improvements have been made in the education outcomes of Indigenous students in Australian schools, the disparity of outcomes for remote students compared with their urban counterparts remains unacceptable. The provision of quality education services in remote Australia continues to be of concern.
  2. The vast majority of the Australian continent is defined as remote or very remote. In 2006 there were 1,187 discrete Indigenous communities in Australia with 1,008 of these communities in very remote areas. Of the very remote communities, 767 had population sizes of less than 50 persons. In 2006 there were 69,253 Indigenous people living in very remote Australia.[39]
  3. Remoteness has obvious implications for school education, including limiting access to early childhood services, primary and secondary schools as well as other resources such as libraries and information technology. In remote areas, road access may be limited during times of the year and prevent access during the wet season for months on end. If internet access is available in remote Australia, it is usually via satellite, offering a dial-up service with slow internet speeds.
  4. Indigenous children in remote areas have, on average, much lower rates of school attendance, achievement and retention than Indigenous children in urban areas and other Australian children.[40] In remote areas of the NT, only 3 to 4% of Indigenous students achieved the national reading benchmark in 1999.[41]
  5. In May 2009, the UN Committee on Economic, Social and Cultural Rights expressed concerns about the delivery of education to Indigenous peoples. It stated:

    The Committee notes with concern the persistence in the State party of disparities in access to the educational system for indigenous peoples, including those living in remote areas, compared with the rest of the population, as well as the deficient quality of education provided to persons living in remote areas, in particular indigenous peoples. It regrets that access to pre-school education is not equally guaranteed throughout the State party. (art. 2.2 and 13)[42]

  6. The Commission is of the view that a Human Rights Act would provide a benchmark against which the right to education could be regularly assessed and would ensure more consistent and improved accountability mechanisms for governments. It would provide a more systemic approach to protecting the economic, social and cultural rights of the most vulnerable sectors of the community.
  7. The Commission is also concerned about the threat to bilingual education for Aboriginal students. Of the 9,581 schools that exist in Australia today, nine schools are bilingual schools, instructing students in their first Indigenous language.
  8. In 2009 the NT Government implemented a policy-making it mandatory for schools to begin each school day with four hours of English literacy. The impact of this policy will be felt most markedly by the bilingual schools. In fact, the four hours of English is likely to destroy the bilingual education model. Dismantling bilingual education potentially endangers some of the remaining Indigenous languages.
  9. Bilingual education is an example of Indigenous controlled education. Students are instructed in their first language, learning educational concepts in their own language and learning their first literacies in their mother-tongue. English language and literacies are gradually introduced in the primary years.
  10. Bilingual education is considered to be one way to keep Indigenous language and culture alive. Bilingual programs are supported by local Indigenous community members with the aim of protecting and promoting Indigenous languages and culture through school education.
  11. Evidence from an Australian study demonstrates marginally better English literacy outcomes for students from bilingual schools at the end of primary school compared with students from non-bilingual schools with similar languages, demography and contact histories.[43]
  12. The Commission supports the protection and promotion of bilingual education. A human rights approach to policy development could require consideration of whether education promoted and protected the cultural rights of Indigenous children.

1.9 Indigenous people and the criminal justice system

  1. The Commission is concerned about the continued high levels of incarceration of Indigenous people, particularly women and children, and the over-representation of Indigenous people in prisons and juvenile justice facilities. For example:
    • Indigenous prisoners represented 24% of the total national prisoner population at 30 June 2008[44]
    • Indigenous adults are 13 times more likely to be imprisoned that non- Indigenous adults[45]
    • Indigenous young people are 23 times more likely to be in juvenile detention that non-Indigenous young people, and make up roughly half of the national juvenile detention population.[46]
  2. The UN Committee against Torture recently recommended that the Australian Government reduce overcrowding in prisons, implement alternatives to detention, abolish mandatory sentencing and prevent and investigate deaths in custody.[47]
  3. In light of the continued over-representation of Indigenous people, particularly women, in the criminal justice system, there is a pressing need for the continued implementation of the 339 recommendations contained in the Report of the Royal Commission into Aboriginal Deaths in Custody, including any outstanding recommendations.
  4. The Commission is also concerned about developments under federal law which undermine the role of Aboriginal customary law. These developments prevent a court from taking into account ‘any form of customary law or cultural practice’ as a mitigating factor in sentencing, or in the context of granting bail.[48]
  5. The Commission opposes this for a number of reasons, including the importance of recognising the right of minorities to enjoy their own culture, which applies to Indigenous peoples and imposes a positive obligation on governments to protect their cultures.[49]
  6. People who are convicted of criminal offences should be appropriately punished. This is best achieved by ensuring that courts can consider the full range of factors relevant to the commission of the offence, including a person’s culture. The right to enjoy culture cannot be enjoyed at the expense of the rights of others and must be consistent with other human rights in the ICCPR and the rights of women and children as protected by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[50] and the Convention on the Rights of the Child (CRC)[51].
  7. The Commission notes that although the NT Parliament made changes to the mandatory sentencing laws for property offences effective from 2001, the Sentencing Act 1995 (NT) still contains forms of mandatory sentencing in cases involving offences of violence.[52]

1.10 Stolen Generations

  1. The Commission is concerned at the number of outstanding recommendations of the Bringing them home report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, which documents the experiences of the Stolen Generations, who were forcibly removed from their families under the guise of welfare.[53]
  2. This report recommended that reparation be made in recognition of the history of gross violations of human rights, and that the van Boven principles guide the reparation measures, which should consist of:
    • acknowledgment and apology
    • guarantees against repetition
    • measures of restitution
    • measures of rehabilitation
    • monetary compensation.
  3. The Commission welcomed the Australian Government’s apology to the Stolen Generations in February 2008 for:

    laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians ... especially for the removal of Aboriginal and Torres Strait Islander children from their families, their communities and their country.[54]

  4. However, the other recommendations for reparation remain outstanding, including the provision of healing programs for the Stolen Generations and their families, and monetary compensation.
  5. The only compensation scheme established specifically for the Stolen Generations to date has been in Tasmania. Redress schemes have been established in Queensland and WA for children who have experienced abuse in state care, but they are not Stolen Generations specific.

1.11 Indigenous stolen wages

  1. The issue of ‘stolen wages’ has contributed to the entrenched and inter-generational disadvantage experienced by Indigenous people in Australia, and the consequent discrimination and inequality that contravenes the non-discrimination and equality provisions in articles 2 (1) and 26 of the ICCPR.
  2. The stolen wages compensation schemes are a critical means for Indigenous people to access their right to remedy for the human rights violations they experienced, as required under article 2 of the ICCPR, and as the UN Human Rights Committee recommended in 2000.[55]
  3. Stolen wages compensation schemes have been established in Queensland and NSW to compensate Indigenous people for the withholding, non-payment and underpayment of wages in the control of government. Investigations and consultations on the nature and extent of stolen wages issues in WA are also underway.
  4. The right to an effective remedy remains unfulfilled in areas where compensation schemes have not been established. The Commission notes the need for stolen wages compensation schemes to be established in other states and territories as appropriate.
  5. The Commission also has significant concerns about the adequacy and fairness of the regimes established, particularly by the Queensland Government, to address injustices inflicted on Indigenous peoples through the underpayment of wages.[56]
  6. In December 2006 the Senate Standing Committee on Legal and Constitutional Affairs published Unfinished business: Indigenous stolen wages, which recommended the following to strengthen the existing compensation schemes:
    • governments provide unhindered access to archives for the purposes of researching the stolen wages issue as a matter of urgency
    • funding be made available for education and awareness in Indigenous communities about, and preliminary legal research, into stolen wages issues.[57]
  7. These recommendations have not been adopted.

1.12 Native Title system reform

  1. The Native Title Act 1993 (Cth) (Native Title Act) is the primary mechanism through which Indigenous peoples access their cultural rights to land. The Act was intended to advance and protect Indigenous people by recognising their traditional rights and interests in the land.[58]
  2. However, in practice, there are a number of limitations of the native title system, including the following:
    • The courts have construed the Native Title Act as requiring that Indigenous people claiming native title prove traditional laws and customs at sovereignty and their continued observance generation by generation until today.[59] One of the cruel consequences is that the greater the impact of colonisation on Indigenous peoples (for example, if they were forcibly removed from their land), the less likely that they will be able to prove native title under Australian law.
    • Indigenous peoples bear the burden of proof and strict rules of evidence generally apply. The result is that Indigenous peoples whose culture is based on the oral transmission of knowledge must prove every aspect, including the content of the law, and custom and genealogy, back to the date of sovereignty (up to almost 200 years) in a legal system based on written evidence.
    • Only the traditional laws and customs that existed at the time of sovereignty and which are still observed and practiced today will be recognised. There is little room for revival of cultural traditions or adaptation of the traditions to today.[60] Similarly, the rights recognised are severely limited in terms of how Indigenous peoples can utilise any resources associated with that land for economic or social benefit.
  3. Recent reforms to the native title system do not reach far enough to overcome the limitations of the system or enable the full realisation of rights to land and culture.[61]
  4. Further, the native title system is in a state of gridlock.[62] Between 1 January 1994 (when the Native Title Act came into effect) and 31 December 2008, 117 determinations of native title were made, while over 500 claims are still waiting to be determined. Litigated determinations take an average of nearly seven years. On current estimates it will take another 30 years to finalise the remaining claims.[63]
  5. The system is in a state of gridlock for a number of reasons. It is in part due to the technical and aggressive attitude of government parties in an adversarial setting. Another relevant factor is the inadequate funding by government for Indigenous peoples pursuing their rights.[64] Although some amendments to the system were made in 2007, and some are currently being considered by government, these measures do not adequately improve the process.
  6. The Commission is concerned that while the system continues to progress so slowly, Indigenous peoples’ rights are being denied and Indigenous elders are dying.

1.13 Land rights under the Northern Territory Emergency Response

  1. The NTER legislation has allowed the Australian Government to acquire a wide range of interests in land, including:
    • compulsory acquisition of five-year leases over certain lands
    • control of leases for town camps in Darwin, Katherine, Tennant Creek and Alice Springs including the power to forfeit the lease and resume the land
    • power to acquire all rights, titles and interests in the land subject to a town camp lease
    • rights in construction areas, and buildings and infrastructure constructed on Aboriginal land.
  2. The NTER legislation significantly reduces the protection of Aboriginal peoples’ rights and interests in their traditional lands as provided by both the Aboriginal Land Rights (Northern Territory) Act 1976 (NT) and the Native Title Act. However, this legislation also impacts on the ability of those Aboriginal people affected to leverage economic, social and cultural development through the future acts regime.
  3. Any native title rights and interests, to the extent that they may occur over the area covered by a five year lease, are not expressly preserved by the legislation. While the legislation states that the non-extinguishment principle applies to the granting of a five year lease and other specified acts as determined by the NTER legislation, the legislation does ensure the suspension of the future acts regime.[65]
  4. Under a Human Rights Act, proposed legislation that impacts on the land rights of Indigenous peoples would need to be accompanied by a statement which explains what impact the legislation will have on human rights. This process of justification would mean that the implications for human rights would be firmly before the Parliament when making decisions about amendments such as those described above.

1.14 Indigenous participation in environmental management

  1. Indigenous peoples have had limited influence and participation in policies which affect their rights to land and waters, such as policies on environmental management, cultural heritage and climate change. For example, while the Australian Government has been developing a policy for climate change, and water use and access, there has been minimal consultation or discussion with Indigenous peoples.
  2. A Human Rights Act that recognised Indigenous cultural rights and the right to self-determination, as well as economic, social and cultural rights, would mean that those rights would be considered when law and policy is developed. The Commission believes that this increased focus on human rights would lead to improved consultation with Indigenous peoples about issues of environmental management and policy.

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2 Asylum seekers, refugees and migrants

2.1 Immigration detention

  1. Over the last decade, Australia’s treatment of asylum seekers and other people in immigration detention has repeatedly breached Australia’s international human rights obligations. This has damaged Australia’s international reputation and, more importantly, the lives of many individuals and families.
  2. The Commission has done extensive work on immigration detention over the past decade, including investigating complaints from individuals in detention;[66] conducting annual inspections of detention facilities;[67] making submissions to parliamentary inquiries;[68] and conducting two national inquiries.[69]
  3. Most recently, the Commission released its 2008 report about conditions in Australia’s immigration detention facilities.[70] The key recommendations of the report included the following:
    • Australia’s mandatory detention law should be repealed.
    • The Migration Act 1958 (Cth) (Migration Act) should be amended so that people are only detained when it is necessary. Detention must be for a minimal period, be reasonable and be a proportionate means of achieving at least one of the aims outlined in international law.[71]
    • The Migration Act should be amended so that the decision to detain a person is subject to prompt review by a court; periodic independent reviews of the ongoing need to detain an individual are undertaken; and a maximum time limit for immigration detention is specified.
    • Minimum standards for conditions and treatment of persons in immigration detention should be set out in law and should reflect international human rights standards.
    • People should not be held in immigration detention on Christmas Island. All unauthorised arrivals who make claims for asylum should have those claims assessed through the refugee status determination process on the Australian mainland.
    • The Australian Government should implement all of the recommendations of the National Inquiry into Children in Immigration Detention.[72]
  4. If Australia had a Human Rights Act, many of the breaches of human rights identified by the Commission may have been prevented. A Human Rights Act would mean that any future changes to Australia’s immigration laws would need to be assessed against the human rights protected by the Human Rights Act.
(a) Mandatory detention laws can result in arbitrary detention
  1. Australia’s system of mandatory detention has led to the prolonged and indefinite detention of many people. The Commission has repeatedly urged the Australian Government to repeal the provisions of the Migration Act that have led to indefinite and arbitrary detention in breach of the ICCPR.[73] Mandatory detention has also led to other human rights breaches including the breach of a child’s right to be detained only as a matter of last resort and for the shortest appropriate period of time.[74]
  2. While detention may be acceptable for a short period in order to conduct security, identity and health checks, currently the mandatory detention provisions of the Migration Act empower immigration officials to detain people for unlimited periods of time. There is no way for the Australian courts to review whether a person’s detention is arbitrary in breach of international law.
  3. The Commission’s 2008 report highlighted that, despite improvements in the physical conditions of immigration detention facilities over the past few years, the most critical issue remains: some people are still detained for prolonged and indefinite periods, without knowing when they will be released or whether they will be allowed to stay in Australia when that happens. It is well established that detaining people in these circumstances leads to negative impacts on their mental health.[75]
  4. The Commission is also concerned that children continue to be held in some immigration detention facilities, both on the mainland and on Christmas Island. For children and their families, the psychological effects of being detained can be devastating, and these facilities are inappropriate for anything but the briefest of periods.
  5. On 29 July 2008, the Minister for Immigration and Citizenship, Chris Evans, announced new directions for Australia’s immigration detention system.[76] The new directions provide for a shift in policy, away from the requirement that all unlawful non-citizens be detained, towards a presumption that detention will occur as a last resort and for the shortest practicable period.
  6. While the Commission has welcomed this development, it remains to be seen how the new directions will be implemented in practice, and in particular how the changes will be enforced or guaranteed.
(b) Detention should be subject to judicial review
  1. The Commission has raised repeated concerns that the Australian courts cannot review the legality of a person’s immigration detention on the grounds that it breaches the prohibition on arbitrary detention.[77]
  2. The Australian courts have no authority to order that a person be released from immigration detention on the grounds that the person’s continued detention is arbitrary, in breach of the ICCPR. This is because under Australian law it is not unlawful to detain a person (or to refuse to release a person) contrary to the ICCPR.
  3. The UN Human Rights Committee has said that the right to challenge the ‘lawfulness’ of one’s detention under article 9(4) of the ICCPR must include the opportunity to challenge detention which is arbitrary.[78]
  4. The Commission believes that any decision to detain a person should be subject to prompt review by a court; there should be periodic independent reviews of the ongoing need to detain an individual; and there should be a specified legal limit on the period of time for which immigration detention is permitted.
  5. These safeguards should be entrenched in legislation. If Australia had a Human Rights Act they would also need to be interpreted and applied consistently with the rights protected by a Human Rights Act.
(c) People should not be detained in excised offshore places like Christmas Island
  1. Australia’s excision legislation creates a dual processing system for asylum seekers that, in the Commission’s view, is unjustified. People who arrive in excised offshore places are unable to make a valid visa application under the Migration Act unless the Minister exercises his non-compellable discretion to permit them to do so.[79] Further, people who arrive at excised places are not able to have their cases reviewed in the Refugee Review Tribunal or the Australian courts.[80]
  2. Until recently, detainees on Christmas Island were not entitled to legal or migration assistance. In July 2008, the Minister indicated that asylum seekers on the island would be given access to publicly funded assistance, as well as access to independent review of negative refugee status assessment decisions.
  3. The Commission welcomed these developments. However, it has ongoing concerns given the lack of lawyers and migration agents on the island; the lack of transparency surrounding the non-statutory refugee status assessment process applied on the island; and the lack of clarity regarding the system for conducting independent merits reviews.
  4. The Commission remains concerned that the practice of processing asylum seekers offshore undermines Australia’s international obligations under the Convention Relating to the Status of Refugees[81] (Refugee Convention), the ICCPR and the CRC. The lack of legal safeguards increases the risk of a person genuinely in need of Australia’s protection being returned to a place of persecution, and can also lead to breaches of children’s rights.[82]
(d) There are no legal guarantees that detainees will be treated humanely in detention
  1. The Commission has long been concerned about the absence of adequate mechanisms to ensure that immigration detainees are treated in accordance with Australia’s international human rights obligations. In particular, the Commission remains concerned that, despite its repeated recommendations, Australian law does not set out minimum standards for conditions and treatment of immigration detainees.[83]
  2. Since 1998, immigration detention services have been provided by private sector providers under contract to the Australian Government. Detention service providers are required to meet service requirements, including conditions for immigration detainees, as part of their contractual obligations. However, the Commission considers that these have provided insufficient guidance on what service providers must do to ensure that conditions comply with human rights standards. Further, these service requirements do not provide people in immigration detention with a cause of action or other effective remedy for breaches of their human rights.
  3. Currently, if a person in immigration detention makes a complaint to the Commission alleging that the way they have been treated in detention breaches their human rights (for example, their right not to be subjected to cruel, inhuman or degrading treatment), the Commission can investigate the complaint. If the Commission finds that a breach of human rights has occurred, the Commission can table a report in federal Parliament. However, the Commission’s recommendations are not legally binding and may be ignored by the government.
  4. A Human Rights Act could impose a legal obligation on the Australian Government, and private companies that run detention services on behalf of the Australian Government, not to act inconsistently with the human rights of people in immigration detention. Under a Human Rights Act, a person could seek a legally enforceable remedy for a breach of their human rights while in immigration detention.

2.2 Non-refoulement obligations

  1. The Commission has repeatedly recommended that a system of complementary protection should be introduced to protect people who do not fall within the definition of refugee under the Refugee Convention, but who nonetheless must be protected from refoulement under the ICCPR, the CAT or the CRC.[84]
  2. Australia does not have an effective system of protection for these asylum seekers, who may risk death, torture or cruel, inhuman or degrading treatment or punishment if returned. Instead, their claims can only be considered after they have been rejected at each stage of the refugee determination process and then seek a personal intervention by the Minister. Although the Minister may consider Australia’s obligations under other human rights treaties, the Minister’s decisions in these cases are non-compellable and non-reviewable.
  3. In May 2009, the Australian Government committed to provide $4.8 million over four years to implement a system of complementary protection for people to whom Australia has non-refoulement obligations. This announcement is welcome and the Commission looks forward to seeing this system implemented as soon as possible.

2.3 Formal citizenship test

  1. In 2007, the Australian Government introduced a formal citizenship test as part of the requirements for applying for Australian citizenship. The test aims to verify that applicants have demonstrated English competence and understanding of Australian values.
  2. The Commission recognises the right of the Australian Government to introduce a formal citizenship test that is pursuant to a legitimate aim, proportionate to achieving this aim, and based on reasonable and objective criteria.
  3. However, the Commission is concerned that the particular test introduced may disadvantage certain categories of people, particularly refugees and humanitarian applicants, and deprive them the right to equal treatment under articles 2 and 26 of the ICCPR.
  4. The Commission believes that the formal citizenship test for migrants and refugees who wish to become Australian citizens should be assessed against human rights standards, in order to ensure that it does not have a discriminatory impact.
  5. The Commission believes that humanitarian applicants should not have to demonstrate English language competency or an understanding of Australian values in order to find permanent refuge and settlement in Australia. It would also be inappropriate to require family reunion applicants, such as applicants for aged parent or spouse visas, to pass language or values tests.[85]

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3 People trafficking

  1. While slavery, sexual servitude and the trafficking of people for exploitation are crimes under Australian law, these practices still occur in Australia. The Commission believes that the Australian Government Anti-Trafficking Strategy needs a greater focus on the human rights of people who are trafficked to Australia.[86]
  2. The government funded Victim Support Program is only available to victims of people trafficking who are assessed by the Australian Federal Police as eligible for a visa under the People Trafficking Visa Framework. The Commission is concerned that this framework fails to protect the rights of trafficked people who are not of interest or assistance to police. The Commission expressed these concerns to a Department of Immigration and Citizenship review of the visa framework in 2008.
  3. People who have been trafficked to Australia are non-citizens and, in many cases, are in Australia without a valid visa. Access to victim support, culturally appropriate assistance and legal advice is vital to help trafficked people recover from their experience and understand their legal rights.
  4. The Commission hopes that the outcome of the 2008 review of the visa framework will mean that people who have been trafficked to Australia will receive support and protection on the basis of need.This is consistent with the recent recommendation by the United Nations Human Rights Committee that Australia should ‘provide equal assistance and protection to all victims identified regardless of their participation or otherwise in criminal proceedings against perpetrators’.[87]
  5. Australia’s response to trafficking shows that insufficient attention to human rights in the law- and policy-making process can result in inadequate protection of human rights. For example, a recent report found that government departments had not considered the policy implications of cases where alleged victims of trafficking were not mentally fit to decide whether to assist police, ‘nor developed a way forward on managing mentally impaired victims, to ensure that their rights and interests are adequately protected’.[88]
  6. Similarly, insufficient efforts have been made to ensure that people who have been trafficked to Australia have access to effective remedies outside the criminal justice system. To date, the Commission is only aware of one award of compensation to a person who was trafficked to Australia.[89] The Commission urges the Australian Government to explore legal options to improve the ability of people who have been trafficked to seek compensation.[90]
  7. These weaknesses in Australia’s response to trafficking could have been avoided if there had been a greater focus on the human rights of trafficked people at the time anti-trafficking laws and polices were first introduced. This might have occurred if Australia had a Human Rights Act at the time.
  8. As Australia begins to respond to emerging issues such as labour trafficking outside the sex industry and trafficking for forced marriage, new laws and policies should be formulated within a human rights framework. A Human Rights Act could make sure that human rights are placed at the centre of efforts to address and prevent trafficking.
  9. Australia also needs to develop ‘best practice models for identifying and responding to possible victims of labour trafficking, including investigating the effectiveness of responses based on education about rights, rather than victims’.[91]

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4 Counter-terrorism legislation

  1. Since the terrorist attacks in the United States on 11 September 2001, the Australian Government has introduced over 40 new counter-terrorism laws. The Commission has repeatedly raised concerns that a number of the new laws may breach, or allow for the breach of, Australia’s human rights obligations.
  2. The Commission believes the best way to ensure that future efforts to protect Australia’s national security comply with Australia’s human rights obligations is to introduce a Human Rights Act.

4.1 Inadequate safeguards against human rights violations

  1. The Commission is concerned that a number of Australia’s counter-terrorism laws fail to minimise the risk of human rights violations occurring. Two examples are outlined here, relating to the right to liberty and security of the person,[92] and the right of a detainee to be brought before a judicial officer to seek a ruling on the lawfulness of their detention.[93]
  2. The Anti-Terrorism Act 2004 (Cth) introduced special powers for the Australian Federal Police (AFP) to arrest a person suspected of committing a terrorism offence, and detain that person for the purpose of investigating whether that person had committed any terrorism offence.[94] Pursuant to these special powers, the AFP can hold a person for questioning for four hours,[95]and a magistrate can authorise an extension of up to 20 hours.[96] This means a person can be held without charge for 24 hours for the purpose of questioning.
  3. However, ‘dead time’ can be excluded from the total questioning time.[97] ‘Dead time’ includes a range of periods of time, such as allowing the detainee to rest, or conveying a person to a place of detention. But ‘dead time’ also includes allowing the investigating officer to request further time for investigating a terrorism offence.[98] The investigating officer can specify how much ‘dead time’ is required for this purpose. The effect of these ‘dead time’ provisions is that a person could be held for much longer than 24 hours.
  4. For example, Dr Mohammed Haneef was held in pre-charge detention for 12 days pursuant to the operation of one of the ‘dead time’ provisions.[99] Dr Haneef’s case demonstrates that there are inadequate safeguards in the operation of the ‘dead time’ provisions to prevent a person being held for an extended period of time (far beyond 24 hours), without proper review of the lawfulness of that detention. If a Human Rights Act had been in place at the time the ‘dead time provisions’ were being drafted, the provisions may have been accompanied by stronger and more effective safeguards.
  5. Similarly, the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003 (Cth) gave ASIO special powers to question, or question and detain, a person suspected of having information related to an anti-terrorism investigation, even if that person is not suspected of a terrorist offence.[100] Under these powers, a person who is not suspected of a terrorism offence can be detained for up to seven days.[101] The grounds for detention can be kept secret.[102]
  6. The Commission considers that this power of ASIO to detain an individual who is not suspected of any crime creates a serious risk of violating a person’s right to liberty and security of the person, and a detained person’s right to be brought before a judicial officer to rule on the lawfulness of their detention.
  7. These laws are subject to a sunset clause which means their operation must be reviewed in 2016. The Commission believes that when Parliament decides whether to extend the sunset clause, the laws should be assessed within a human rights framework. This could be achieved by introducing a Human Rights Act which provides guidance on when human rights can be legitimately limited.

4.2 Inadequate assessment of the human rights compatibility of Australia’s counter-terrorism laws

  1. Counter-terrorism laws have often been enacted in haste and without adequate assessment of their impact on fundamental rights and freedoms.
  2. Introducing a Human Rights Act could ensure that in the future, proposed counter-terrorism measures are assessed in a human rights framework before they are adopted. It would mean that:
    • human rights are identified and protected
    • legitimate restrictions on human rights are justified
    • government agencies consider the human rights impact of counter-terrorism measures
    • courts act as a safeguard against executive overreach in individual counter-terrorism cases.

4.3 Australia’s counter-terrorism laws should be independently reviewed

  1. With over 40 counter-terrorism laws enacted since 2001, there is a need to ensure that the operation of these laws, both individually and collectively, is subject to independent review. Current mechanisms for the review of counter-terrorism laws are ad hoc, and pay insufficient attention to compliance with human rights standards.
  2. The Commission has consistently called for the establishment of an Independent Reviewer of counter-terrorism laws to examine how Australia’s counter-terrorism laws are working in practice, and whether any significant human rights concerns have arisen as a result of the operation of these laws.[103]
  3. Reports by bi-partisan parliamentary committees and independent reviews of Australia’s counter-terrorism laws have all said that Australia needs to establish an independent body to provide a comprehensive and holistic review of the operation of counter-terrorism laws.[104]
  4. On 23 December 2008, the Australian Government announced that it would amend certain counter-terrorism offences and establish a National Security Legislation Monitor to review the practical operation of counter-terrorism legislation on an annual basis. The National Security Legislation Monitor will be a new statutory office in the Prime Minister’s Portfolio and will report to Parliament.[105]
  5. While it would appear that the Australian Government has stopped short of establishing a mechanism of regular independent review of Australia’s counter-terrorism laws, the Commission welcomes the government’s decision to implement many of the recommendations made by the Inquiry by the Hon John Clarke QC into the case of Dr Mohamed Haneef, the Review of Sedition Laws in Australia, and the reports of the Parliamentary Joint Committee on Intelligence and Security.[106] The Commission understands a discussion paper and exposure draft of legislation to implement these changes will be released in 2009.
  6. The Commission believes it is vital that all new counter-terrorism laws comply with Australia’s human rights obligations. A Human Rights Act could make sure that, in future, all proposed counter-terrorism laws are accompanied by a human rights compatibility statement.

4.4 Counter discrimination and promote social inclusion

  1. Many Arab and Muslim Australians are concerned that counter-terrorism legislation is being implemented in a way that has a disproportionate impact on their communities.[107] Uncertainties around the definition of terrorism and terrorist organisations have fuelled confusion and fear.[108]
  2. In 2004, the Commission published its report Ismaع–Listen: National consultations on eliminating prejudice against Arab and Muslim Australians.[109]
  3. The report found that members of Muslim and Arab communities had experienced increasing levels of discrimination since the terrorist attacks on 11 September 2001.
  4. The Ismaع report identified three main trends within Muslim and Arab communities:
    • an increase in fear and insecurity
    • the alienation of some members of the community
    • a growing distrust of authority.
  5. In June 2006 the Security Legislation Review Committee expressed ‘serious concern’ about the way in which counter-terrorism legislation is perceived by some members of Muslim and Arab communities in Australia.[110]
  6. The 2006 report of the Parliamentary Joint Committee on Intelligence and Security found that ‘one of the most damaging consequences of the terrorist bombings in the US, the UK, Europe and Indonesia has been a rise in prejudicial feelings towards Arab and Muslim Australia’.[111] It also expressed concern about ‘reports of increased alienation attributed to new anti-terrorist measures, which are seen as targeting Muslims and contributing to a climate of suspicion.[112]
  7. Both the Security Legislation Review Committee and the Parliamentary Joint Committee on Intelligence and Security supported remedying these problems through measures which promote social inclusiveness and which counter discrimination.[113] The ongoing work of the Commission with Muslim and Arab communities is vital in this context.[114]

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5 Gender equality

  1. While the Commission acknowledges the progress made towards achieving equality between women and men, the Commission remains concerned about the ongoing and persistent gender inequality entrenched in Australian life.
  2. Introducing a Human Rights Act could help ensure that law and policy makers actively look for ways in which new laws and policies could promote gender equality.
  3. The Sex Discrimination Commissioner has identified a number of areas of gender inequality requiring action by the Australian Government.[115]In July 2008, the Sex Discrimination Commissioner released her Plan of Action towards Gender Equality, setting out five priority areas for her term of office.[116] The Commission has since made a number of submissions to Australian Government inquiries to progress these reforms at the national level.

5.1 Strengthening laws to prevent sex discrimination and promote gender equality

  1. The Commission is concerned about the limited ability of the Sex Discrimination Act 1984 (Cth) (SDA) to achieve substantive gender equality in a number of areas of public and private life.[117] The SDA does not fully implement Australia’s international human rights obligations, particularly under CEDAW.
  2. The Senate and Legal Constitutional Affairs Committee recently completed an inquiry into the effectiveness of the SDA in eliminating discrimination and promoting gender equality. The Commission made 54 recommendations for immediate reform of the SDA and also proposed a more extensive second stage of inquiry to consider 11 more extensive reform proposals.[118] The majority of the Commission’s recommendations were adopted by the Senate Committee Inquiry.[119] The Australian Government is yet to respond to the Senate Committee’s report.
  3. The Commission’s previous proposals for strengthening laws to prevent sex discrimination should inform the implementation of the Commission’s recommendation to strengthen and streamline Australian federal discrimination law.

5.2 Paid parental leave

  1. The Commission has congratulated the Australian Government on its recent historic announcement that it will fund a national legislated scheme of paid parental leave (the Scheme), with a commencement date of 1 January 2011. The Commission has been a long-standing advocate of the need to establish such a scheme.
  2. It is important to now ensure that the Scheme is appropriately implemented, including an effective awareness-raising and education campaign for both employees and employers. Further, there is a need for a continuous program of monitoring and evaluation so the effectiveness of the Scheme is maximised.
  3. The Commission believes the Scheme is an important first step towards securing a world class paid parental leave system in Australia. There are a number of improvements to the Scheme that remain outstanding, including achieving:
    • superannuation on the leave entitlement
    • full coverage for all workers, not only primary carers in receipt of $150 000 or less
      • income replacement, rather than payment at the rate of the Federal Minimum Wage
      • availability of at least two weeks supporting parent leave (commonly known as paternity leave)
      • availability of additional supporting parent leave (ideally four weeks, to be taken on a ‘use it or lose it’ basis)
      • a total of one year of paid parental leave for new parents.
  4. The Commission has welcomed the Australian Government’s commitment to undertake a review of the Scheme two years after implementation, during which the above measures can be considered.
  5. The Commission recommends that the Australian Government remove its reservation to article 11(2)(b) of CEDAW.
  6. The Commission also recommends that the Australian Government take steps towards ratification of the Maternity Protection Convention 2000 (No 183) and ensure compliance with other provisions of that Convention.[120]
  7. For further detail about the Commission’s recommendations regarding achieving a world class system of paid parental leave for Australia, see the Commission’s two submissions to the Productivity Commission’s Inquiry into Paid Maternity, Paternity and Parental Leave (2008).[121]

5.3 Balancing work and caring responsibilities

  1. The Commission believes that there needs to be greater structural support for men and women to balance paid work and caring responsibilities.[122] This is essential for eliminating discrimination against women in employment as required by article 11 of CEDAW.
  2. The Commission is concerned that the new National Employment Standards, established as part of the Australian Government’s new workplace relations framework, provide inadequate protection for workers with caring responsibilities. The new right to request flexible working arrangements under the National Employment Standards is limited to workers with children under school age or children with disability under the age of 18 and does not apply to workers unless they have completed 12 months of continuous service. These limitations will have a disproportionate impact on women and men with wide-ranging care dependent relationships that can develop at any point over the work-life cycle.[123]
  3. The Commission is also concerned that the family responsibilities provisions of the SDA provide extremely limited coverage for employees experiencing this form of discrimination. Currently, protection against discrimination on the grounds of family responsibilities is limited to situations of direct discrimination and dismissal from employment.[124] These problems should be addressed by strengthening federal discrimination laws.
  4. For the Commission’s recommendations about improving the SDA to protect workers from discrimination on the grounds of family and carer responsibilities, see the Commission’s submission to the Inquiry into the Effectiveness of the Sex Discrimination Act.[125]

5.4 Women’s economic security in retirement

  1. The Commission is concerned about the significant disparity between the retirement savings and income of men and women. Current figures show that women’s superannuation balances are less than half of those of men.[126] This stark figure is a clear marker of gender inequality in Australia.
  2. Linking superannuation exclusively to engagement in paid work disadvantages women and other groups with marginal labour force attachment and lower earnings. Superannuation is a type of social insurance under article 9 of the ICESCR. Due to superannuation being linked to paid work, women do not currently equally enjoy the right to social security in Australia.
  3. Women are more likely to have broken paid work patterns due to caring responsibilities and have lower life-time earnings due to pay inequity. This means that, not only do women generally have lower levels of superannuation coverage over their lifetime, but when they do engage in paid work, they accumulate lower amounts of superannuation. Forms of age discrimination can create further barriers to participation in the paid workforce.
  4. With women generally retiring earlier and living longer than men, many women face prospects of financial insecurity and poverty in retirement, often solely relying on the Age Pension. Of all household types in Australia, elderly single women are at the greatest risk of poverty.[127] Around 73% of those on the single rate of the Age Pension are women.[128]
  5. The Australian Government is currently reviewing the retirement income system as part of a broader review of the national tax system. The Commission has expressed concern that that current system does not enable women to equally enjoy their right to social security and subsequently, equally enjoy their right to an adequate standard of living.[129] If a Human Rights Act was introduced, the Australian Government would be required to formally assess the human rights implications of any legislative changes to the tax system.
  6. The Commission has recommended actions in the following areas to increase women’s economic security in retirement:
    • removing barriers to women’s labour market participation (see above)
    • increasing life-time earnings for women by reducing the gender pay gap (see below)
    • extending initiatives to increase superannuation contributions for low income earners and those on welfare payments, including investigation of a system to recognise the value of unpaid caring work
    • ensuring that the Age Pension protects individuals from poverty and fulfils Australia’s international human rights obligations for women and men to equally enjoy a right to an adequate standard of living, and to social security
    • regular monitoring and reporting of the gender impact of federal budgets and reforms (see below)
    • independent monitoring and reporting of Australia’s progress towards achieving substantive gender equality.
  7. The Commission welcomes the recent commitment by the Australian Government to increase the rate of the Age Pension. However, this measure alone will not be sufficient to address the gender gap between women and men in their retirement income and savings over the lifecycle.

5.5 Gender pay gap

  1. There is a gender pay gap in Australia, with female workers earning 16.7% less than male workers.
  2. The gender pay gap in Australia is measured using data on average weekly earnings collected by the Australian Bureau of Statistics. In August 2008, women working full-time were earning 83.3% in the male dollar – this equates to a 16.7% pay gap. When part-time and casual work is included, women were earning around two thirds of what men earn. Although the pay gap for full-time earnings has hovered between 15-19 percentage points in the last three decades, in recent years the gender pay gap has widened slightly.
  3. In a submission to the House of Representatives Inquiry into Pay Equity and associated issues related to increasing female participation in the workforce, the Commission recommended that the Australian Government:
    • Amend the SDA in accordance with the recommendations of the Senate Inquiry report into the effectiveness of the SDA,[130] particularly to: provide for full protection from discrimination in employment on the grounds of family and carer responsibilities; impose a positive duty on employers to reasonably accommodate the needs of workers in relation to pregnancy or family and carer responsibilities; and expand the powers of the Commission and the Sex Discrimination Commissioner to undertake inquiries, and to initiate complaints.
    • Amend the federal industrial relations laws (formally the Workplace Relations Act 1996 (Cth), which the federal Government is replacing with the Fair Work Act 2009 (Cth) (Fair Work Act)), in relation to equal remuneration provisions.
    • Improve national institutional arrangements, and data collection and monitoring mechanisms, including providing for the Commission to independently monitor and regularly report on progress in achieving gender equality at the national level.
    • Increase funding to the Commission to enable it to exercise its existing and proposed new powers and functions in this area.[131]
  4. The Commission welcomes the new equal remuneration provisions in the Fair Work Act which have substantially adopted one of the Commission’s proposals for legislative reform in this area.

5.6 Sexual harassment

  1. Despite nearly 25 years of legislative protection under the SDA, the Commission is concerned that sexual harassment remains a problem in Australian workplaces.
  2. Elimination of sexual harassment is critical to achieving gender equality in the workplace and implementing Australia’s obligations under CEDAW. The widespread incidence of sexual harassment in the workplace also impacts on the capacity of women to equally enjoy their right to safe and healthy working conditions, as set out in articles 3 and 7(b) of ICESCR.
  3. Addressing sexual harassment is one of the five priority areas for the term of the current Sex Discrimination Commissioner, set out in her Plan of Action Towards Gender Equality.
  4. In 2008, the Commission conducted its second national telephone survey about the nature and extent of sexual harassment in Australian workplaces. The national telephone survey was first conducted in 2003. The survey found that 22% of females and 5% of males had experienced sexual harassment in the workplace at some time, compared to 28% of females and 7% of males in 2003.
  5. Arising out of the findings of the 2008 national telephone survey, the Commission made a number of recommendations for action. The recommendations include that the Australia Government should provide sufficient funding to:
    • enable the Commission to work with relevant Australian Government agencies and small business representatives to develop and promote the use of specific sexual harassment training guidelines for small business
    • expand the capacity of the Commission to provide information to ensure people understand their rights and responsibilities under the law, and ensure the ongoing provision of an efficient and effective complaint service
    • enable the Equal Opportunity for Women in the Workplace Agency or the Commission to develop an audit kit to assist employers to monitor the incidence of sexual harassment
    • enable the Commission to repeat its national telephone survey every five years in order to independently monitor trends in the nature and extent of sexual harassment in Australian workplaces.[132]
  1. In the 2008 Senate Inquiry into the effectiveness of the SDA in eliminating discrimination and promoting gender equality, sexual harassment was a specific terms of reference for the Inquiry. The Commission made a number of recommendations to the Inquiry to improve the capacity of the SDA to redress sexual harassment.
  2. The Commission highlighted the need for expanded legal protection and comprehensive education efforts to eliminate sexual harassment. The Commission also recommended that the Australian Government increase funding to the Commission to perform its policy development, education, research, submissions, public awareness and inquiry functions to eliminate discrimination and promote gender equality.[133]
  3. A number of the Commission’s recommendations were adopted by the Inquiry. As noted above, the Australian Government is yet to respond to the Senate Committee’s report. These issues should be addressed as part of efforts to strengthen and streamline federal discrimination law.

5.7 Gender-based violence

  1. Gender-based violence is still a serious problem in Australia. Experiences of violence severely limit the capacity of women to equally enjoy their human rights.
  2. As many as one in three Australian women are affected by domestic and family violence.[134] Nearly one in five Australian women has experienced sexual violence since the age of 15.[135] Domestic violence has been identified as the leading contributor to preventable death, disability and illness in women aged 15 to 44 in the state of Victoria.[136] Further, domestic violence is the most common reason cited by individuals seeking assistance with Australian housing services.[137] A high proportion of women with a disability experience domestic violence.[138]
  3. Since November 2007, the Australian Government has introduced some key initiatives to address gender-based violence. In May 2008, the Australian Government formed a National Council to Reduce Violence Against Women and Children (the National Council). The National Council was directed to develop a 12 year National Plan to Reduce Violence Against Women and Children (the National Plan).
  4. In April 2009, the Australian Government released Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009–2021 along with the Australian Government’s response. The development, implementation and evaluation of the National Plan has been referred to the Council of Australian Governments (COAG). The Australian Government has also committed to implementing a selection of the urgent recommendations of the report.
  5. The Commission has welcomed these developments, while urging the Australian Government to ensure that:
    • The development, implementation and evaluation of the National Plan is supported with sustained commitment and proper resourcing.
    • The National Plan receives priority attention within COAG and is implemented by early 2010 in line with the Australian Government’s commitment.
    • The National Plan includes funding to adequately resource participatory decision making processes and to facilitate stakeholder and community input into implementation and evaluation.
    • The National Plan is regularly monitored by an independent body to measure progress. This includes developing strong data collection and evaluation mechanisms, as well as the setting of appropriate targets and benchmarks.

5.8 National gender equality machinery

  1. The Commission notes the importance of Australia having in place robust national gender machinery, including gender budgeting analysis, accountability systems, independent monitoring and benchmarking, and a strong, well-supported civil society, in order to prevent sex discrimination and promote gender equality.[139]
  2. The Commission encourages the Australian Government to review the effectiveness of existing national gender machineries in Australia, particularly in the lead up to the 54th session of the UN Commission on the Status of Women in March 2010, as part of the review and appraisal of the implementation of the Beijing Declaration and Platform of Action and the outcome of the 23rd Special Session of the General Assembly on ‘Women 2000: gender equality, development and peace for the twenty-first century’ in June 2000.
(a) Gender budgeting
  1. The Commission notes the particular importance of national gender machineries enabling appropriate gender budgeting to occur. The Commission has recommended that a Gender Analysis Unit should be established within Treasury to conduct gender disaggregated public expenditure analysis, gender disaggregated tax incidence analysis, and yearly gender budget statements.[140]
(b) Monitoring and reporting gender equality indicators
  1. In Australia, there is no institutional arrangement in place for an agency independent of government to regularly report to Parliament and the Australian public, providing a considered evidence-based assessment of progress against an integrated set of national gender equality indicators and to benchmark progress against those indicators over time.
  2. The Commission has existing functions, such as its education and research function, which would enable ongoing monitoring and reporting on gender equality benchmarks and indicators at a national level. However, the Sex Discrimination Commissioner and the Commission have assessed that the Commission is not in a position to assume this important national role under existing funding arrangements.
  3. The Senate Standing Committee on Legal and Constitutional Affairs recommended that ‘the Act be amended to require the Sex Discrimination Commissioner to monitor progress towards eliminating sex discrimination and achieving gender equality, and to report to Parliament every four years’.[141]
  4. The Committee further recommended that the Commission be provided with additional resources to enable it to perform this role.[142] This recommendation should be implemented as part of action taken to strengthen and streamline Australia’s federal discrimination laws.

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6 Gay, lesbian, bisexual, transgender and intersex people

6.1 Protection against discrimination on the basis of sexual orientation, sex identity and gender identity

  1. There remains insufficient protection against discrimination experienced by gay, lesbian, bisexual, transgender and intersex people in Australia. The best way to address these issues is through the implementation of the Commission’s recommendations to strengthen and streamline federal discrimination laws, and to begin a process of constitutional reform to protect the principle of equality for people in Australia.
  2. There is no federal law specifically prohibiting discrimination on the grounds of sexuality, sex identity or gender identity. While the Commission may investigate a complaint of discrimination in employment on the grounds of sexual orientation, and complaints of human rights breaches based on sex or gender identity, these protections are limited and any recommendations made by the Commission are not enforceable.
  3. Introducing a national Equality Act which provided a legal remedy for discrimination on the grounds of sexuality, and sex and gender identity, would send a strong message to the community that gay, lesbian, bisexual, transgender and intersex people are entitled to the same rights as any other person.
  4. In addition, same-sex couples in Australia do not enjoy equality of rights regarding relationship recognition, including civil marriage rights.

6.2 Official documents and records for people who are sex and gender diverse

  1. Having documents that contain accurate information about sex and gender is crucial for the full participation in society of people who are sex and gender diverse. It is also an important aspect of freedom of expression and, in relation to travel documents, can affect a person’s freedom of movement and travel.[143]
  2. Some transgender, transsexual and intersex people have official documents that state an inappropriate sex. Although Australia has some systems that enable the sex marker on official documents to be changed, not all transgender, transsexual and intersex people can access those systems. In particular, current systems for changing the sex marker on some official documents can only be accessed by people who have undergone sex affirmation surgery. Further, the current systems do not allow for people who are married to change some or all of their documents.
  3. The absence of nationally consistent procedures to assist people who are sex and gender diverse to change their official documents and government records means that the process may be time consuming, frustrating and inconsistent.[144]
  4. In March 2009, the Commission launched the concluding paper from its sex and gender diversity project, Sex Files: the legal recognition of sex in documents and government records (Sex Files).[145] In Sex Files, the Commission recommended that:
    • Access to the system for having sex legally recognised to accord with sex identity should be broadened.
    • The process for amending documents and records to legally recognise sex identity should be streamlined and user-friendly.
  5. In Sex Files, the Commission further recommended that the federal government should take a leadership role in ensuring that there is a nationally consistent approach to the legal recognition of sex, in accordance with the concluding paper’s recommendations.

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7 National strategy for implementation of the Convention on the Rights of Persons with Disabilities

  1. The Commission has welcomed the government's decision to pursue a National Disability Strategy based on the Convention on the Rights of Persons with Disabilities (Disability Convention).
  2. The Disability Convention makes even clearer than previous human rights instruments that legal measures alone are not a sufficient response to Australia’s treaty obligations on human rights, or sufficient to ensure that human rights are fully and equally enjoyed in practice by all people in Australia.
  3. The Disability Convention, while intended to reflect rights already recognised in the human rights treaties, provides substantially more detail than previously available on the meaning of those rights in relation to people with disability and guidance on measures which should be adopted or considered in turning rights into realities.
  4. The obligations of parties to the Disability Convention (under article 4) include the general obligation:

    to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention.

  5. Article 4(1)(c) of the Convention requires parties to ‘take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes’ (emphasis added), rather than only in those areas specifically targeted at disability issues.
  6. The Commission considers it clear that a comprehensive national strategy involving all areas and levels of government is necessary to implement this obligation.
  7. A National Disability Strategy should include:
    • development and implementation of more detailed disability strategies for all areas and levels of government, both on relevant aspects of each department and agency's specific responsibilities and elements common to all agencies
    • establishment of a co-ordination mechanism and monitoring framework
    • substantially enhanced resourcing for disability representative, advocacy and advisory bodies to ensure they are able to provide the input governments will require.[146]

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8 The right to vote

  1. The Commission has repeatedly raised concerns about the ability of Australians to exercise their right to vote and participate in the political process without discrimination.[147] These concerns have included:
    • the lack of availability of electronic voting for people with a vision impairment
    • difficulties faced by people who are homeless
    • restrictions on the voting rights of prisoners.
  2. Electronically assisted voting for people with vision impairment was trialled at the 2007 federal election. In March 2009 the Joint Committee on Electoral Matters released a report on the trial, recommending that electronic voting be discontinued, largely due to the high level of expense involved.[148]
  3. However, the Commission believes it is important that this method of voting be made permanently available and be provided in as many locations as possible. Eligibility to use this method of voting should be extended to all people who are unable to complete a secret ballot using a pencil and paper, including people with physical disability and people who cannot effectively use written instructions in completing a ballot paper, whether by reason of intellectual or learning disability, or other language or literacy difficulties.
  4. People experiencing homelessness in Australia often face significant difficulties in exercising their right to vote. For example, some people may have difficulty meeting proof of identity requirements because they do not have and cannot afford to obtain the necessary identity documents. Further, the threat of monetary penalties for failure to vote or failure to register changes of address may also discourage homeless people from enrolling to vote.
  5. Under Australian law, persons serving sentences of imprisonment of three years of more are not eligible to vote.[149] The Commission is concerned that this restriction on the right of prisoners to vote may not be proportionate, as required by article 25 of the ICCPR.[150] Further, this restriction may have a disproportionate impact on groups who are overrepresented in the prison population, such as Indigenous peoples, people with mental illness and people with an intellectual disability.

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[1] These issues are discussed in detail in: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2003 (2004), at http://www.humanrights.gov.au/social_justice/sj_report/sjreport03/index.html (viewed 4 June 2009). See also Australian Institute of Health and Welfare and Australian Bureau of Statistics, The Health and Welfare of Australia's Aboriginal and Torres Strait Islander Peoples 2005 (2005), at www.aihw.gov.au/publications/ihw/hwaatsip05/hwaatsip05.pdf (viewed 4 June 2009); Australian Institute of Health and Welfare, Australia's Health No.11 (2008), at http://www.aihw.gov.au/publications/aus/ah08/ah08-c03.pdf (viewed 4 June 2009). In May 2009, the Australian Bureau of Statistics issued new data indicating that the life expectancy gap between Indigenous and non-Indigenous people is approximately 10 years and not 17 years as previously estimated. See further Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘More accurate reporting needed to address life expectancy gap’ (Press Release, 26 May 2009). At http://www.humanrights.gov.au/about/media/media_releases/2009/41_09.html (viewed 4 June 2009).
[2] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2003, note 1.
[3] The Hon J Macklin MP, Statement on the United Nations Declaration on the Rights of Indigenous Peoples (Speech delivered at Parliament House, Canberra, 3 April 2009), at http://www.un.org/esa/socdev/unpfii/documents/Australia_official_statement_endorsement_UNDRIP.pdf (viewed 4 June 2009); The Hon R McClelland MP, Remarks in Support of the United Nations Declaration on the Rights of Indigenous Peoples (Speech delivered at Parliament House, Canberra, 3 April 2009), at http://www.attorneygeneral.gov.au/www/ministers/robertmc.nsf/Page/Speeches_2009_3April2009-RemarksinSupportoftheUnitednationsDeclarationontheRightsofIndigenousPeoples (viewed 1 June 2009).
[4] UN Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Australia (Advance Unedited Version), UN Doc E/C.12/AUS/CO/4 (2009), para 33. At http://www2.ohchr.org/english/bodies/cescr/docs/AdvanceVersions/E-C12-AUS-CO-4.doc (viewed 9 June 2009).
[5] Minister for Families, Community Services and Indigenous Affairs, ‘National emergency response to protect children in the NT’ (Media Release, 21 June 2007). At http://www.fahcsia.gov.au/internet/minister3.nsf/content/emergency_21june07.htm (viewed 4 June 2009). The catalyst for the measures was the release of Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle: ‘Little Children are Sacred’ (2007). At http://www.inquirysaac.nt.gov.au/ (viewed 4 June 2009).
[6]Northern Territory National Emergency Response Act 2007 (Cth); Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth); Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (Cth).
[7] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007 (2008). At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html (viewed 4 June 2009).
[8] Aboriginal and Torres Strait Islander Social Justice Commissioner, above, pp 238 - 239.
[9] In response to an Early Warning and Urgent Action Procedure, the UN Committee on the Elimination of Racial Discrimination has asked Australia to submit further details and information on the NTER no later than 31 July 2009. See F Victoire Dah, Chairperson of the Committee for the Elimination of Racial Discrimination, Correspondence to C Millar, Ambassador, Permanent Representative, Permanent Mission of Australia to the United Nations at Geneva, 13 March 2009. At http://www2.ohchr.org/english/bodies/cerd/docs/early_warning/Australia130309.pdf (viewed 9 June 2009). See also UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee – Australia (Advanced Unedited Version), UN Doc CCPR/C/AUS/CO/5 (2 April 2009), at http://www2.ohchr.org/english/bodies/hrc/docs/co/CCPR-C-AUS-CO5-CRP1.doc (viewed 9 June 2009); UN Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 4.
[10] Northern Territory Emergency Response Review Board, Northern Territory Emergency Response: Report of the NTER Review Board (2008), p 10. At http://www.nterreview.gov.au (viewed 4 June 2009).
[11]Australian Government and Northern Territory Government Response to the Report of the NTER Review Board (21 May 2009). At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/response_to_reportNTER/Documents/Aust_response_1882953_1.pdf (viewed 4 June 2009).
[12] Australian Government, Future Directions for the Northern Territory Emergency Response Discussion Paper (21 May 2009). At http://www.fahcsia.gov.au/sa/indigenous/progserv/ntresponse/future_directions/Documents/discussion_paper_6.pdf (viewed 4 June 2009).
[13] Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, note 5; Aboriginal Child Sexual Assault Taskforce, Breaking the Silence: Creating the Future. Addressing child sexual assault in Aboriginal communities in NSW (2006), at http://www.lawlink.nsw.gov.au/acsat (viewed 4 June 2009).
[14] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, note 7, p 116.
[15] Australian Institute of Health and Welfare, Child Protection Australia 2007-2008, Child Welfare Series No 45 (2009), p 65. At http://www.aihw.gov.au/publications/cws/cpa07-08/cpa07-08.pdf (viewed 4 June 2009).
[16] Council of Australian Governments, Protecting children is everyone’s business: National Framework for Protecting Australia’s Children 2009-2020 (2009). At http://www.coag.gov.au/coag_meeting_outcomes/2009-04-30/docs/child_protection_framework.pdf (viewed 4 June 2009).
[17] Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending family violence and abuse in Aboriginal and Torres Strait Islander communities: Key issues (2006), pp 5 - 6. At http://www.humanrights.gov.au/social_justice/familyviolence/index.html (viewed 4 June 2009). See also Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, note 7, pp 194 - 195.
[18] Cape York Institute for Policy and Leadership, From hand out to hand up (2007). At http://www.cyi.org.au/WEBSITE%20uploads/Welfare%20Reform%20Attachments/From%20Hand%20Out%20to%20Hand%20Up_Welfare%20Reform%20Report.pdf (viewed 4 June 2009).
[19] Council of Australian Governments, Protecting children is everyone’s business, note 16, p 19.
[20] Close the Gap, at http://www.closethegap.com.au, (viewed 4 June 2009).
[21] See Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘More accurate reporting needed to address life expectancy gap’, note 1.
[22] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 167 (Hon Kevin Rudd MP, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 4 June 2009).
[23] Australian Bureau of Statistics, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples, note 1, p 46.
[24] Australian Bureau of Statistics, above, p 47.
[25] UN Human Rights Council, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum - Mission to Australia (31 July to 15 August 2006), UN Doc A/HRC/4/18/Add.2, (2007), para 80. At http://daccessdds.un.org/doc/UNDOC/GEN/G07/125/72/PDF/G0712572.pdf?OpenElement (viewed 4 June 2009).
[26] The UN Committee on Economic, Social and Cultural Rights has noted that cultural adequacy is an essential aspect of housing adequacy: ‘the way housing is constructed, the building materials used and the policies supporting these must appropriately enable the expression of cultural identity and diversity of housing’. UN Committee on Economic, Social and Cultural Rights, General Comment 4: The right to adequate housing, UN Doc E/1992/23, annex III (1991) 114, para 8(g). At http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+4.En?OpenDocument (viewed 4 June 2009).
[27] UN Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 4, para 26.
[28] See the National Affordable Housing Agreement and its associated National Partnerships (NPs) and the Council of Australian Governments Commitments from February 2009: Council of Australian Governments, Special Council Of Australian Governments Meeting: Nation Building And Jobs Plan – Communiqué (2009). At http://www.coag.gov.au/coag_meeting_outcomes/2009-02-05/docs/20090205_communique.pdf (viewed 4 June 2009).
[29] Council of Australian Governments, National Partnership on Remote Indigenous Housing Agreement, Fact Sheet. At http://www.coag.gov.au/coag_meeting_outcomes/2008-11-29/docs/20081129_remote_indigenous_housing_factsheet.pdf (viewed 4 June 2009).
[30] Both of these partnerships fall within the Australian Government’s overarching National Indigenous Reform Agreement (NIRA). This provides a summary of action being taken by all governments against the ‘Closing the Gap’ targets, as well as the operation of the mainstream national agreements in health, schools, vocational education and training, disability services and housing and several National Partnerships.
[31] Tangentyere Council, ‘Tangentyere Supports Open and Transparent Tenancy Reform’ (Media Release, 25 May 2009). At http://www.tangentyere.org.au/publications/documents/TENANCYREFORM25MAY2009.pdf (viewed 4 June 2009).
[32]United Nations Declaration on the Rights of Indigenous Peoples (Declaration on the Rights of Indigenous Peoples), GA Resolution 61/295, UN Doc A/61/L.67 (2007), arts 5, 8, 10, 19, 23, 27, 28. At http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (viewed 29 May 2009).
[33] Laynhapuy Homelands Association, ‘No future for Yolngu living on homelands’ (Press Release, 21 May 2008). At http://stoptheintervention.org/facts/your-voice/laynhapuy-homelands-association (viewed 4 June 2009).
[34] Northern Territory Government, Working Future - Fresh ideas/real results: Outstations/homelands policy - Headline Policy Statement (2009). At http://www.workingfuture.nt.gov.au/download/Headline_Policy_Statement.pdf (viewed 4 June 2009).
[35] Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) in association with the Federation of Aboriginal and Torres Strait Islander Languages (FATSIL), National Indigenous Languages Survey Report 2005 (2005), p 3. At http://www.arts.gov.au/__data/assets/pdf_file/0006/35637/NILS_Report_2005.pdf (viewed 4 June 2009).
[36] AIATSIS and FATSIL, above.
[37] UN Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 4, para 33.
[38] See Hon John von Doussa QC, Legal Protection of Cultural Artistic Works and Folklore in Australia (Presentation to the International Association for the Protection of Intellectual Property and The Malaysia Bar Council’s Intellectual Property Committee - Joint Conference, Kuala Lumpur, 1 September 2006). At http://www.humanrights.gov.au/about/media/speeches/speeches_president/2006/20060901_Malaysia.html (viewed 4 June 2009).
[39] AM Fordham & RG Schwab, Summarising: Fordham (2007), Preliminary analyses of access to education and discrete Indigenous communities in Australia, 2006, Centre for Aboriginal Economic Policy Research, Reference No 48 (2006), p 1. At http://www.anu.edu.au/caepr/educationfutures/ref048.pdf (viewed 1 June 2009).
[40] K Storry, Tackling literacy in remote Aboriginal communities, Issue Analysis No. 73, Centre for Independent Studies (2006). At http://users.tpg.com.au/dlynn/kirstenstorry/IA73 (viewed 1 June 2009).
[41] Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2007 Report (2007), section 6. At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2007/keyindicators2007.pdf (viewed 4 June 2009).
[42] UN Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 4, para 31.
[43] Department of Employment, Education and Training, Northern Territory Government, Indigenous Languages and Culture in Northern Territory Schools Report 2004 – 2005, pp 34 – 37. At http://www.det.nt.gov.au/education/indigenous_education/previous_publications/indigenous_languages_culture_report/indigenous_languages_culture_report.pdf (viewed 4 June 2009).
[44] Australian Bureau of Statistics, Prisoners in Australia (2008), p 3. At http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/F618C51B775B2CF7CA25751B0014A2D5/$File/45170_2008.pdf (viewed 1 June 2009).
[45] Australian Bureau of Statistics, above, p 6.
[46] Australian Institute of Health and Welfare, Juvenile Justice in Australia 2006-2007 (2008). At http://www.aihw.gov.au/publications/juv/jjia06-07/jjia06-07.pdf (viewed 1 June 2009).
[47] UN Committee against Torture, Concluding observations of the Committee against Torture: Australia, UN Doc CAT/C/AUS/CO/3 (2008). At http://www2.ohchr.org/english/bodies/cat/cats40.htm (viewed 4 June 2009)
[48]Crimes Amendment (Bail and Sentencing) Act 2006 (Cth).
[49]International Covenant on Civil and Political Rights (ICCPR), 1966, art 27, at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed 22 May 2009); UN Human Rights Committee, General Comment 23: The rights of minorities (Art 27), UN CCPR/C/21/Rev.1/Add.5 (1994), para 7, at http://www.unhchr.ch/tbs/doc.nsf/0/fb7fb12c2fb8bb21c12563ed004df111?Opendocument (viewed 4 June 2009). For further details, see Human Rights and Equal Opportunity Commission, Senate Legal and Constitutional Affairs Committee on the Crimes Amendment (Bail And Sentencing) Bill 2006
(27 September 2006). At: http://www.humanrights.gov.au/legal/submissions/crimes_amendment.html (viewed 4 June 2009).
[50]Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979. At http://www2.ohchr.org/english/law/cedaw.htm (viewed 29 May 2009).
[51]Convention on the Rights of the Child (CRC), 1989. At http://www.unhchr.ch/html/menu3/b/k2crc.htm (viewed 29 May 2009).
[52] See Sentencing Act 1995 (NT), ss 78BA, 78BB.
[53] Human Rights and Equal Opportunity Commission, Bringing them home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997). At http://www.humanrights.gov.au/social_justice/bth_report/report/index.html (viewed 4 June 2009).
[54] Commonwealth, Parliamentary Debates, note 22, p 167.
[55] UN Human Rights Committee, Concluding observations of the Human Rights Committee: Australia, UN Doc A/55/40 (2000). At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.55.40,paras.498-528.En?OpenDocument (viewed 2 June 2009).
[56] See Human Rights and Equal Opportunity Commission, Submission to the Senate Legal and Constitutional References and Legislation Committee Inquiry into Stolen Wages (1 August 2006), paras 13 - 24. At http://www.humanrights.gov.au/legal/submissions/stolen_wages_2006.html (viewed 4 June 2009).
[57] Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Unfinished Business: Indigenous Stolen Wages (2006). At http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/report/index.htm (viewed 4 June 2009).
[58]Native Title Act 1993 (Cth), Preamble.
[59]Bodney v Bennell [2008] FCAFC 63, para 89 (Finn, Sundberg and Mansfrield JJ); affirming Risk v Northern Territory of Australia [2006] FCA 404, para 97 (Mansfield J).
[60] See Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, paras 25 - 26, 44, 78 - 89 (Gleeson CJ, Gummow and Hayne JJ) for the High Court’s comments on the Full Federal Court’s consideration of ‘traditional’, and for the level of adaptation of traditional law and custom permitted. For commentary on the limitations of the Native Title Act in recognising or allowing for revitalisation of culture, and limited adaptation of cultural traditions, see Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007 (2008), pp 178 - 181, at http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 4 June 2009) and Native Title Report 2008 (2009), pp 87 - 88, at http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/index.html (viewed 4 June 2009). See also Chief Justice RS French, Lifting the burden of native title – some modest proposals for improvement (Speech delivered to the Native Title User Group, Adelaide, 9 July 2008). At http://www.fedcourt.gov.au/aboutct/judges_papers/speeches_frenchj35.rtf.
[61] The Native Title Act was amended by the Native Title Amendment Act 2007 (Cth) and the Native Title Amendment (Technical Amendments) Act 2007 (Cth). The Native Title Amendment Bill 2009 was before Parliament at the time of writing.
[62] See Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, note 60.
[63] National Native Title Tribunal, National Report: Native Title (2009). At http://www.nntt.gov.au/Applications-And-Determinations/Procedures-and-Guidelines/Documents/National%20Report%20Card%20-%20March%202009.pdf (viewed 4 June 2009).
[64] See Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, note 60.
[65]Northern Territory National Emergency Response Act 2007 (Cth), ss 51(1), 51(2).
[66] Australian Human Rights Commission, Reports to the Minister under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). At http://www.humanrights.gov.au/legal/HREOCA_reports/index.html.
[67] Australian Human Rights Commission, 2008 Immigration detention report: Summary of observations following visits to Australia’s immigration detention facilities (January 2009), at http://humanrights.gov.au/human_rights/immigration/idc2008.html (viewed 4 June 2009);
Human Rights and Equal Opportunity Commission, Summary of observations following the inspection of mainland immigration detention facilities 2007 (December 2007), at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/summary_idc_report07.pdf; Human Rights and Equal Opportunity Commission, Summary of observations following the inspection of mainland immigration detention facilities 2006 (January 2007), at http://www.humanrights.gov.au/pdf/human_rights/HREOC_IDC_20070119.pdf (viewed 4 June 2009).
[68] See, for example, Human Rights and Equal Opportunity Commission, Submission to the Joint Standing Committee on Migration Inquiry into Immigration Detention in Australia (4 August 2008), at http://www.humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (viewed 4 June 2009).
[69] Human Rights and Equal Opportunity Commission, A last resort? National Inquiry into Children in Immigration Detention (2004), at http://www.humanrights.gov.au/human_rights/children_detention_report/report/PDF/alr_complete.pdf (viewed 2 June 2009); Human Rights and Equal Opportunity Commission, Those who’ve come across the seas – Detention of unauthorised arrivals (1998), at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf (viewed 2 June 2009).
[70] Australian Human Rights Commission, 2008 Immigration detention report, note 67.
[71] Conclusion No 44 of the Executive Committee of the United Nations High Commissioner for Refugees states that where the detention of asylum seekers is deemed necessary, it should only be used to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum seekers have destroyed their travel and/or identification documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order. See United Nations High Commissioner for Refugees, Executive Committee, Conclusion No. 44 (XXXVII) - Detention of Refugees and Asylum Seekers (13 October 1986). At http://www.unhcr.org/refworld/docid/3ae68c43c0.html (viewed 4 June 2009).
[72] Human Rights and Equal Opportunity Commission, A last resort?, note 69.
[73] ICCPR, note 49, art 9(1); CRC, note 51, art 37 (b).
[74] CRC, above, art 37(b).
[75] See, for example, Human Rights and Equal Opportunity Commission, A last resort?, note 69, ch 9.
[76] C Evans, New Directions in Detention – Restoring Integrity to Australia’s Immigration System (Speech delivered at the Centre for International and Public Law Seminar, ANU, Canberra, 29 July 2008). At http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 4 June 2009).
[77] See, for example, Human Rights and Equal Opportunity Commission, Commission submission to Joint Standing Committee on Migration, note 68, pp 13 - 15.
[78] UN Human Rights Committee, A v Australia, Communication No 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), at http://www.bayefsky.com/html/109_australiavws560.php (viewed 1 June 2009); UN Human Rights Committee, C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), at http://www.unhchr.ch/tbs/doc.nsf/0/f8755fbb0a55e15ac1256c7f002f17bd?Opendocument (viewed 2 June 2009); UN Human Rights Committee, Bakhtiyari v Australia, Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003), at http://www.unhchr.ch/tbs/doc.nsf/0/8662db397d948638c1256de2003b3d6a?Opendocument (viewed 4 June 2009); UN Human Rights Committee, D & E v Australia, Communication No 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (2006), at https://www1.umn.edu/humanrts/undocs/1050-2002.html (viewed 4 June 2009).
[79]Migration Act 1958 (Cth), s 46A.
[80]Migration Act 1958 (Cth), s 494AA.
[81]Convention Relating to the Status of Refugees, 1951. At http://www.unhchr.ch/html/menu3/b/o_c_ref.htm (viewed 5 June 2009).
[82] For further details, see Australian Human Rights Commission, 2008 Immigration detention report, note 67, pp 70 - 79; Human Rights and Equal Opportunity Commission, Submission to Joint Standing Committee on Migration, note 68, pp 15 - 16; Human Rights and Equal Opportunity Commission, Submission to the Senate Legal and Constitutional Legislation Committee on the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (22 May 2006), at http://www.humanrights.gov.au/legal/submissions/migration20060522.html (viewed 4 June 2009)
[83] See Human Rights and Equal Opportunity Commission, A last resort?, note 69, Recommendation 4, pp 877 - 880; Australian Human Rights Commission, 2008 Immigration detention report, note 67, p 18; Australian Human Rights Commission, Comments on Australia’s Compliance with the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (April 2008), at http://www.humanrights.gov.au/legal/submissions/2008/080415_torture.html (viewed 4 June 2009). In 2008, the UN Committee against Torture also recommended that immigration detention standards be codified in legislation: Committee against Torture, Concluding Observations: Australia, note 47.
[84] See Human Rights and Equal Opportunity Commission, Submission to Joint Standing Committee on Migration, note 68, pp 20 - 22; Australian Human Rights Commission, Submission to the Senate Select Committee on Ministerial Discretion in Migration (2003), at http://www.humanrights.gov.au/legal/submissions/migration_matters.html (viewed 4 June 2009).
[85] See, for example, Human Rights and Equal Opportunity Commission, Submission to the Citizenship Taskforce on the discussion paper ‘Australian citizenship: much more than just a ceremony’ (September 2006), at http://www.humanrights.gov.au/racial_discrimination/report/citizenship_paper_2006.html (viewed 4 June 2009); Human Rights and Equal Opportunity Commission, Submission to the Legal and Constitutional Affairs Committee on the Australian Citizenship Amendment (Citizenship Testing Bill) 2007 (6 July 2007), at http://www.humanrights.gov.au/legal/submissions/2007/aust_citizenship_amendment.html (viewed 4 June 2009).
[86] This is consistent with the UN High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, Report of the High Commissioner for Human Rights to the Economic and Social Council, UN Doc E/2002/68/Add.1 (2002). At http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/caf3deb2b05d4f35c1256bf30051a003?opendocument (viewed 4 June 2009). See further E Broderick, Slavery in the 21st Century: A Human Rights Challenge (Speech delivered at the Australian Human Rights Commission, Sydney, 16 October 2008). At http://www.humanrights.gov.au/about/media/speeches/sex_discrim/2008/20081014_slavery.html (viewed 4 June 2009).
[87] UN Human Rights Committee, Concluding Observations: Australia (2009), note 9, para 22.
[88] Australian National Audit Office, Management of the Australian Government’s Action Plan to Eradicate Trafficking in Persons, Report No 30 (2008-2009), para 2.10. At http://www.anao.gov.au/director/publications/auditreports/2008-2009.cfm?pageNumber=3 (viewed 4 June 2009).
[89] The award was made under the Victims Support and Rehabilitation Act 1996 (NSW) in response to a claim for compensation for sexual assault by a Thai woman who was trafficked to Australia in 1995 when she was 13: N Craig, ‘Sex slave victim wins abuse claim’, The Age, 29 May 2007. At http://www.theage.com.au/news/national/sex-slave-victim-wins-abuse-claim/2007/05/28/1180205160434.html (viewed 4 June 2009).
[90] These could include establishing a federal compensation scheme for victims of crime; exploring the potential of the Proceeds of Crime Act 2002 (Cth) to enable the forfeiture of an offender’s assets to provide compensation to victims and pursuing reparations orders under the Crimes Act 1914 (Cth); and improving the access of trafficked people to information and legal advice about their existing avenues for making compensation claims, including claims for the recovery of unpaid wages.
[91] Australian Government National Roundtable on People Trafficking, ‘Statement of Outcomes’ (23 October 2008). At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(C7C220BBE2D77410637AB17935C2BD2E)~TraffickingRoundtableOnPeopleTrafficking-StatementofOutcomes-October2008.doc/$file/TraffickingRoundtableOnPeopleTrafficking-StatementofOutcomes-October2008.doc. See further Australian Institute of Criminology, Labour Trafficking: key concepts and issues, Transnational Crime Brief, No. 3 (2009). At http://www.aic.gov.au/publications/tcb/tcb003.html (viewed 4 June 2009).
[92] ICCPR, note 49, art 9(1).
[93] ICCPR, above, art 9(4).
[94]Crimes Act 1914 (Cth), pt IC, div 2.
[95]Crimes Act 1914 (Cth), s 23CA(4)(b).
[96]Crimes Act 1914 (Cth), s 23DA(7).
[97]Crimes Act 1914 (Cth), s 23CA(8).
[98]Crimes Act 1914 (Cth), s 23CA(8)(m).
[99]Crimes Act 1914 (Cth), s 23CA(8)(m).
[100]Australian Security Intelligence Organisation Act 1979 (Cth), pt III, div 3.
[101]Australian Security Intelligence Organisation Act 1979 (Cth), s 34G(4).
[102]Australian Security Intelligence Organisation Act 1979 (Cth), s 34ZS.
[103] See Human Rights and Equal Opportunity Commission, Submission to the Security Legislation Review Committee (January 2006), at http://www.humanrights.gov.au/legal/submissions/security_legislation_review.html (viewed 4 June 2009); Human Rights and Equal Opportunity Commission, Submission to the Clarke Inquiry on the case of Dr Mohamed Haneef (May 2008), at http://www.humanrights.gov.au/legal/submissions/2008/200805_haneef.html (viewed 4 June 2009).
[104]Inquiry by the Hon. John Clarke QC into the case of Dr Mohamed Haneef (November 2008), Recommendation 4 at http://www.haneefcaseinquiry.gov.au (viewed 4 June 2009); Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Inquiry into the proscription of ‘terrorist organisations’ under the Australian Criminal Code (2007), Recommendation 7(b), at http://www.aph.gov.au/House/committee/pjcis/proscription/report/front.pdf (viewed 4 June 2009); Parliamentary Joint Committee on Intelligence and Security, Parliament of Australia, Review of Security and Counter Terrorism Legislation (December 2006), Recommendation 2, at http://www.aph.gov.au/house/committee/pjcis/securityleg/report.htm (viewed 4 June 2009); Security Legislation Review Committee, Parliament of Australia, Report of the Security Legislation Review Committee (2006), para 18.2, at http://www.ag.gov.au/www/agd/agd.nsf/Page/National_securityReviewsSecurity_Legislation_Review_Committee (viewed 4 June 2009).
[105] The Hon R McClelland, Statement on the tabling of the Government’s response to reviews of national security legislation and the public report of the Inquiry by the Hon. John Clarke QC into the case of Dr Mohamed Haneef (23 December 2008), paras 16 - 18. At http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/50GS6/upload_binary/50gs60.pdf;fileType=application/pdf (viewed 4 June 2009).
[106] Parliamentary Joint Committee on Intelligence and Security, Inquiry into the proscription of ‘terrorist organisations’, note 104, Recommendation 7(b); Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter Terrorism Legislation, note 104, p 21. The Review of Security and Counter Terrorism Legislation supported many of the recommendations of the earlier report.
[107] Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter Terrorism Legislation, note 104, pp 23 – 38.
[108] See, for example, reports by Australian Muslim Civil Rights Advocacy Network, available at: http://www.amcran.org (viewed 4 June 2009).
[109] Human Rights and Equal Opportunity Commission, Ismaع–Listen: National consultations on eliminating prejudice against Arab and Muslim Australians, 2004. At http://www.humanrights.gov.au/racial_discrimination/isma/index.html (viewed 5 June 2009).
[110] Security Legislation Review Committee, note 104, p 12.
[111] Parliamentary Joint Committee on Intelligence and Security, Review of Security and Counter Terrorism Legislation, note 104, para 3.3.
[112] Parliamentary Joint Committee on Intelligence and Security, above, para 3.5.
[113] Parliamentary Joint Committee on Intelligence and Security, above; Security Legislation Review Committee, note 104.
[114] Australian Human Rights Commission, Muslim and Community Partnerships, http://www.humanrights.gov.au/partnerships/about.html (viewed 4 June 2009).
[115] Human Rights and Equal Opportunity Commission, Gender Equality: What matters for Australian women and men (2008). At http://www.humanrights.gov.au/sex_discrimination/listeningtour/index.html (viewed 4 June 2009).
[116] Human Rights and Equal Opportunity Commission, above, p 20.
[117] See Human Rights and Equal Opportunity Commission, Submission to the Senate Standing Committee on Legal and Constitutional Affairs on the Inquiry into the Effectiveness of the Sex Discrimination Act 1984 (Cth) in Eliminating Discrimination and Promoting Gender Equality (1 September 2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 7 June 2009).
[118] Human Rights and Equal Opportunity Commission, above.
[119] See Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equality (2008). At http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm (viewed 7 June 2009).
[120]Maternity Protection Convention, 2000 (No 183). At http://www.ilo.org/ilolex/cgi-lex/convde.pl?C183 (viewed 9 June 2009).
[121] See Human Rights and Equal Opportunity Commission, Submission (No 1) to the Productivity Commission’s Inquiry into Paid Maternity, Paternity and Parental Leave (2 June 2008), at http://humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 4 June 2009); Human Rights and Equal Opportunity Commission, Submission (No 2) to the Productivity Commission’s Inquiry into Paid Maternity, Paternity and Parental Leave (24 November 2008), at http://humanrights.gov.au/legal/submissions/2008/20081124_maternity.html (viewed 4 June 2009).
[122] Publications from the Commission’s two-year Women, Men, Work and Family project are available at http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 4 June 2009).
[123] Australian Human Rights Commission, Submission to the Australian Government Department of Education, Employment and Workplace Relations on the Discussion Paper National Employment Standards Exposure Draft (4 April 2008). At http://humanrights.gov.au/legal/submissions/2008/20080404_deewr.html (viewed 4 June 2009).
[124] See Human Rights and Equal Opportunity Commission, Submission to the Inquiry into the Effectiveness of the Sex Discrimination Act 1984, note 117, recommendations.
[125] Human Rights and Equal Opportunity Commission, above.
[126] R Clare, Retirement Savings Update (2008), p 3. At http://www.superannuation.asn.au/Reports/default.aspx (viewed 4 June 2009).
[127] The poverty measurement tool for this study is 50% of the median income poverty line. B Heady & D Warren, Families, Incomes and Jobs, Volume 3: A Statistical Report on Waves 1 to 5 of the HILDA Survey (2008), p 55. At http://www.melbourneinstitute.com/hilda/statreport/statreport-v3-2008.pdf (viewed 4 June 2009).
[128] R Tanton et al, Old Single and Poor: Using Microsimulation and Microdata to Analyse Poverty and the Impact of Policy Change Among Older Australians (2008), p 15. At https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880 (viewed 4 June 2009).
[129] Australian Human Rights Commission, Submission to Australia’s Future Tax System (Retirement Income System) (27 February 2009). At http://www.humanrights.gov.au/legal/submissions/2009/20090227_tax.html (viewed 4 June 2009).
[130] Senate Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984, note 119.
[131] Australian Bureau of Statistics, Average Weekly Earnings, August 2008, Cat no. 6302.0 (2008). At http://www.abs.gov.au/ausstats/abs@.nsf/mf/6302.0/ (viewed 4 June 2009).
[132] Human Rights and Equal Opportunity Commission, Sexual harassment: Serious business, Results of the 2008 Sexual Harassment National Telephone Survey (2008). At http://www.humanrights.gov.au/sexualharassment/serious_business/index.html (viewed 4 June 2009).
[133] Human Rights and Equal Opportunity Commission, Submission to the Inquiry into the Effectiveness of the Sex Discrimination Act 1984, note 117.
[134] J Mouzos and T Makkai, Women’s Experiences of Male Violence: Findings from the Australian Component of the International Violence Against Women Survey (IVAWS) (2004), p 3. At http://www.aic.gov.au/publications/rpp/56/RPP56.pdf (viewed 4 June 2009).
[135] Australian Bureau of Statistics, Personal Safety Survey (Reissue) (2005), p 11. At http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/056A404DAA576AE6CA2571D00080E985/$File/49060_2005%20(reissue).pdf (viewed 4 June 2009).
[136] VicHealth, The Health Costs of Violence: Measuring the burden of disease caused by intimate partner violence (2004), p 11. At http://www.vichealth.vic.gov.au/~/media/ProgramsandProjects/MentalHealthandWellBeing/DiscriminationandViolence/IntimatePartnerViolence/ipv.ashx (viewed 4 June 2009).
[137] Australian Institute of Health and Welfare, Homeless people in SAAP: SAAP National Data Collection annual report 2006-07 Australia (2008), p 35. At http://www.aihw.gov.au/publications/index.cfm/title/10523 (viewed 4 June 2009).
[138] Women With Disabilities Australia, Forgotten Sisters: A Global Review of Violence against Women with Disabilities (2007).
[139] CEDAW, note 50, art 2; United Nations Fourth World Conference for Women, Beijing Platform for Action (1995), section h. At www.un.org/womenwatch/daw/beijing/platform/institu.htm (viewed 4 June 2009).
[140] Australian Human Rights Commission, Submission to the Review Panel on Australia's Future Tax System, note 129, recommendation 15.
[141] Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act, note 119, recommendation 33.
[142] Senate Standing Committee on Legal and Constitutional Affairs, above, recommendation 33.
[143] ICCPR, note 49, arts 2, 12, 18, 19.
[144] See further Human Rights and Equal Opportunity Commission, Report of initial consultation of the Sex and Gender Diversity Project (July 2008). At http://www.humanrights.gov.au/genderdiversity/consultation_report2008.html (viewed 4 June 2009).
[145] Australian Human Rights Commission, Sex Files: the legal recognition of sex in documents and government records, Concluding Paper of the sex and gender diversity project (2009), at http://humanrights.gov.au/genderdiversity/sex_files2009.html (viewed 1 June 2009).
[146] The Commission’s views on the role of a National Disability Strategy in implementing the Disability Convention are set out in full in: Australian Human Rights Commission, National Disability Strategy: Australian Human Rights Commission Submission (November 2008). At http://www.humanrights.gov.au/disability_rights/commonwealth/NDS.htm
[147] See, for example, Human Rights and Equal Opportunity Commission, Submission to the Joint Standing Committee on Electoral Matters Inquiry into the 2007 federal election (15 May 2008). At http://www.aph.gov.au/house/committee/em/elect07/subs/sub097.pdf (viewed 4 June 2009).
[148] Joint Standing Committee on Electoral Matters, Report on the 2007 federal election electronic voting trials, 16 March 2009. At Report on the 2007 federal election electronic voting trials (viewed 11 June 2009).

[149] In 2006, the Australian Government passed legislation which excluded all people serving a sentence of imprisonment, of any length, from voting. The High Court later found that these amendments were constitutionally invalid: Roach v Electoral Commissioner (2007) 233 CLR 162.

[150] UN Human Rights Committee, General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25), UN Doc CCPR/C/21/Rev.1/Add.7 (1996), para 14. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/d0b7f023e8d6d9898025651e004bc0eb?Opendocument (viewed 4 June 2009).