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Building human rights into law and practice - Annual Report 2009-2010: Australian Human Rights Commission

The year in review

Building human rights into law and practice

We believe Australia can only truly deliver on its international obligations if human rights considerations become part of everyday law-making and policy.

To help make this happen, we prepare submissions to parliamentary inquiries, assess the human rights impact of federal laws and provide advice to the Australian Government.

We work with community groups, business, employers and others to identify what they can do to promote and protect human rights.

We direct our focus at areas of priority concern, including: women’s economic security, discrimination against mature workers, employment participation among people with disability and accessible housing design and construction for ageing Australians and those with a disability.

Strengthening laws to address sex discrimination and gender inequality

In June 2008 the Senate referred the Inquiry into the Effectiveness of the Commonwealth Sex Discrimination Act 1984 in Eliminating Discrimination and Promoting Gender Equality to the Senate Legal and Constitutional Affairs Committee. This review presented an opportunity to examine new ways of reducing sex discrimination, harassment and violence and was the first review of the legislation in over a decade.

The Commission lodged its submission to the review on 1 September 2008, making 54 recommendations for immediate reform of the Sex Discrimination Act (SDA), as well as calling for a second stage of reform which included 11 more extensive reform proposals. The government’s response to the review in June 2010 accepted a number of the recommendations of the Senate Committee to strengthen and modernise the Sex Discrimination Act. We were pleased to see the government quickly introduce legislation that will strengthen the gender equality laws of Australia. These amendments will provide greater protection for men and women with family responsibilities in all areas of employment and strengthen protection from sexual harassment for workers, as well as school students.

Balancing paid work and caring responsibilities

Successfully balancing paid work with family responsibilities remains a major challenge for a large number of Australians. With women continuing to do most of Australia’s unpaid caring work, the creation of workplaces that support women and men to balance paid work and share caring responsibilities is critical to achieving gender equality.

Many Australians are juggling their paid work with caring for their children, grandchildren and relatives with an illness or disability. With the rapid ageing of our population there will be increasing pressure on workers to balance the caring of elderly parents with paid work. Yet there remains a notable gap in the support provided by governments and employers.

We continue to challenge the way Australians think about work and family balance by promoting the value of family friendly work practices.

Establishing a paid parental leave scheme

We are delighted to report that the Sex Discrimination Commissioner and her predecessor have played an influential role in achieving a national scheme of paid leave for parents in Australia.

While our proposal for a national paid leave scheme for parents was outlined in our written submission to the Productivity Commission Inquiry into Paid Maternity, Paternity and Parental (November 2008), we continued to advocate for a national scheme of leave.

In May 2010 the Sex Discrimination Commissioner appeared before the Federal Senate Community Affairs Legislation Committee to give evidence for the inquiry into the Exposure Draft of the Paid Parental Leave Scheme Bill 2010. The Commissioner addressed two key issues: the inclusion of a superannuation component into the scheme and the need for a legislated independent review to be conducted two years after implementation.

After 30 years of strong advocacy, we welcomed the passage of Australia’s first Paid Parental Leave Scheme on 17 June 2010. We believe it is a triumph for mothers and parents and the broader community. It will help deliver stronger outcomes for mothers, families, business, the economy and our community as a whole. We were encouraged that all political parties were united in the view that the time for paid parental leave had come, and particularly pleased to see a two-year review included in the legislation.

We believe the scheme forms a solid base upon which we can improve over time. Improvements would include the addition of superannuation, an extension of the period of paid leave and lifting the level of payment. We will continue our advocacy for such improvement.

Advocating for flexibility in workplace culture

To be effective, flexible work arrangements should be an accepted part of all Australian workplaces. Caring is still seen as an individual choice and employees who have caring roles are often not adequately supported. Many workers are unable to obtain the flexible work arrangements they need. When it gets too hard to juggle their responsibilities, some have no option but to resign.

We believe that, to be effective, flexible work arrangements should be an accepted part of all Australian workplaces. They need to be available to men and women and cover all forms of caring responsibilities, not just young children. This is particularly important as our population ages and more and more workers need to care for older family members.

At the same time that we have been advocating for a system of paid parental leave for Australia, we have promoted law reform for the provision of better protection from discrimination for people in paid work with family and caring responsibilities. We have advocated for other family-friendly policies such as flexible working arrangements and job redesign.

On 1 January 2010 we welcomed the commencement of the National Employment Standard (NES) on the right to request a flexible work arrangement under the Fair Work Act 2009. However we believe that, in its current form, the NES does not properly address the full range of caring responsibilities that workers often have to meet. The right to request flexible work is currently restricted to carers of a child below school age or a child under 18 years old with a disability – overlooking carers of older children, elderly parents or a family member with a disability.

In its current form, the Sex Discrimination Act (SDA) also provides only limited protection from discrimination on the grounds of family and caring responsibilities. The Australian Government introduced legislation in June 2010 to amend the SDA to expand the protection of both female and male workers from discrimination on the grounds of their family and carer responsibilities.

We continue to advocate for further changes to the NES and SDA that will make flexible work a normal part of Australian workplace life.

Working to ensure lifetime economic security for women

Advocating for pay equity

We believe a concerted effort is needed to close the gender pay gap in our country. Women in Australia currently earn approximately 82 cents in the male dollar (full-time adult ordinary time earnings) and the gender gap in pay has widened over the last four years.

Pay inequity affects women’s involvement in the workforce and has long-lasting effects on their financial security. In addition, the fact that women on average earn less than men can limit the choices available to women and men trying to balance their work and family life. Couples make decisions about the division of paid work and unpaid caring work based on whose salary can better provide for the family’s needs.

The Australian workforce is highly segregated by gender and industries dominated by women have been historically undervalued. For example, industries such as aged care, child care, health and community services are female-dominated and generally lower paid than male-dominated industries such as engineering, banking and finance. But the gender pay gap is not limited to female-dominated industries. It is also particularly pronounced in ASX200 companies, where the gap is more than 10% higher than the current national average.

During the year under review, we have continued to advocate, with other key stakeholders, for action to be taken on this front. Some of the issues we have tried to elevate to the national agenda have included greater transparency in company pay rates and the development of a national pay equity strategy, which would strengthen our powers of intervention.

In November the Commission welcomed the release of the House of Representatives Standing Committee on Employment and Workplace Relations’ report. The Making it Fair: pay equity and associated issues related to increasing female participation in the workforce report provides further evidence of the systemic and worsening nature of the problem in Australia.

One of the most important reforms the report proposes is the elevation of the principle of equal pay for work of equal or comparable value from a ‘good to have’ to an ‘unambiguous obligation’.

Reforms proposed include changes to Australia’s industrial relations system, gender equality legislation and gender equality mechanisms, as well as changes which could benefit women working in low-paid occupations.

We welcome recommendations for the establishment of new mechanisms and processes to achieve pay equity. Also welcome is the recognition that many occupations in which women work in Australia have been historically undervalued, and that this may now be taken into account when minimum wages and awards are being set.

The Commission is also a member of the Equal Pay Alliance, which comprises over 150 representatives from business, unions and government. The Australian Services Union (ASU) has lodged the country’s first equal pay test case under the new Fair Work Act with Fair Work Australia, an action strongly supported by the alliance.

The ASU intends to increase the wages of almost 250 000 mostly female community sector workers across the country, particularly those working in caring and community industries. The ASU argues that low wages in a feminised industry like the community sector must be brought into line with pay rates for work of equal or comparable value.

The case will potentially impact upon a variety of workers in the community sector, including those in disability, aged care, community legal centres, domestic violence services and sexual assault workers. A positive outcome will have important implications.

Advocating for women’s financial security in retirement

There is a major gap between the financial security of Australian men and women in later life, with women facing a much greater risk of living in poverty.

Australia’s retirement income system is based on compulsory savings enforced through the superannuation guarantee and voluntary savings (both through superannuation and other sources), and supplemented by the government-provided age pension.

As superannuation savings are directly linked to paid work, women who take time out of paid work to care for children or other family members are effectively penalised in retirement savings. In Australian households, women undertake two thirds of the unpaid caring and domestic work and spend almost three times as many hours looking after children each week as men.

We believe the entire retirement income system must be reformed. In particular, we believe the retirement income system needs to include mechanisms that provide a financial reward for the unpaid caring work carried out during a person’s lifetime.

Reviews conducted by the Australian Government so far have failed to effectively address the gender inequality inherent in Australia’s retirement income system. While the recently announced changes to the superannuation system may have some benefits for people on low incomes, the persistent gender pay gap and the continuing ‘broken’ work patterns of women mean their retirement savings will continue to lag behind those of men.

We continue to advocate for the superannuation co-contribution scheme to be extended, for changes in the tax system that would assist in closing the gender pay gap between women and men, and for an inquiry into the recognition of unpaid caring work in our superannuation and pension schemes.

Strengthening women’s representation in decision-making roles

It is clear that the number of women in senior roles in the public and private sectors in Australia reflects neither the abilities of women nor their interest in occupying such positions. Despite making up 45% of Australia’s workforce, women remain grossly under-represented in leadership and management roles in virtually all sectors.

We believe strongly that increasing the representation of women at decision-making levels would help change the culture of many workplaces and institutions for the better. This has been a major area of advocacy for the Commission, particularly over the past financial year. Indeed we have worked continuously with other key stakeholders to raise this to the national agenda.

We were pleased to see corporate Australia taking concrete steps to remedy gender inequality in its leadership structures with the announcement that revised ASX Corporate Governance Principles and Recommendations will come into effect on 1 January 2011. As of this date, they will require ASX200 companies to set targets for increasing the number of women on their boards and at senior executive level.

During the year, and following ongoing meetings with the Sex Discrimination Commissioner, a new leadership group of male CEOs and chairmen from a diverse set of Australian companies was formed. Its objective is to elevate the issue of women’s representation in the corporate sector on the national business agenda. The formation of the group was prompted by the ASX Corporate Governance Council recommendations on diversity, which require each listed entity on the ASX to adopt and disclose a diversity policy that includes measurable gender objectives.

The group will continue to meet with the Commissioner and use their collective influence and personal commitment to develop and drive strategies that will boost gender equality in the Australian corporate sector.

The Commission believes the formation of the group will help build momentum to the adoption of the ASX council reforms, due to be implemented in January 2011.

Most state and territory governments have already set gender equality targets for government appointed boards and committees and these have had a dramatic impact on representation of women on these bodies. We believe the Australian Government should follow suit and take concrete steps to ensure greater gender equality in government appointments, including the public service.

Working to improve the lives of people with disability and ageing Australians

Making housing safer and more accessible

At the end of 2006 the Commission called for a national plan of action to address the need to improve the way we design and construct housing so that it will better meet the needs of families as their circumstances change. Adopting a more universal approach to the design of houses would ensure they are safer, easier to live in and easier to adapt.

In October 2009 Parliamentary Secretary Bill Shorten and Ms Therese Rein hosted the first meeting of a National Dialogue on Universal Housing Design. It linked the Australian Human Rights Commission with organisations representing governments, architects, builders, the disability and ageing sectors and others.

The National Dialogue met throughout early 2010 and is expected to release a final strategic plan which will seek to address many of the issues we identified in 2006.

These efforts represent a unique partnership between industry, community organisations and government. An announcement on how work is to progress is expected early in the next financial year.

Making public buildings accessible

After more than 10 years of negotiation and consultation between the Commission and other regulators, government, industry and the disability community, the federal Government has introduced new standards for access to public buildings for people with disability.

The Disability (Access to Premises – Buildings) Standards clarify how designers, developers, managers and building certifiers can meet their responsibilities under discrimination law to ensure buildings are accessible to people with disability.

The standards were tabled in Parliament in March 2010, together with the government’s response to the House of Representatives Standing Committee on Legal and Constitutional Affairs Inquiry on the standards. During the launch of the standards the Attorney General thanked the Commission for its outstanding contribution throughout this process.

What does this mean in practical terms? As of the expected implementation date of 1 May 2011, any new public building, or existing building undergoing renovation which requires a building approval, will be required to comply. The trigger date of 1 May allows time for state and territory building authorities to make changes to building laws that reflect the content of the premises standards. It also provides time for building professionals to be trained in the new requirements.

The Commission has been asked by the Attorney General to take a lead role in providing training. In partnership with the Australian Building Codes Board we are developing material and seminars on the premises standards to be delivered later in 2010.

While advocates from all sectors will be looking to the first five-year review to improve the clarity and effectiveness of the standards, the completion of this project, expected in late 2010, will herald the most significant changes in access requirements for public buildings in Australia’s history.

Improving accessibility of television, cinema, DVD and the Internet

People who are deaf or have a hearing impairment and people who are blind or have low vision still do not have equitable access to electronic media forms that rely on either audio or visual capacity. Their right to do so is identified in the UN Convention on the Rights of Persons with Disabilities and covered under discrimination law.

The Commission has had long involvement in media access issues, stretching back to 2000 when we undertook a public investigation process in relation to a cinema access complaint. We continue to work with community organisations and representative bodies in the TV, cinema, DVD and Internet industries to improve access to these media forms for people with disability.

Our work focuses on the availability of captions and audio description, and involves direct negotiations, development of industry standards, assessment of temporary exemption applications and contributing to a national investigation into media access currently being undertaken by federal government.

This investigation continued throughout 2009–10 with the 26 November 2009 release by Minister Conroy of a second discussion report which identified approaches the government was considering to improve media access. (The Access to Electronic Media for the Hearing and Vision Impaired: Approaches for Consideration report included a number of approaches that had been identified by the Commission.)

In November 2009 we received an application for a temporary exemption application on behalf of four major cinema exhibitors (Hoyts, Greater Union, Village, and Readings) which, in return for the exemption sought, proposed an expansion of cinema captioning and an introduction of audio description in 35 cinema complexes over a two and-a-half-year period. In April 2010 the Commission declined the application.

This was the catalyst for new progress in this area. Upon refusal of the application, the Parliamentary Secretary Bill Shorten, with the support of Minister Conroy and the Commission, encouraged the industry to develop a more substantial plan to address access needs in all cinema complexes operated by the original applicants.

By the end of June 2010 negotiations had resulted in a broad in-principle agreement between industry and the disability community for a plan that would ensure access in each of the 132 cinema complexes operated by the applicants. When the proposed rollout is complete at the end of 2014 Australia is likely to have the highest per-capita levels of cinema access in the world.

Increasing the employment participation of people with disability

In September 2009 the government released the National Mental Health and Disability Employment Strategy.

After its release, the Minister invited the Commission, among others, to participate in the Disability Employment Services Reference Group. The Reference Group will give the Minister strategic advice on the future of disability employment services as well as matters covered in the National Mental Health and Disability Employment Strategy.

In May 2010, we released Workers with a mental illness: a practical guide for managers, which aims to help employers and managers better understand mental illness, develop strategies that assist workers with a mental illness and ensure their workplaces are healthy and productive. The guide has been endorsed by the Fair Work Ombudsman, beyond blue: the national depression initiative, SANE Australia, the Mental Health Council of Australia, and was supported by Safe Work Australia.

It can be downloaded from the Commission’s website at: www.humanrights.gov.au/disability_rights/publications/workers_mental_illness_guide.html

Working for equitable health outcomes

For years we have worked with disability representatives and health sector organisations to promote better access to health services for people with disability. One barrier we have identified is a lack of adjustable-height examination beds that provide effective and dignified access for patients with physical disabilities who require procedures such as those for breast and cervical cancer screening.

Following submissions from the Commission and a broad group of community advocacy groups, the Royal Australian College of General Practitioners has proposed an amendment to the accreditation standards for general practices. The proposed amendment is for inclusion of a requirement that all general practices have at least one adjustable height examination bed.

Ensuring electoral access for people with vision impairment

The Commission has, for several years, advocated for the government to trial an electronic secret ballot for people with a sight disability. A trial of electronic voting took place at the 2007 federal election and its success has led to a change in law.

The government has now passed an amendment to the Electoral Act which will ensure the 300 000 Australians who are blind or have low vision have a secret ballot in federal elections.

Initially the changes will allow the Electoral Commissioner to determine the method of secret ballot. Electors who are blind or have low vision will have the option of attending an Australian Electoral Commission divisional office where they can be connected to trained call centre operators for help in completing their ballot papers. We expect that over time alternative means of ensuring secret ballots will be developed and implemented.

Working towards Internet accessibility

Many people with a disability do not enjoy the same levels of access to websites and web content as other members of the community. This results in exclusion from opportunities to engage in social, cultural, political, recreational and economic activities.

Throughout 2009–10 the Commission has contributed to the international development of revised web accessibility guidelines (WCAG 2.0) and worked with the federal government to get the new guidelines adopted as government policy.

The widespread adoption in Australia of WCAG 2.0 by both government and private sectors will significantly improve the levels of access to and usability of new and upgraded websites and recently-published web content. This will result in a significant reduction in the systemic exclusion of people with a disability that currently exists.

Indigenous hearing project

Indigenous people experience hearing loss at up to 10 times the rate of other Australians – a crisis that the World Health Organisation referred to as a ‘massive public health problem which needs urgent attention’.

We have engaged a consultant to research and write a paper identifying the impacts of hearing impairment and deafness in Aboriginal and Torres Strait Islander communities. The report, at draft stage in the 2009–10 period, collates evidence about the extent to which hearing impairment and deafness can affect the rights of Aboriginal and Torres Strait Islander peoples, and identifies solutions and opportunities for action.

Ensuring our laws and practice prohibit torture

In May 2009 the Australian Government signed the Optional Protocol to the Convention against Torture (OPCAT). In signing OPCAT, the government has taken a significant step towards establishing greater oversight and inspection of its places of detention. Once Australia ratifies OPCAT and becomes a full party, it will be required to establish a national system of inspections of all places of detention. (We have urged the Australian Government to ratify and implement this agreement.)

In November 2009 the Commission and the Asia Pacific Forum of National Human Rights Institutions co-hosted a national seminar about the implementation of OPCAT in Australia. The seminar was attended by representatives from government agencies, non-government organisations and academics, as well as representatives from the Geneva-based Association for the Prevention of Torture.

We welcomed the passage of the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Bill 2009 which criminalises torture and prohibits the death penalty. With this landmark legislation in place, Australia has taken a further important step towards meeting our international human rights obligations. The legislation will criminalise acts of torture whether committed within or outside Australia.

The bill also amends the Commonwealth Death Penalty Abolition Act 1973 to extend the application of the current Commonwealth prohibition on the death penalty to state laws. The death penalty has been abolished in Australia and the passage of this bill ensures it cannot be reintroduced. It fulfils Australia’s obligations under the Second Optional Protocol to the International Covenant on Civil and Political Rights.

Our work in this area continues.