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Taking stock of Australia’s human rights record – Submission by the Australian Human Rights Commission under the Universal Periodic Review process (2010)

Commission Commission – General
Friday 14 December, 2012

Taking stock of Australia’s human rights record Taking stock of Australia’s human rights record

Submission by the Australian Human Rights Commission under the Universal Periodic Review process


Foreword

Australia will shortly participate in the Universal Periodic Review at
the United Nations Human Rights Council.

This significant new process involves a review of the human rights
record of each member of the UN on a periodic basis (at present, every
four years). Australia makes its first appearance in January 2011.

The UPR provides two major opportunities for Australia:

  • It allows the Australian community and Government to take stock
    of how well we are protecting the human rights of all people in
    Australia; and
  • It permits the Australian Government to inform the international
    community of the human rights situation in Australia and to
    engage with other countries about specified steps it will take to
    improve the enjoyment of human rights in Australia.

National Human Rights Institutions, such as the Commission, are
encouraged to engage in the process to provide an independent
assessment of the progress of the country under review.

This document contains the submission made by the Australian Human
Rights Commission to the UN Human Rights Council in July 2010.

It provides a robust account of what we are doing well in Australia in
protecting human rights and where we could do better.

Processes like the UPR are not simply events that occur in distant corridors of the United Nations. They are intended to positively improve the human rights systems of countries across the world.

It is worth recalling the vision of the then Secretary General of the United Nations, Kofi Annan, when the UPR and other reforms were introduced. He specified the following challenge for governments all around the world in
relation to human rights. He said:

When it comes to laws on the books, no generation has inherited the riches that we have. We are blessed with what amounts to an international bill of human rights, among which are impressive norms to protect the weakest
among us, including victims of conflict and persecution... But without implementation, our declarations ring
hollow. Without action, our promises are meaningless...

The time has come for Governments to be held to account, both to their citizens and to each other, for respect of the dignity of the individual, to which they too often pay only lip service. We must move from an era of
legislation to an era of implementation.
Our declared principles and our common interests demand no less.
[i]

We publish this submission to build awareness and understanding of the human rights challenges that remain in
Australia. It is timely to do so with the release of the new Australian Human Rights Framework by the Attorney-
General in April 2010.

This Framework commits the Government to a series of human rights reforms, including:

  • The introduction of a National Action Plan on Human Rights;
  • Broad-ranging community education about human rights; and
  • Improved processes for parliamentary consideration of human rights issues.

The outcomes of the UPR process in 2011 will provide valuable guidance for these initiatives.

The Commission looks forward to continued public debate about the best ways forward in protecting and promoting human rights in Australia for everyone, everywhere, everyday.

The Hon Catherine Branson QC
President and Human Rights Commissioner


1 Introduction

  1. The Australian Human Rights Commission is a national human rights
    institution operating in conformity with the ‘Paris
    Principles’.[1] In preparing
    this submission, the Commission has consulted human rights agencies at the state
    / territory level[2], NGOs and members
    of the public.[3]

2 Background and framework for promotion and
protection of human rights

A. Scope of international obligations

  1. Australia has a longstanding commitment to international human rights
    standards and their development, and is a party to seven of the core human
    rights treaties.[4] To provide more
    comprehensive human rights protection, the Commission recommends that the
    Government ratify the Optional Protocol to ICESCR
    ; expedite ratification
    of the Optional Protocol to CAT and the establishment of a National Preventive
    Mechanism for places of detention
    ; and consider ratifying ILO Convention
    169 and the Convention on Migrant Workers.

B. National framework

  1. Australia has strong traditions of
    liberal democracy, an independent judiciary and a robust media. Our largely
    harmonious and prosperous society can mask systemic weaknesses and gaps in the
    protection of human rights that are compounded by our federated system of
    government. In 2009, the Government convened a national human rights
    consultation which concluded that there is a patchwork of protection in
    Australia with ‘its inadequacies... felt most keenly by the marginalised
    and the vulnerable’ and with the ‘current legal and institutional
    framework fall(ing) short of th(e) commitment to respect, protect and fulfil
    human rights’.[5]

  2. While Australia has a strong record of ratification of human rights
    treaties, there remains an ‘implementation gap’
    domestically.[6] The Australian
    Constitution and common law provides limited human rights
    protection.[7]The absence of an
    entrenched guarantee of equality / non-discrimination in the Constitution is of
    particular concern due to current laws that discriminate against Indigenous
    peoples on the basis of race.[8] While
    there are federal, state and territory discrimination laws, there are
    inconsistencies between them and their coverage varies and is not
    comprehensive.[9] There is no other
    comprehensive human rights protection legislation and access to remedies for
    human rights breaches is accordingly
    limited.[10]The Commission
    recommends that the Government fully incorporate into Australian law its human
    rights obligations, including through the adoption of a federal Human Rights
    Act.
    The Australian Human Rights Commission’s resources have also not
    kept pace with demand for its services, with the six statutory offices which
    constitute the Commission currently filled by four
    individuals[11] and substantial
    increases in complaint handling loads having led to backlogs in complaint
    handling.[12] The Commission is
    particularly concerned that there is no national policy focus or monitoring of
    the rights of the child. The Commission further recommends that a National
    Children’s Commissioner be established to monitor compliance with the
    CRC.

  3. The Government released the Australian Human Rights Framework in 2010. It
    commits to human rights education for the community and public sector;
    developing a National Action Plan on Human Rights; establishing a federal
    parliamentary scrutiny committee on human
    rights[13]; requiring that all new
    federal legislation be accompanied by a statement of compatibility with
    Australia’s human rights obligations; and developing a consolidated
    federal anti-discrimination law.[14] These measures will contribute to improved protection of human rights in
    Australia and address some, but not all, of the weaknesses in Australia’s
    human rights protection system.

2 Promotion and protection of human rights on the
ground
[15]

A. Equality before the law and non-discrimination

  1. Aboriginal and Torres Strait Islander peoples (or Indigenous
    peoples):
    Indigenous peoples in Australia experience poorer outcomes in
    education, employment, income and home ownership compared to other Australians.
    They also experience higher rates of family violence and child abuse, and
    over-representation in prisons (with little improvement over
    decades).[16] The Government is to
    be commended for the significant commitments and reforms that it has introduced
    to ‘Close the Gap’ between Indigenous and non-Indigenous peoples in
    life expectancy, health, education and
    employment.[17] It has also
    supported the National Congress of Australia’s First Peoples, which was
    established to provide a representative voice for Indigenous peoples. The
    Commission recommends that the Government ensure the full participation of
    Indigenous peoples in decision making that affects them, including through
    developing measures to implement the Declaration on the Rights of Indigenous
    Peoples, and also commit to specific targets and timelines for reducing the
    disproportionate rates of Indigenous peoples in care and protection, juvenile
    detention and adult prisons, including through a greater focus on preventative
    measures (such as justice reinvestment strategies) and on supporting women and
    their families, and victims of violence and crime.

  2. Australia’s legal system does not formally recognise
    Indigenous peoples as the first peoples of this country, has not provided
    redress for past policies of child
    removal[18] and limits the
    protection of their traditional rights to land and culture. The Commission
    recommends that the Government take steps to recognise Aboriginal and Torres
    Strait Islander peoples in the Australian Constitution; remove the
    discriminatory section 25 of the Constitution and replace it with a clause
    guaranteeing equality before the law; reform the Native Title Act to
    address measures that have been found to be racially
    discriminatory;[19] provide
    reparations to Indigenous communities for harm resulting from past child removal
    practices; and take measures to protect and promote Indigenous cultural and
    intellectual property, connection to traditional land through homelands and
    outstations, as well as the use of increasingly threatened languages, including
    through support for bilingual education programs.

  3. The Commission is particularly concerned at the operation of the Northern
    Territory Emergency Response (NTER) legislation since 2007. Recent amendments
    have gone some way to addressing existing concerns about resort to measures that
    are discriminatory and breach human rights, though some concerns
    remain.[20]The Commission
    recommends that the Northern Territory Emergency Response (or intervention) be
    conducted in a manner that is fully consistent with Australia’s human
    rights obligations and be rigorously monitored.

  4. Equality of women and men: Women in Australia continue to
    experience high level of sexual
    harassment[21] and physical and
    sexual violence.[22] Women also have
    lower levels of workforce participation, are under-represented in managerial
    roles in both the private and public sectors and are paid less for the same work
    than men (while also being more likely to be engaged in low paid, casual and
    part-time work).Women also do the majority of unpaid caring and domestic
    work.[23] This contributes to a
    major gap between men’s and women’s financial security. It also
    means that women face a greater risk of living in poverty in their later
    years.[24]The Commission
    recommends that the Government
    implement
    measures to improve the balance between paid work and family and caring
    responsibilities; adopt measures to close the gender gap in pay, and explore
    options to recognise and reward unpaid caring work within superannuation and
    pension schemes to protect women’s economic security; promote and
    strengthen the representation of women in leadership and management roles; and
    strengthen gender equality laws and monitoring processes, including relevant
    enforcement and investigation powers.

  5. Older persons. Australia has a significantly ageing population and
    faces a range of human rights challenges relating to poverty, aged care and
    other issues.[25] Mature age workers
    are often in vulnerable forms of
    employment.[26] Older persons also
    experience discrimination because workplaces are insufficiently flexible for
    employees to meet their caring responsibilities. The Commission recommends
    that the Age Discrimination Act (ADA) be strengthened to better protect
    older persons from age discrimination, including by narrowing the broad range of
    exemptions which currently exist.

  6. People who are lesbian, gay or bisexual (LGB): There is no federal
    law prohibiting discrimination on the ground of sexuality. LGB people experience
    significant levels of violence, harassment and bullying in the workplace and the
    community.[27] Same-sex couples do
    not enjoy equality of rights including under laws governing civil
    marriage.[28]The Commission
    recommends that sexuality be included as a ground of discrimination federally
    and that the Government take all possible steps to enable equal recognition of
    same-sex marriage.[29]

  7. People who are intersex or sex and/or gender diverse: There is no
    federal law prohibiting discrimination on the grounds of sex or gender
    identity.[30] People who are sex
    and/or gender diverse face difficulties obtaining official documents that
    accurately reflect their
    status.[31] The Commission
    recommends that sex or gender diversity be included as grounds of discrimination
    in federal laws, and that the Sex Files report be implemented.

  8. People with disability: People with disability and their families
    do not enjoy all human rights in
    Australia.[32] There are particular
    concerns regarding adequacy of care for people with mental
    ill-health,[33] availability of
    supported accommodation for adults with disabilities, and support for disability
    carers. The Commission commends the development of a National Disability
    Strategy that aims to address obligations under the Convention on the Rights of
    Persons with Disabilities. The Commission recommends that the National
    Disability Strategy be integrated with the National Action Plan on Human Rights,
    including with benchmarks, timelines and monitoring processes.

B. Migrants, refugees and asylum seekers

  1. Mandatory
    immigration detention:
    The Commission has welcomed reforms by the current
    government, including its ‘New Directions in Detention’
    policy.[34] However, the legal
    architecture of mandatory immigration detention
    remains.[35] Many people spend
    prolonged periods in detention, with children detained in immigration detention
    facilities.[36] Most asylum seekers
    are detained in remote locations, restricting access to services and support
    networks and limiting the transparency of detention
    arrangements.[37] Asylum seekers who
    arrive in ‘excised offshore places’ are barred from the refugee
    status determination system under the Migration
    Act.[38] Further, in April 2010, the
    government suspended processing of refugee claims from Sri Lankan and Afghani
    asylum seekers.[39]The
    Commission recommends that the Government lift the suspension of processing of
    Afghani and Sri Lankan asylum seekers; and amend the Migration Act so that
    detention occurs only when necessary; only for a minimal period; and where it is
    a reasonable and proportionate means of achieving a legitimate aim. Decisions to
    detain people should be subject to prompt review by a court. The Commission also
    recommends that the Government implement the outstanding recommendations of A
    last resort?
    , the report of the National Inquiry into Children in
    Immigration Detention;
    [40] cease holding people in immigration detention on Christmas Island; and repeal
    the provisions of the Migration Act relating to ‘excised offshore
    places’.

  2. People from culturally and linguistically diverse backgrounds: Australia is a culturally diverse nation, with a longstanding commitment to
    multiculturalism. Despite this, some people experience discrimination,
    vilification or violence, increasingly through cyber-racism on the internet,
    because of their ethnic, racial, cultural, religious or linguistic
    background.[41] In recent years,
    this has been an increasing issue for Arab and Muslim Australians, newly arrived
    immigrants especially from Africa, and also for international students,
    particularly from India, who have been subjected to violent
    attacks.[42] The Government has
    recently received the Australian Multicultural Advisory Council’s (AMAC)
    advice on actions to further
    multiculturalism.[43]The
    Commission recommends that the Government renew its commitment to
    multiculturalism by implementing and funding the recommendations of the AMAC,
    and continue to support programs building resilience and social inclusion among
    culturally and linguistically diverse communities.

C. Right to life, liberty and security of the person

  1. Counter-terrorism laws: The Australian Government has introduced
    more than 50 new counter-terrorism laws since 2001, often without adequate
    consideration of their potential impacts on human
    rights.[44] Some aspects of these
    new laws have eroded common law protections of fundamental rights and
    freedoms.[45] For example, these
    laws have enabled: detention without charge for 12
    days;[46] secret searching of
    Australian homes and planting of surveillance devices, restricting movement
    through control orders issued by courts; and special powers of detention for the
    Australian Security Intelligence
    Organisation.[47]The
    Commission recommends that all counter-terrorism laws be rigorously monitored
    and amended to ensure they comply with Australia’s human rights
    obligations.[48]

  2. Violence: The Commission is concerned at the prevalence of
    violence, harassment and bullying in our society. The Commission notes the
    Government’s commitment to develop a National Plan to reduce violence
    against women and children. The Commission recommends that the Government
    ensure adequate and sustainable funding and independent monitoring of the
    national plan to reduce violence against women and children; and that there be
    increased attention to the prevalence of violence, bullying and harassment in
    our community, particularly in relation to children, the elderly, people with
    disability,
    [49] Indigenous
    peoples, people from culturally and linguistically diverse communities, people
    who are gay, lesbian or bisexual, and people who are intersex and sex and/or
    gender diverse.[50] The Commission
    also recommends improved access to legal services for
    women[51] and further reform of
    family law to better protect the safety of women and
    children.[52]

  3. Trafficking: The Commission remains concerned about cases of
    trafficking, as well as cases of forced labour and exploitation of migrant
    workers on business (long stay) visas subclass
    457.[53]The Commission
    recommends that laws on trafficking and related offences be reviewed and that
    the Government ensure access to effective remedies.

  4. Prisoners: The Commission is concerned at the lack of
    proportionality of sentencing in some states contributing to a burgeoning prison
    population,[54] as well as prison
    conditions such as overcrowding, inadequate physical and mental health services,
    including drug and alcohol rehabilitation and harm minimisation programs, and
    lack of access to education. Prisoners face limits on their right to
    vote[55] and in contact with family
    and the community (both physically and through publications). This affects their
    mental health and ability to get support through their sentence, and reduces
    their chance for re-integration into society. Rates of female imprisonment have
    also significantly increased in the past
    decade.[56]

D. Right to an adequate standard of living

  1. Homelessness and forced eviction: The Commission is concerned at
    rates of homelessness in
    Australia,[57] and at the particular
    vulnerability of young people, people with mental ill-health, Indigenous peoples
    and women due to their high levels of disadvantage and experiences of
    violence.[58]The Commission
    recommends that the Government provide comprehensive services to address the
    causes of homelessness, target strategies to address the growth in youth
    homelessness, ensure a right of access to crisis accommodation (and sufficient
    stock to enable this), ensure adequate legal protection from forced, unlawful or
    arbitrary evictions and ensure that the regulation of public spaces do not
    violate human rights.

  2. People in rural and remote communities: People living in some
    remote and rural areas in Australia face significant challenges in accessing
    services adequate to enjoy the rights to education and
    health.[59] For example, some
    communities have little access to essential support services relating to mental
    health, sexual assault[60],
    accommodation assistance, and alcohol and drug
    rehabilitation,[61] and there are
    limited education facilities in remote areas. The Commission recommends that
    governments take action to ensure equitable access to services in rural and
    remote communities, with a particular focus on health and education.

3 Key national priorities, initiatives, and
commitments

  1. The Government has committed to the development of National Action Plan
    on Human Rights: The Commission recommends that the Government agree to
    incorporate into the NAP all of the recommendations that it accepts through the
    Universal Periodic Review process; and ensure that the NAP on Human Rights is a
    forward looking document with clear indicators, benchmarks and timeframes and
    processes for monitoring.

  2. The Government has also committed to developing a National Action Plan on
    Social Inclusion: The Commission recommends that the Government adopt a human
    rights based approach to addressing social exclusion and marginalisation, and
    explicitly recognises the importance of human rights in the NAP on Social
    Inclusion.

  3. The Commission notes the commitment of the Government, through the
    Australian Human Rights Framework, to a significantly enhanced focus on human
    rights education. The Commission recommends that human rights be incorporated
    into the National Curriculum for secondary schools; the Government provide a
    comprehensive package of measures to address the Government’s commitments
    under the World Programme for Human Rights
    Education[62]; and the Government
    commit to a sustained focus on community education about human rights to improve
    understanding and awareness of rights across society.

  4. The Commission notes the positive contribution of Australia to human
    rights in the region through development assistance and cooperation. The
    Commission recommends that the Government ensure that its foreign affairs, trade
    and development assistance policies incorporate and promote human rights based
    approaches, and that the Government expand its support for the promotion of
    human rights in the Asia-Pacific region. The Commission further recommends that
    Australia’s extradition, mutual assistance and agency to agency assistance
    laws and policies be amended to ensure they are consistent with
    Australia’s commitment to the abolition of the death penalty in Australia
    and abroad.


Attachment 1 - References

[i]In larger freedom: towards development, security and human rights for all, Report of the Secretary-General, UN Doc:
A/59/2005, 21 March 2005, para 1, available online at: www.un.org/largerfreedom/.paras 113, 129-130.

[1] The Commission is also referred
to as the AHRC in this submission. The Commission is established and operates
under the Australian Human Rights Commission Act 1986 (Cth) and exercises
functions under the following legislation: Racial Discrimination Act 1975
(
Cth); Sex Discrimination Act 1983 (Cth); Disability
Discrimination Act 1992
(Cth); Age Discrimination Act 2005 (Cth) and Native Title Act 1993 (Cth).

The Commission has been accredited as an ‘A status’ national
human rights institution by the International Coordinating Committee of National
Human Rights Institutions, and operates in conformity with the ‘Principles Relating
to the Status and Functions of National Institutions for the Promotion and
Protection of Human Rights
’ in General Assembly Resolution 48/134,
1993.

Please note: The Commission was officially known as the Human Rights and
Equal Opportunity Commission (HREOC) until 2009. All references to documents by
HREOC should be read as documents of the Australian Human Rights Commission.

[2] The Australian Council of Human
Rights Agencies (ACHRA) is comprised of statutory human rights and
anti-discrimination commissions established at the state, territory and national
levels. The following members of ACHRA have endorsed this submission:
Anti-Discrimination Commission (Northern Territory), Anti-Discrimination
Commission (Queensland), Equal Opportunity Commission (South Australia), Equal
Opportunity Commission (Western Australia), Human Rights Commission (A.C.T),
Office of the Anti-Discrimination Commissioner (Tasmania), Victorian Equal
Opportunity & Human Rights Commission. The Anti-Discrimination Board of NSW
was also consulted who are in broad agreement with the principles espoused in
this submission.

[3] The Commission released a draft
of its submission in May 2010 for public comment. This was distributed to
state and territory equal opportunity commissions and Children commissioners; as
well as to non-government organisations and publicly through the
Commission’s internet list-serves and on our website. Approximately 50
submissions were received from organisations and individuals commenting on the
Commission’s draft submission.

[4] Australia is a party to the
International Covenant on Civil and Political Rights (ICCPR); International
Covenant on Economic, Social and Cultural Rights (ICESCR), International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD),
Convention on the Elimination of Discrimination Against Women (CEDAW),
Convention on the Rights of the Child (CRC), Convention Against Torture and
other Cruel, Inhuman or Degrading treatment or punishment (CAT), and Convention
on the Rights of Persons with Disabilities (CRPD).

Australia is not a party to the International Convention on the
Protection of the Rights of All Migrant Workers and members of their Families
(MWC), International
Convention for the Protection of All Persons from Enforced Disappearance
,
Optional Protocol to the ICESCR, or International Labour Organisation Convention
169 concerning Indigenous and Tribal Peoples in Independent Countries (ILO
169).

[5] National Human Rights
Consultation Report, Canberra 2009, p127, Available online at: http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReportDownloads#doc.
The Committee made 31 recommendations for reform to better protect human rights
in Australia, including through introducing a Human Rights Act to provide
comprehensive protection at the federal level. The Committee also found the
following (pp127-128):

Australia has agreed to ‘respect, protect and fulfil’ a range of
human rights at the international level, but the current legal and institutional
framework falls short of this commitment. The Committee notes the following
limitations associated with the existing mechanisms for protecting human rights
in Australia:

  • International human rights law. Australia has committed itself
    to a variety of obligations under international human rights law, but these
    obligations are enforceable in Australia only if implemented by domestic
    legislation. Although various mechanisms exist to hold Australia accountable at
    the international level, they are not legally binding.
  • The democratic system. Australia has strong democratic
    institutions, but they do not always ensure that human rights—in
    particular, minority rights—receive sufficient consideration.
  • The Australian Constitution. Australia’s Constitution was not designed to protect individual rights. It contains a few rights, but
    they are limited in scope and have been interpreted narrowly by the courts.
  • Legislative protections. Federal, state and territory
    legislation protects some human rights, but it can always be amended or
    suspended to limit or remove that protection. The legislative framework is
    inconsistent across jurisdictions and difficult to understand and apply.
  • Administrative law. Administrative law enables individuals to
    challenge government decisions and encourages standards of lawfulness, fairness,
    rationality and accountability. The remedies it offers are, however, limited,
    and there is no general onus on government to take human rights into account
    when making decisions.
  • The common law. The common law protects some human rights, but
    it cannot stop parliament passing legislation that abrogates human rights with
    clear and unambiguous language.
  • Independent oversight mechanisms. There are a number of
    oversight mechanisms—for example, the Australian Human Rights
    Commission—that can review government action. The powers of these bodies
    are, however, limited when it comes to human rights, and their recommendations
    are usually not enforceable.
  • Access to justice. Access to justice is an overarching problem
    in connection with the adequacy of existing protections. Individuals who lack
    the knowledge or means to make use of Australia’s framework of human
    rights protections will ultimately be unable to enforce their rights.

6 The United Nations treaty bodies charged with monitoring
implementation of the ICCPR, ICESCR, CRC and CAT have each expressed concern
that those treaties have not been adequately incorporated into Australia’s
legal system. See further: UN Human Rights Committee, Concluding
Observations: Australia
(2009), para 8; UN Committee on Economic, Social and
Cultural Rights, Concluding Observations: Australia (2009), para 11; UN
Committee on the Rights of the Child, Concluding Observations: Australia (2005), paras 9 - 10; UN Committee against Torture, Concluding
Observations: Australia
(2008), para 9.

At present, there is also no formal institutional process in Australia for
responding to and implementing the concluding observations of human rights
treaty committees, or to the recommendations of other special procedures. As
noted in paragraph 6, the Australian Government has recently established a Joint
Parliamentary Committee on Human Rights which could fulfil this role.

[7] The Australian Constitution
provides safeguards for the following individual rights and freedoms:

  • the right to compensation on just terms in the event of a compulsory
    acquisition of property by the Commonwealth (section 51(xxxi));
  • the right to trial by jury for a federal indictable offence (section
    80);
  • the right to challenge the lawfulness of decisions of the Australian
    Government in the High Court (section 75(v));
  • a prohibition on making federal laws that establish a religion, impose a
    religious observance or prohibit the free exercise of any religion (section
    116); and
  • a prohibition on making federal laws that discriminate against a person
    because of the state in which they live (section 117).

The High Court has found that a right of freedom of expression in
relation to public and political affairs is implied in the text of the
Constitution: Australian Capital Television Pty Ltd v Commonwealth (1992)
177 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR
520; Levy v Victoria (1997) 189 CLR 579. This right is directed at
ensuring that people are free to discover and debate matters which enable them
to exercise a free and informed choice as voters.

The High Court has rejected suggestions that other basic rights, like the
right to equality, are implied by the text of the Constitution. The High Court
has also not supported the proposition that, in cases of ambiguity, the
Constitution should be interpreted consistently with human rights: See, for
example, Roach v Electoral Commissioner (2007) 233 CLR 162, 224 - 225
(Heydon J) and the authorities cited therein.

[8] The UN Committee on the
Elimination of Racial Discrimination has expressed this concern on several
occasions. See further: UN Committee on the Elimination of Racial
Discrimination: Concluding observations: Australia (2005), para 9; UN
Committee on the Elimination of Racial Discrimination: Concluding
observations: Australia
(2000), paras 6-10.

A further concern is the limited protection of the right to freedom of
religion and belief. The Commission’s 1998 report, Article 18,
thoroughly reviewed the protection of the right to freedom of religion and
belief under Australian Commonwealth, State and Territory law. It found that the
Commonwealth Constitution does not provide a complete guarantee of protection
for the right to freedom of religion and belief. Section 116 restricts only the
legislative powers of the Commonwealth and falls far short of providing positive
protection to the rights of the individual to freedom of religion and belief.
The report also noted that:

Some Australians are protected from discrimination on the basis of religion
and belief by State and Territory laws but many others are not. Laws providing
protection from discrimination on the basis of religion and belief are patchwork
across Australia (p 105).

In a submission to the Commission for the UPR, the Australian
Bahá’í Community note that:

While members of our own community report only occasional and isolated
incidents of religious discrimination in Australia, we recognise that for some
other communities, such discrimination has become more frequent and widespread
in recent years, despite the changes in some State and Territory legislation
that have occurred in the past decade. Accordingly, we support the
Commission’s previous conclusion (in the Article 18 report) that “to
comply with international human rights commitments Australia should enact
federal legislation to make unlawful in Australia discrimination on the basis of
religion and belief” (p 105).

The Article 18 report is available online at: http://www.humanrights.gov.au/human_rights/religion/index.html.

In a submission to the Commission for the UPR, the Australian Christian Lobby
notes that: the Commission should bring to the attention of the United Nations
Human Rights Council’s Working Group on the UPR breaches of this
fundamental right (to freedom of thought, conscience and religion), and attempts
to stifle it, by state jurisdictions in particular.

[9] Australia has four federal
anti-discrimination laws, as identified in note 1 above. The particular grounds
of unlawful discrimination covered under federal anti-discrimination law are:
race, colour, descent or national or ethnic origin; sex; marital status;
pregnancy or potential pregnancy; family responsibilities; disability; people
with disabilities in possession of palliative or therapeutic devices or
auxiliary aids; people with disabilities accompanied by an interpreter, reader,
assistant or carer; a person with a disability accompanied by a guide dog or an
‘assistance animal’; and age. Also falling within the definition of
‘unlawful discrimination’ is: offensive behaviour based on racial
hatred; sexual harassment; harassment of people with disabilities; and
victimisation and several criminal offences relating to discrimination.

Federal human rights and anti-discrimination law provides for the Commission
to investigate and resolve complaints of discrimination and breaches of human
rights. Over the past five years the number of complaints the Commission has
received has increased by 81 percent.

Unlike equivalent legislation in Australia’s states and territories,
federal anti-discrimination laws do not provide enforceable protection against
discrimination on the basis of attributes such as religion, political beliefs,
sexual orientation/ preference, sexuality/transgender, trade union activities,
nationality, occupation, medical record and criminal record.

In 2009, the UN Human Rights Committee stated that it was ‘concerned
that the rights to equality and non-discrimination are not comprehensively
protected in Australia in federal law’ and recommended that Australia
‘adopt Federal legislation, covering all grounds and areas of
discrimination to provide comprehensive protection for the rights to equality
and discrimination’: UN Human Rights Committee, Concluding
Observations: Australia
(2009), para 12. Similar concerns have been raised
by the UN Committee on Economic, Social and Cultural Rights, which recommended
in 2009 that Australia ‘enact federal legislation to comprehensively
protect the rights to equality and non-discrimination on all the prohibited
grounds’: UN Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), para 14.

There are also gaps in the protections that are provided by the existing
federal anti-discrimination laws. For example, the Sex Discrimination Act falls
well short of achieving comprehensive protection in CEDAW. The protection
provided to men and women varies, and protection against discrimination on the
grounds of family responsibilities (being limited to direct discrimination that
results in dismissal from employment) is minimal when compared to other areas of
discrimination. Similarly, the Racial Discrimination Act does not provide
protection against discrimination and other unlawful conduct on the ground of
religion.

A number of practical obstacles further limit the effectiveness of current
federal anti-discrimination laws. For example, the various tests for direct
discrimination incorporate a requirement that an applicant establish less
favourable treatment compared with a hypothetical ‘comparator’. The
practical application of the comparator, however, has proved problematic due to
difficulties in constructing the same or similar circumstances for carrying out
the comparison. Practical difficulties also arise in relation to proving
indirect discrimination. Under the Disability Discrimination Act, for example,
applicants must establish that they have been required to comply with an
unreasonable requirement or condition with which they cannot comply, but with
which a substantially higher proportion of persons without their disability can
comply. This has raised difficulties and uncertainties where, for example, an
applicant can technically comply with the relevant requirement, but with
additional hardships not experienced by other persons without their
disability.

In addition, despite widely recognised difficulties in proving
discrimination, current federal laws generally require the applicant to carry
the onus of proof in relation to all elements of discrimination. This is despite
the reality that information relating to causation (such as the
respondent’s basis for treating the applicant in a particular way) is
typically within the control of the respondent, not the applicant.

Further, each of the laws establishes a proscriptive, negative-based
standard. Discriminatory conduct is prohibited, rather than
non-discriminatory or other positive conduct being required. Federal
anti-discrimination laws lack positive obligations to promote equality.

[10] The Commission notes,
however, that the Australian Capital Territory and Victoria have a Human Rights
Act that provides more comprehensive consideration of civil and political rights
than the other states and territories or at the federal level.

[11] The Racial Discrimination
Act
, Disability Discrimination Act and Sex Discrimination Act each provide for a statutory Commissioner to lead the work of the Australian
Human Rights Commission under these acts. The Age Discrimination Act
2005
does not provide for an Age Discrimination Commissioner, instead
conferring functions on the Commission generally.

At present, the positions of Race Discrimination Commissioner and Disability
Discrimination Commissioner are filled by one person. There is significant
community support for both positions to be funded and appointed on a full time
basis.

At present, the Sex Discrimination Commissioner has also been designated as
the commissioner responsible for age discrimination. There is also significant
community support for a fully funded and full time Age Discrimination
Commissioner.

[12] For further information on
the long term funding issues that the Commission has faced over the past decade
see: Australian Human Rights Commission, Submission to the Joint Committee of
Public Accounts and Audit Inquiry on the Effects of the ongoing Efficiency
Dividend on Smaller Public Sector Agencies, 29 July 2008, online at: http://www.humanrights.gov.au/legal/submissions/2008/20080729_efficiency_dividend.html.

[13] Compliance will be
considered in relation to the seven core human rights treaties to which
Australia is a party.

[14] The Australian
Government’s framework is available online at: http://www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_TheAustralianHumanRightsFramework.
The Framework responds to the National Human rights Consultation, held in
2009.

[15] The Commission has
incorporated its comments on the ‘Identification of achievements, best
practices, challenges, and limitations’ of human rights into this section
of the submission.

[16] See Aboriginal and Torres
Strait Islander Social Justice Commissioner, ‘A statistical overview of
Aboriginal and Torres Strait Islander peoples in Australia’, Appendix 2 in Social Justice Report 2008, at http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/app2.html.

[17] See Prime Minister, Closing the gap – Prime Minster’s Report 2010, Available
online at: http://proxy.paradise.aust:8080/ProgressMessages/closingthegap2010.doc?proxy=10.1.1.248&action=complete&index=45&id=23813340&filename=closingthegap2010.doc.

[18] The Commission notes that
the Australian Parliament has apologised for the practices of past forced
removal policies and the Australian Government has established a National
Healing Foundation to support Indigenous community initiatives for healing, to
address the impacts of removal.

[19] See; Committee on the
Elimination of Racial Discrimination, Concluding observations: Australia (2005), paras 16-18; See also Aboriginal and Torres Strait Islander Social
Justice Commissioner, Native Title Report 2005, Australian Human Rights
Commission, 2006.

[20] The Commission has welcomed
amendments to the legislation passed by parliament in June 2010, while also
noting ongoing concerns on some issues. See further: http://www.humanrights.gov.au/about/media/media_releases/2010/61_10.html and
http://www.humanrights.gov.au/legal/submissions/sj_submissions/2010_wel…

For an overview of the full package of measures introduced in 2007 see:
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007,
Chapter 3, online at: http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html.
The Special Rapporteur on the situation of human rights and fundamental freedoms
of indigenous people has also expressed concern that the NTER legislation is not
consistent with human rights: http://www2.ohchr.org/english/issues/indigenous/rapporteur/docs/ReportVisitAustralia.pdf.

[21] Australian Human Rights
Commission, Sexual harassment: Serious business Results of the 2008 Sexual
Harassment National Telephone Survey
(2008)

[22] Australian Bureau of
Statistics, Personal Safety, Australia, 2005 (Reissue), Catalogue No.
4906.0 (2006), p7.

[23] For further details, see
Australian Human Rights Commission, Gender equality: What matters to
Australian women and men – The Listening Tour Community Report
(2008):
Online at http://www.humanrights.gov.au/sex_discrimination/listeningtour/index.html.

[24] See S Kelly, Entering
Retirement: the Financial Aspects
(Paper for the Communicating the Gendered
Impact of Economic Policies: The Case of Women’s Retirement Incomes
Conference, Perth, 12 - 13 December 2006). See also: Australian Human Rights
Commission, Accumulation Poverty Women’s experiences of inequality over
the lifecycle: An issues paper examining the gender gap in retirement savings
(2009).

[25] The proportion of people 65
and over is likely to double between 2004 (13%) and 2051 (27%) and the
proportion of people 85 and over is likely to quadruple between 2004 (1.5%) and
2051(7%): Australian Bureau of Statistics, Population Projections,
Australia, 2004 to 2101
, Catalogue No.3222.0 (2006). Online at: www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/3222.0Main+Features12004%20to%202101?OpenDocument.

[26] For example, unpaid or
temporary work.

[27] In a submission to the
Commission for the UPR, the AIDS Council of New South Wales (ACON) note that
“the experiences of discrimination and violence have a significant impact
on the ability of the GLBT community to realise important human rights such as
the right to the highest attainable standard of physical and mental health, the
right to just and favourable conditions of work and the right to education. See
further: Pitts, M, Smith, A, Mitchell, A et. al., Private Lives: A
report on the health and wellbeing of GLBTI Australians
, Australian Research
Centre in Sex, health and Society, La Trobe University, 2006, p50.

[28] A number of submissions to
the Commission for the UPR expressed concern about discrimination against GLBTI
couples in recognising parental relationships. For example:

  • ACON noted that in New South Wales a ban remains in place on same-sex
    couples adopting, despite a NSW Parliamentary report recommending that this ban
    be lifted: see further, NSW Legislative Council Standing Committee on Law and
    Justice, Adoption by same-sex Couples, 2009.
  • The Gay and Lesbian Rights Lobby notes that the “Australian Capital
    Territory, Western Australia and Tasmania (in specific circumstances) are the
    only jurisdictions within Australia that permit same-sex couple adoption. With
    over 4,300 children living in same-sex families across Australia, disallowing
    access to adoption denies children the rights, benefits and entitlements
    conferred by legal parentage, such as access to a parent’s superannuation
    benefits or worker’s compensation if a parent is injured at
    work.”
  • The Gay and Lesbian Rights Lobby also note concerns about the lack of
    clarity in the law in relation to surrogacy.

[29] For further
detail on equality of marriage recognition, see the Commission’s
submission to an Australian Parliamentary Committee on this issue, available
online at: http://www.humanrights.gov.au/legal/submissions/2009/20090910_marriage_equality.html.

[30] In a submission to the
Commission for the UPR, Sex And Gender Education (SAGE (Australia) note that:

At least 1% of the population in some form has an intersex, sex and/or gender
diverse manifestation. There is much confusion in the public’s mind...
about the dividing line between gay, lesbian and bisexual (GLB) issues and those
of Inter-sex, Sex and/or Gender Diverse people (ISGD). SAGE categorically wishes
to emphasise that ISGD issues are not GLB associated. SAGE wishes the AHRC to
separate GLB issues from ISGD issues as one is mainly sexuality, the other is
mainly about sex and/or gender identity, which are different things that
requires different legal criteria.

[31] For further discussion of
these issues, see Human Rights and Equal Opportunity Commission, Stories of
discrimination experienced by the gay, lesbian, bisexual, transgender and
intersex community
(2007), at http://www.humanrights.gov.au/human_rights/gay_lesbian/stories.html;
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://www.humanrights.gov.au/genderdiversity/sex_files2009.html.

[32] See, for example, Kevin Rudd
MP, Prime Minister, Address to the National Disability Awards Ceremony, Great
Hall, Parliament House Canberra, 23 November 2009, at http://www.pm.gov.au/node/6349.

[33] See, for example, Human
Rights and Equal Opportunity Commission, Not for service: Experiences of
injustice and despair in mental health care in Australia
(2005). At http://www.humanrights.gov.au/disability_rights/notforservice/report/index.html.

[34] See C Evans, New
Directions in Detention – Restoring Integrity to Australia’s
Immigration System
(Speech delivered at the Centre for International and
Public Law Seminar, Australian National University, Canberra, 29 July 2008). At http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm.

[35] Under the Migration Act, it
is mandatory for any non-citizen in Australia (other than in an excised offshore
place) without a valid visa to be detained. These persons, called
‘unlawful non-citizens’, may only be released from detention if they
are granted a visa or removed from Australia. See Migration Act 1958 (Cth), ss 189 (1), 189(2), 196(1). Under sections 189(3) and 189 (4) of the
Migration Act, unlawful non-citizens in excised offshore places may be detained.
The current policy of the Australian Government is that all unauthorised boat
arrivals in excised offshore places will be subject to mandatory detention.

[36] For further details, see
Australian Human Rights Commission, Information provided to the OHCHR study
on challenges and best practices in the implementation of the international
framework for the protection of the rights of the child in the context of
migration
(2010), at http://www.humanrights.gov.au/legal/submissions/2010/201004_OHCHR_child_migration.html.

[37] Many people are held on very
remote Christmas Island. Increasingly, people are also being held in remote
locations such as Curtin detention centre. For further details, see Australian
Human Rights Commission, 2009 Immigration detention and offshore processing
on Christmas Island
(2009), at http://www.humanrights.gov.au/human_rights/immigration/idc2009_xmas_island.html.

[38] Instead they are processed
under a ‘non-statutory’ process. For further details, see Australian
Human Rights Commission, 2009 Immigration detention and offshore processing
on Christmas Island
(2009), above.

[39] See Minister for Immigration
and Citizenship, ‘Changes to Australia's Immigration Processing
System’ (Joint Media Release with Minister for Foreign Affairs and
Minister for Home Affairs, 9 April 2010). At http://www.minister.immi.gov.au/media/media-releases/2010/ce10029.htm.

[40] 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/index.html.

[41] See, for example, Human
Rights and Equal Opportunity Commission, Voices of Australia: 30 years of the
Racial Discrimination Act: 1975-2005
(2005). At http://www.humanrights.gov.au/racial_discrimination/voices/index.html.

[42] For information about
cyber-racism in Australia see: Communique from Cyber-racism summit, online at:
http://www.humanrights.gov.au/about/media/media_releases/2010/38_10.html . For
information about violence against international students see: Australia and New
Zealand Race Relations Roundtable, Communiqué: Human rights of
international students is a major issue, at: http://www.humanrights.gov.au/about/media/media_releases/2009/107_09.html and outcomes of research forum on international students: http://www.humanrights.gov.au/racial_discrimination/forum/20100412_racism_students.html

[43] See further: http://www.immi.gov.au/about/stakeholder-engagement/national/advisory/amac/#a.

[44] For an overview of these
laws as at 2008 see: http://www.cla.asn.au/Article/070604_Alford_Report.pdf.
In a submission to the Commission for the UPR, the Human Rights Law Resource
Centre notes the significant impact of counter-terrorism laws on particular
communities such as Somalis, Tamils, Kurds and Muslim people more generally.

[45] See Australian Human Rights
Commission, A Human Rights Guide to Australia’s Counter-Terrorism
Laws
, 2009, online at: http://www.humanrights.gov.au/legal/publications/counter_terrorism_laws.html.

[46] The Hon John Clarke QC, Report of the Clarke Inquiry into the Case of Dr Mohamed Haneef (November
2008). At: http://www.haneefcaseinquiry.gov.au/ (viewed 5 May 2010).

[47] The UN Human Rights
Committee and the Committee against Torture have both raised concerns that some
provisions of Australia’s counter-terrorism laws are incompatible with
fundamental rights. UN Human Rights Committee, Concluding Observations:
Australia
(2009), para 3 - 4. See also Special Rapporteur on the Promotion
and Protection of Human Rights and Fundamental Freedoms while Countering
Terrorism, Australia: Study on Human Rights Compliance while Countering
Terrorism
, UN Doc A/HRC/4/26/Add.3 (2006) at http://daccessdds.un.org/doc/UNDOC/GEN/G06/155/49/PDF/G0615549.pdf?OpenElement;
UN Committee against Torture, Concluding Observations: Australia (2008),
para 3.

The Law Council of Australia has also expressed concern at the enactment of
non-association provisions in criminal legislation. These provisions, modelled
on pre-existing provisions directed at terrorist organisations, seek to extend
the traditional boundaries of criminal liability to capture conduct which is not
linked to the commission or planned commission of any specific offence, but
which is alleged to facilitate criminal activity on a broader level.

The Law Council of Australia notes:

In shifting the focus of criminal liability from a person’s conduct to
their associations, offences of this type unduly burden freedom of association
and are likely to have a disproportionately harsh effect on certain sections of
the population who, simply because of their familial or community connections,
may be exposed to the risk of criminal sanction.

These non-association provisions, recently incorporated into State and
Territory criminal laws and the Commonwealth Criminal Code, have been justified
by the need to address serious and organised crime, and in some jurisdictions,
specifically directed at motorcycle gangs. Often the non-association provisions
have been accompanied by powers for law enforcement officers or the courts to
make ‘control orders’ restricting the liberty of persons who are
members of or associated with criminal organisations.

[48] A submission to the
Commission for the UPR notes that “the Australian Government refuses to
independently investigate the torture and ill treatment of both David Hicks and
Mamdouh Habib whilst rendered and illegally detained in Guantanamo Bay. David
Hicks is still living under a suspended sentence due to an unlawful conviction
(the charges were retrospective and not even legitimate war crimes, not to
mention the plea was signed under duress). David Hicks was placed on a gag order
and provisions that are outlined in the plea agreement interfere directly with
his freedom of expression. He was placed on a control order which severely
impinged on his human rights (freedom of expression, movement, association
etc).” It urges that “the Australian Government undertake an
independent, thorough and binding investigation into the allegations of torture
and ill treatment made by the Australians rendered and illegally detained at
Guantanamo Bay, the Government’s involvement in the treatment, and the
subsequent legality of the conviction of David Hicks and their involvement in
the process.”

[49] 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;
and Women With Disabilities Australia, Forgotten Sisters: A Global Review of
Violence against Women with Disabilities
(2007).

[50] In a submission to the
Commission for the UPR, Sex And Gender Education (SAGE (Australia) notes that
violence, bullying and harassment is indeed one of the largest problems facing
people who present in public as intersex, sex and/or gender diverse. Sex and/or
gender diverse people have one of the highest levels of unemployment in
Australian society.

[51] In a submission to the
Commission on the UPR, the Law Council of Australia notes that access to justice
is an issue for all Australians with ‘the legal assistance sector
remaining grossly underfunded’:

The Law Council is of the view that the significant shortfall in funding for
the legal assistance sector has placed in jeopardy the right for all Australians
to access legal advice and services, regardless of their means. When
individuals lack the knowledge or the means to identify and exercise existing
legal protections, they will ultimately be unable to enforce their human
rights.

This has implications for the realisation of each of the specific human
rights Australia is obligated to protect and is relevant to each of the key
issues raised by the AHRC in its (submission).

For example, access to legal services is essential to reducing the
disproportionate rates of Indigenous people in care and protection, juvenile
detention and adult prisons. Ensuring adequate access to legal advice and
representation is a central component of ensuring Australia’s immigration
detention policies adhere to international law.

Ensuring access to legal services in regional and remote communities in
Australia is a particular focus of the Law Council’s advocacy in this
area. These communities often experience inadequate public services and require
particular attention from Governments to ensure that they have access to the
legal assistance necessary to identify and enforce their human rights.

[52] In a submission to the
Commission, the Women’s Legal Services of New South Wales note that a
range of recent government reviews have found that the family law system does
not effectively respond to issues of family violence and recommends changes to
improve the system and the law.

[53] There have been positive
developments in addressing these issues, such as recent changes to the People
Trafficking Visa Framework
and the Support for Victims of People
Trafficking Program
but the Commission is concerned that trafficking in
person and related offences do not comprehensively reflect Australia’s
international legal obligations in this area, or that there are always effective
remedies available.

See further: Sex Discrimination Commissioner, Elizabeth Broderick,
‘For trafficked people, Government changes put human rights first’,
media release (17 June 2009), http://www.humanrights.gov.au/about/media/media_releases/2009/50_09.html (viewed 21 April 2010).

The Commission also acknowledges the Government’s 2008 publication of
‘Guidelines for NGOs working with trafficked people’ and an
accompanying two-page ‘Know Your Rights’ fact sheet. See: http://www.humanrights.gov.au/sex_discrimination/publication/traffic_NGO/index.html (viewed 19 April 2010).

The Commission is only aware of one award of compensation to a person who was
trafficked to Australia, see: Natalie Craig, ‘Sex slave victim wins abuse
claim – EXCLUSIVE - ‘It still hurts to talk about it ... I have been
depressed’, The Age, 29 May 2007.

For discussion of another effort to obtain compensation in a trafficking case
see Julie Lewis, ‘Out of the Shadows’, Law Society Journal 17,
February 2007; and E Broderick and B Byrnes, Beyond Wei Tang: Do
Australia’s human trafficking laws fully reflect Australia’s
international human rights obligations?
(Speech delivered at Workshop on
Legal and Criminal Justice Responses Trafficking in Persons in Australia:
Obstacles, Opportunities and Best Practice, Monash University, 9 November 2009).

There have been limited legal actions to address trafficking in Australia.
See further: A Scholenhardt, G Beirne and T Corsbie, ‘Human Trafficking
and Sexual Servitude in Australia’ (2009), 32(1) UNSW Law Journal,
27.

[54] The WA Equal Opportunity
Commission notes that the state of Western Australia has a burgeoning prison
population as a result of (a) tougher penalties (b) withdrawal of automatic
parole with a dramatic escalation in the numbers of prisoners refused parole and
(c) mandatory sentencing. State laws currently see significant numbers of
people imprisoned for traffic offences ( particularly driving without a licence)
which disproportionately affects Aboriginal people in remote communities (where
there are insufficient number of people qualified to teach others to drive or
supervise log book hours so that driving unlicensed is endemic); and failure to
pay fines. This contributes to a situation where rates of serious crime are
decreasing but prison numbers are ever increasing. This is also a particularly
disturbing matter in relation to juveniles where between 70-80% of juveniles
held in custody ( many on remand ) are indigenous.

[55] Persons serving sentences of
imprisonment of three years or more are not eligible to vote in federal
elections. This restriction on the right to vote may have a disproportionate
impact on groups who are overrepresented in the prison population, such as
Indigenous peoples, people with a mental illness and people with an intellectual
disability.

[56] A very high proportion of
women prisoners have previously been victims of violence. Women prisoners also
face distinct human rights issues such as the impact of strip searches,
especially for women who have suffered sexual abuse, and difficulties in
maintaining family relationships.

The Commission notes that in paragraph 2 of this submission it recommends
that Australia expedite ratifying the Optional Protocol to CAT and introduce a
national preventive mechanism for places of detention. This is of relevance to
the issues concerning prison conditions raised here. In a submission to the
Commission for the UPR, Sisters Inside (a national organisation representing
female prisoners) states that:

Sisters Inside particularly strongly supports the recommendation on page 1
that Australia should expedite ratification of the Optional Protocol to CAT and
the establishment of a National Preventive Mechanism for places of detention.
We would prefer some mention of the particular importance of regular,
unannounced, visits to women’s prisons, and examination of specific human
rights issues for women prisoners related to CAT including strip searching, use
of isolation cells, use of instruments of restraint, and presence of male
officers in women’s prisons (particularly their role in undertaking strip
searching and observing women in isolation cells).

[57] Every night more than
100,000 people in Australia are homeless, with one in every two people
requesting accommodation from a homeless service turned away: Australian
Institute of Health and Welfare, Demand for SAAP accommodation by homeless
people 2007-2008 Australia
(2009). At http://www.aihw.gov.au/publications/index.cfm/title/10772.

More than 40% of people who are homeless in Australia are younger than 25:
Australian Bureau of Statistics, Counting the Homeless 2006 (2008), p ix.
At http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/57393A13387C425DCA2574B900162DF0/$File/20500-2008Reissue.pdf.
See also Human Rights and Equal Opportunity Commission, Our Homeless
Children: Report of the National Inquiry into Homeless Children
(1989).

[58] For government commitments
to address homelessness see: Australian Government, The Road Home: The
Australian Government White Paper on homelessness,
December 2008, online at: http://www.fahcsia.gov.au/sa/housing/progserv/homelessness/whitepaper/Pages/default.aspx.
For further discussion about homelessness as a human rights issue, see Human
Rights and Equal Opportunity Commission, Submission to the Green Paper on
Homelessness - Which Way Home?
(4 July 2008) at http://www.humanrights.gov.au/legal/submissions/2008/20080704_homelessness.html;
Human Rights and Equal Opportunity Commission, Homelessness is a Human Rights
Issue
(2008) at http://www.humanrights.gov.au/human_rights/housing/homelessness_2008.html.

[59] The national human rights
consultation in 2009 found that ‘in the case of health and other basic
services, the gap between metropolitan and rural and remote areas is a reality
for many who live outside our cities’: National Human Rights Consultation
Report, page 15. See further pp32-33. See also: Human Rights and Equal
Opportunity Commission, Emerging themes: Ruraland remote education inquiry,
2000, online at: http://www.humanrights.gov.au/human_rights/rural_education/briefing/report/index.html;
and Human Rights and Equal Opportunity Commission, Bush
Talks: Report of Community Consultations in Regional, Rural and Remote
Australia
, 1999, online at:
http://www.humanrights.gov.au/human_rights/rural_australians/bushtalks/…

[60] The Women’s Legal
Services of New South Wales note that there is a lack of qualified practitioners
for sexual assault services in western NSW (such as Bourke, Brewarrina and
Walgett) with sexual assault victims required to travel hundreds of kilometres
to centres such as Orange, Dubbo and Bathurst for forensic examinations after a
crime has been committed. Victims of sexual assaults are not able to shower,
brush their teeth or change their clothes prior to being examined, and often
feel uncomfortable travelling long distances with male police officers for such
investigations. This can discourage people from participating in the forensic
process which then has implications for the rates of charging and conviction of
sexual assaults.

[61] See, for example, Human
Rights and Equal Opportunity Commission, Bush Talks: Report
of Community Consultations in Regional, Rural and Remote Australia
, (1999). At http://www.humanrights.gov.au/pdf/human_rights/bush_talks.pdf.

[62] The first phase of the World
Programme focuses on primary and secondary level schooling.


Attachment 2 – Recommendations by the Australian
Human Rights Commission for Australia’s UPR appearance

2. Background and framework for promotion and
protection of human rights

A. Scope of international obligations

  1. The Commission recommends that the Government:

    • ratify the Optional Protocol to ICESCR;
    • expedite ratification of the Optional Protocol to CAT and the establishment
      of a National Preventive Mechanism for places of detention;
    • give consideration through the parliamentary committee process to ratifying
      ILO Convention 169 and the Convention on Migrant Workers.

B. National framework

  1. The Commission recommends that the Australian Government fully
    incorporate into Australian law its human rights obligations, including through
    the adoption of a federal Human Rights Act.

  2. The Commission further recommends that a National Children’s
    Commissioner be established to monitor compliance with the CRC.

3. Promotion and protection of human rights on the
ground

A. Equality before the law and non-discrimination

Aboriginal and Torres Strait Islander peoples

  1. The Commission recommends that the Government ensure the full
    participation of Indigenous peoples in decision making that affects them,
    including through developing measures to implement the Declaration on the Rights
    of Indigenous Peoples, and also commit to specific targets and timelines for
    reducing the disproportionate rates of Indigenous peoples in care and
    protection, juvenile detention and adult prisons, including through a greater
    focus on preventative measures (such as justice reinvestment strategies) and on
    supporting women and their families, and victims of violence and crime.

  2. The Commission recommends that:

    • the Government take steps to recognise Aboriginal and Torres Strait Islander
      peoples in the Australian Constitution;

    • remove the discriminatory section 25 of the Constitution and replace it with
      a clause guaranteeing equality before the law;

    • reform the Native Title Act to address measures that have been found
      to be racially discriminatory;

    • provide reparations to Indigenous communities for harm resulting from past
      child removal practices; and

    • take measures to protect and promote Indigenous cultural and intellectual
      property, connection to traditional land through homelands and outstations, as
      well as the use of increasingly threatened languages, including through support
      for bilingual education programs.

  3. The Commission recommends that the Northern Territory Emergency
    Response (or intervention) be conducted in a manner that is fully consistent
    with Australia’s human rights obligations and be rigorously monitored.

Gender equality

  1. The Commission recommends that:

    • the Government implement measures to improve the balance between paid work
      and family and caring responsibilities;
    • adopt measures to close the gender gap in pay, and explore options to
      recognise and reward unpaid caring work within superannuation and pension
      schemes to protect women’s economic security;
    • promote and strengthen the representation of women in leadership and
      management roles; and
    • strengthen gender equality laws and monitoring processes, including relevant
      enforcement and investigation powers.
Older persons
  1. The Commission recommends that the ADA be strengthened to better protect
    older persons from age discrimination, including by narrowing the broad range of
    exemptions which currently exist and by establishing and funding an Age
    Discrimination Commissioner at the AHRC.

People who are lesbian, gay or bisexual (LGB)
  1. The Commission recommends that sexuality be included as a ground of
    discrimination federally and that the Government take all possible steps to
    enable equal recognition of same-sex marriage.

People who are inter-sex or sex and/or gender diverse
  1. The Commission recommends that sex or gender diversity be included
    as grounds of discrimination in federal laws, and that the Sex Files report be implemented.

People with disability

  1. The Commission recommends that the National Disability Strategy be
    integrated with the National Action Plan on Human Rights, including with
    benchmarks, timelines and monitoring processes.

B. Migrants, refugees and asylum seekers

Mandatory detention of asylum seekers

  1. The Commission recommends that:

    • the Government lift the suspension of processing of Afghani and Sri Lankan
      asylum seekers;
    • amend the Migration Act so that detention occurs only when necessary, only
      for a minimal period, and where it is a reasonable and proportionate means of
      achieving a legitimate aim, and with decisions to detain people being subject to
      prompt review by a court;
    • implement the outstanding recommendations of A last resort?, the
      report of the National Inquiry into Children in Immigration Detention; and
    • cease holding people in immigration detention on Christmas Island and repeal
      the provisions of the Migration Act relating to ‘excised offshore
      places’.
People from culturally and linguistically diverse
backgrounds

  1. The Commission recommends that the Government renew its commitment to
    multiculturalism by implementing and funding the recommendations of the AMAC,
    and continue to support programs to build resilience and social inclusion of
    vulnerable communities. The Commission further recommends that a full time Race
    Discrimination Commissioner be funded and appointed to the Commission.

C. Right to life, liberty and security of the person

Counter-terrorism laws

  1. The Commission recommends that all counter-terrorism laws be subject to
    rigorous monitoring and be amended to ensure they are consistent with
    Australia’s human rights obligations.

Violence

  1. The Commission recommends that the Government ensure adequate and
    sustainable funding and independent monitoring of the national plan to reduce
    violence against women and children; and that there be increased attention to
    the prevalence of violence, bullying and harassment in our community,
    particularly in relation to children, the elderly, people with disability,
    Indigenous peoples, people from culturally and linguistically diverse
    communities, and people who are gay, lesbian or bisexual, and people who are
    intersex and sex and/or gender diverse. The Commission also recommends improved
    access to legal services for women and further reform of family law to better
    protect the safety of women and children.

Trafficking

  1. The Commission recommends that Australian laws on trafficking and related
    offences be reviewed and that the Government do more to ensure victims can
    access effective remedies.

D. Right to an adequate standard of living

Housing and homelessness

  1. The Commission recommends that the Government provide comprehensive
    services to address the causes of homelessness, target strategies to address the
    growth in youth homelessness, ensure a right of access to crisis accommodation
    (and sufficient stock to enable this), ensure adequate legal protection from
    forced, unlawful or arbitrary evictions and ensure that the regulation of public
    spaces do not violate human rights.

People in rural and remote communities

  1. The Commission recommends that governments take action to ensure
    equitable access to services in rural and remote communities, with a particular
    focus on health and education.

4. Key national priorities, initiatives, and
commitments

  1. The Commission recommends that the Government:

    • agree to incorporate into the NAP all of the recommendations that it accepts
      through the Universal Periodic Review process; and

    • ensure that the NAP on Human Rights is a forward looking document with clear
      indicators, benchmarks and timeframes and processes for monitoring.

  2. The Commission recommends that the Government adopt a human
    rights based approach to addressing social exclusion and marginalisation, and
    explicitly recognises the importance of human rights in the NAP on Social
    Inclusion.

  3. The Commission recommends that:

    • human rights be incorporated into the National Curriculum for secondary
      schools;

    • the Government provide a comprehensive package of measures in primary and
      secondary schools to address the Government’s commitments under the first
      phase of the World Programme for Human Rights Education; and

    • the Government commit to a sustained focus on community education about
      human rights to ensure improved understanding and awareness of human rights
      across society.

  4. The Commission recommends that the Government ensure that its
    foreign affairs, trade and development assistance policies incorporate and
    promote human rights based approaches, and that the Government expand its
    support for the promotion of human rights in the Asia-Pacific region.