Skip to main content

Search

Comments by the Australian Human Rights Commission to the United Nations Human Rights Committee on issues relevant to Australia’s fifth periodic report under the ICCPR (2008)

Legal Legal
Friday 14 December, 2012

Comments by the Australian Human Rights Commission to the United Nations Human Rights Committee on issues relevant to Australia’s fifth periodic report under the ICCPR

30 September 2008


Table
of
Contents


Introduction

  1. The Australian Human Rights and Commission (the Commission) provides these
    comments to the United Nations Human Rights Committee (the Committee) in
    response to the Committee’s request for information relevant to
    Australia’s fifth periodic report under the International Covenant on
    Civil and Political Rights
    (ICCPR).[1]

  2. The Commission understands that this information will be used to prepare a
    list of issues for the Committee to raise when it considers Australia’s
    fifth report under the ICCPR in 2009.

Summary

  1. In these comments, the Commission aims to provide the Committee with
    information on a number of key issues that the Commission believes may be
    relevant to the Committee in considering Australia’s implementation of the
    ICCPR. The Commission does not intend to provide a complete assessment of
    Australia’s compliance with the ICCPR.

  2. The Commission’s comments respond to Australia’s Common Core
    Document containing the fifth periodic report under ICCPR for the years
    1997-2006 (Common Core Document).[2] Where possible, they include references to relevant sections of the Common Core
    Document and to provisions of the ICCPR. They also provide updated information
    on particular issues where relevant.

  3. The Commission’s comments also reiterate some of its previous comments
    on a draft of the Common Core Document, which were provided to the Australian
    Government in February 2007.

  4. As expressed to the Australian Government in 2007, the Commission believes
    that the Common Core Document provides an incomplete picture of human rights
    compliance in Australia. In particular, the Common Core Document does not
    acknowledge the limitations of the current legal framework for human rights
    protection and fails to identify and explain significant human rights
    issues.

1 Legal framework for
human rights protection

  1. The Commission notes that under Australian law, a treaty only becomes a
    source of individual rights and obligations when it is directly incorporated by
    legislation. The ICCPR has not been fully incorporated into Australian law by
    legislation.

1.1 Australian
Charter of Rights

  1. Contrary to article 2 of the ICCPR, Australia’s current governance
    system does not adequately protect ICCPR rights. Many of the international human
    rights standards agreed to by the Australian Government, including the ICCPR,
    have not been fully incorporated into Australian law. Individuals who experience
    human rights violations are often left without legal remedies.

  2. The need for reform is highlighted by numerous examples of human rights
    breaches, for example:

    • the mandatory detention of unauthorised arrivals, including children

    • the removal of Aboriginal and Torres Strait Islander children from their
      parents

    • discrimination against same-sex couples and their children contained within
      Commonwealth laws.

  3. The Australian Government has stated its intention to initiate a public
    inquiry about the best way to protect human rights and freedoms in Australia.
    The Commission strongly supports the establishment of an independent and
    inclusive national inquiry and public consultation process. The process
    should include community level consultations accessible by all Australians, in
    particular those who are isolated or disadvantaged.

  4. The Commission believes that a federal charter of rights created in
    consultation with the Australian community could foster a human rights culture
    in Australian government and society by:

    • making human rights an integral part of law-making and policy-setting
      processes

    • requiring Parliament to consider whether laws comply with human rights

    • enabling courts to interpret laws consistently with human rights where
      possible, and to identify laws which do not comply with human rights

    • providing accessible, appropriate and enforceable remedies for human rights
      breaches.

  5. A federal charter of rights should be based on the needs and concerns of all
    Australians, and should fill the gaps in Australia’s current system of
    human rights protection.

1.2 Functions of the
Australian Human Rights Commission

  1. The Common Core Document outlines the Commission’s statutory
    functions, but it does not acknowledge the limitations of the Commission’s
    powers.[3]

  2. For example, under Part II of the Human Rights and Equal Opportunity Act
    1986
    (Cth) (HREOC Act), the Commission can inquire into:

    • complaints alleging that an act or practice by or on behalf of the
      Commonwealth or an authority of the Commonwealth is inconsistent with any
      ‘human right’ (defined by section 3 of the HREOC Act to include
      rights under the ICCPR)

    • complaints alleging discrimination in employment on a number of grounds
      including religion, political opinion, medical record, criminal record, marital
      status, sexual preference, or trade union activity. These complaints are
      commonly called ‘ILO 111 complaints’ because the relevant provisions
      of the HREOC Act implement, in part, Australia's obligations under the Discrimination (Employment and Occupation) Convention 1958.

  3. Where the Commission finds a breach of human rights or ILO 111
    discrimination, the Commission is empowered to make recommendations, such as for
    payment of compensation. However, these recommendations are not
    enforceable.[4]

  4. These limitations have been discussed by the UN Human Rights Committee in
    several communications, particularly in relation to whether this process
    constitutes an effective remedy in the context of the exhaustion of local
    remedies for making a communication under the Optional Protocol to the
    ICCPR.[5]

2 Protection against
discrimination

2.1 Gender equality
and the right to non-discrimination

(a) Gender
equality
  1. The Commission has recently expressed a number of concerns about
    women’s equality before the law in
    Australia.[6] In particular, the
    Commission is concerned about the limited ability of the Sex Discrimination
    Act 1984
    (Cth) (Sex Discrimination Act) to achieve substantive gender
    equality in a number of areas of public and private
    life.[7] The Sex Discrimination Act
    does not fully implement Australia’s international human rights
    obligations, particularly under the Convention on the Elimination of all
    forms of Discrimination against Women
    (CEDAW).

  2. The Australian Government is currently conducting an inquiry into the
    effectiveness of the Sex Discrimination Act in eliminating discrimination and
    promoting gender equality.

  3. Recent work conducted by the Sex Discrimination Commissioner has revealed a
    number of impediments to women’s full and equal participation in the
    workforce, including: ongoing direct and indirect discrimination based on sex,
    pregnancy and family responsibilities; pay inequity; and limited flexible work
    arrangement and other family-friendly
    policies.[8]

  4. The Commission has also expressed concern about women’s ongoing
    experiences of sexual harassment and violence as key markers of gender
    inequality.[9]

(b) Paid maternity
leave
  1. Australia remains one of only two OECD countries without a paid maternity
    leave scheme as required by article 11(2)(b) of
    CEDAW.[10] While paid maternity
    leave is provided for public sector employees and some private sector employees,
    the majority of mothers in Australia are unable to access this workplace
    right.

  2. The Commission has recently reiterated its previous recommendation for the
    immediate introduction of a baseline minimum entitlement to paid maternity leave
    and recommended progressively moving towards a more comprehensive scheme in line
    with comparable countries.[11]

  3. An independent inquiry by the Productivity Commission into paid maternity,
    paternity and parental leave is currently underway. An interim report was
    released on 29 September 2008 recommending a preferred model of paid parental
    leave for Australia. In essence, the Productivity Commission recommended a
    federal government-funded universal scheme of 18 weeks paid leave for mothers
    and 2 weeks for fathers or supporting parents (in same sex relationships). A
    final report will be released in February 2009, following which the federal
    government will respond.

(c) Balancing work and family
  1. The Commission has raised the need for greater
    support for men and women balancing work and family responsibilities with the
    Australian Government consistently over the last three
    years.[12]

  2. The Commission is concerned that the new National Employment Standards,
    established as part of the Australian Government’s new workplace relations
    framework, provide inadequate protection for workers with family
    responsibilities. The new right to request flexible working arrangements under
    the National Employment Standards is limited to workers with children under
    school age and does not apply to workers unless they have completed 12 months of
    continuous service. These limitations will have a disproportionate impact on
    women with family responsibilities.

  3. The Commission has also expressed concern that the family responsibilities
    provisions of the Sex Discrimination Act provide only limited coverage
    for employees experiencing this form of discrimination. Currently, protection
    against discrimination on the grounds of family responsibilities is limited to
    situations of direct discrimination and dismissal from
    employment.[13]

2.2 Age
Discrimination Act

  1. As indicated by the Common Core Document, the Australian Government has
    introduced the Age Discrimination Act 2004 (Cth) (Age
    Discrimination Act), which prohibits age discrimination in many areas of public
    life.[14] The Commission has raised
    concerns with the federal government in relation to the following aspects of the
    Act.[15]
(a) The dominant reason
test
  1. The Age Discrimination Act provides that where an act is done for two or
    more reasons, that act will only be discriminatory if the person’s age was
    the ‘dominant reason’ for doing the
    act.[16] The introduction of this
    dominant reason test represents a departure from the position in other federal
    discrimination laws.

  2. The dominant reason test was opposed by the Commission when the legislation
    was before Parliament in 2003.[17] The Commission remains concerned that the test will make it harder for people to
    make successful complaints of discrimination on the basis of age, and may lead
    to considerable legal complexity. The dominant reason test was removed from the Race Discrimination Act 1975 (Cth) in 1990 because of concerns about its
    practical application.[18] The
    government has indicated that it may review this requirement with a view to
    removing the dominant reason test.

(b) Protections for
relatives and associates
  1. The Age Discrimination Act does not prohibit discrimination on the basis of
    the age of a person’s relative or associate. The need to extend protection
    against discrimination to relatives and carers of older people is an
    increasingly important issue given Australia's ageing population and the large
    number of people, particularly women, providing informal care to older
    relatives. The Commission supports extension of the Act’s coverage to
    include relatives and associates of older people.
(c) Removal of
exemptions
  1. The Commission considers that the breadth and range of exemptions provided
    in the Age Discrimination Act are problematic and potentially undermine the
    object of the Act to promote attitudinal change and eliminate age
    discrimination. The Commission considers that the exemptions to the Act should
    be reviewed.

2.3 Race
Discrimination Act and the Northern Territory Emergency Response

  1. The Commission notes with concern that the application of the Race
    Discrimination Act 1975
    (Cth) (Race Discrimination Act) has been
    suspended in relation to the Northern Territory Emergency Response (NTER), an
    intervention strategy introduced by the Australian Government in 2007 to protect
    Aboriginal children in the Northern Territory from sexual abuse and family
    violence.[19]

  2. The legislation enacted for the NTER declares itself, and any acts done
    pursuant to it, to be a special measure for the purposes of the Race
    Discrimination Act and exempt from the operation of Part II of the Race
    Discrimination Act. It also declares that, where relevant, it is exempt from
    Northern Territory and Queensland anti-discrimination
    legislation.[20]

  3. The Social Justice Report 2007 assessed the NTER’s compliance
    with Australia’s human rights obligations and found that:

    • the Government did have an obligation to promote and protect the right of
      Indigenous peoples to be free from family violence and child abuse.

    • the NTER legislation is inappropriately classified as a ‘special
      measure’ under the Race Discrimination Act because of the negative impacts
      of some of the measures on Indigenous people and the absence of adequate
      consultation or consent by Indigenous peoples to the measures.

    • the NTER legislation contains a number of provisions that are racially
      discriminatory.

    • some provisions raised concerns for the compliance with human rights
      obligations (e.g. the lack of access to review of social security matters and
      the compulsory acquisition of land without just
      compensation).[21]

  4. In accordance with the ICCPR, the promotion and protection of one right,
    namely freedom from violence and abuse, cannot be undertaken in a discriminatory
    manner, nor can it be at the expense of other rights, including the right to
    procedural fairness and an effective remedy, equality before the law and the
    right to participation.

  5. The Social Justice Report 2007 also found that, despite being
    entitled a ‘national emergency’, the NTER does not meet the
    requirements of a ‘public emergency’ as articulated in article 4 of
    the ICCPR. Further, the extent of the derogation allowed for in article 4 is
    limited. The NTER is not a situation that justifies introducing measures that
    place restrictions on the rights of Indigenous people, such as overriding the
    principles of non-discrimination or safeguards for procedural fairness.

  6. The ease with which the obligations under the Race Discrimination Act can be
    set aside highlights the weak status of protections against race discrimination
    in the Australian legal system. Underlying this weakness is the absence of any
    constitutional protection against race discrimination and the absence of a
    federal charter of rights. The Committee on the Elimination of Racial
    Discrimination has previously noted its concern about the absence of any
    entrenched guarantee against race discrimination that would override the law of
    the Commonwealth.[22]

  7. The NTER is currently under review and the Commission has recommended a ten
    point plan be implemented to address the lack of compliance of the NTER with
    Australia’s human rights obligations. The ten point plan sets out how to:

    • remove formal discrimination under the NTER legislation

    • ensure that schemes for income management and alcohol control are undertaken
      in a manner that is consistent with the Race Discrimination Act and that qualify
      as a ‘special measure’

    • transition from a crisis or emergency approach to a community development
      approach through ensuring participatory processes, the creation of community
      development plans and rigorous participatory based monitoring and reviews.

2.4 Religious
discrimination and vilification

  1. Federal anti-discrimination law does not make it unlawful to discriminate
    against or vilify a person on the basis of religion or belief. While such laws
    exist in some states and territories, the Commission believes that the overall
    coverage of law is inadequate to protect the right to manifest religion and
    belief. For example, community consultations and research conducted by the
    Commission on the right to freedom of religion and belief heard that the law
    provides inadequate protection is regarding the right to manifest Indigenous
    beliefs, and religious beliefs concerning autopsies and medical procedures such
    as blood transfusions.[23]

  2. These consultations found that discrimination and vilification on the basis
    of religion and belief discourages participation in the community and may
    infringe the right to freedom of religion and belief.

  3. In 2003, the Commission conducted a national research and consultation
    project called Ismaع – Listen on eliminating prejudice
    against Arab and Muslim Australians. During consultations, participants said
    that those most at risk of experiencing prejudice were people who are readily
    identifiable as Muslim because of their dress, physical appearance or name,
    particularly Muslim women who wear the hijab. Arab and Muslim youth felt they
    were particularly at risk of harassment. This has led to feelings of
    frustration, alienation, loss of confidence and loss of trust in
    authority.[24]

  4. Discrimination, vilification and abuse have had severe social and personal
    impacts on the ability of some sectors of the Muslim communities in Australia to
    participate in public life.

  5. The Commission considers that a federal law making discrimination and
    vilification on the ground of religion or belief unlawful should be introduced,
    in accordance with Australia’s obligations under articles 18 and 20(2) of
    the ICCPR.[25] It should be
    acknowledged that while religious vilification or discrimination is not unlawful
    at a federal level, most states and territories provide at least some degree of
    protection against religious
    discrimination.[26]

2.5 Discrimination on
the basis of transexuality, gender identity, gender history or sexuality

  1. While there is no federal law prohibiting discrimination on the ground of
    sexuality or gender diversity, all states and territories have
    anti-discrimination laws that prohibit discrimination on the basis of
    transsexuality, gender identity, gender history or sexuality.

  2. However, the Commission is concerned that the definitions currently used in
    various discrimination laws do not cover all people who are sex and gender
    diverse. Many state discrimination laws only protect people who have undergone
    surgery and therefore do not cover the majority of people in the sex and gender
    diverse community. Further, while some laws do protect intersex people who
    identify as either male or female, none protect intersex people who do not
    present as either male or female and are
    intergender.[27]

3 Counter terrorism
legislation

  1. As discussed in the Common Core Document, since the terrorist attacks in the
    United States on September 11 2001, the Australian Government has introduced
    over 40 new counter terrorism
    laws.[28] The Commission has raised
    concerns with the federal government that a number of the new laws may breach,
    or allow for the breach of, Australia’s human rights obligations. The
    Commission wishes to draw attention to the following systemic
    issues.

3.1 Expansion of
executive power

  1. Despite international recognition of the vital role of an independent and
    impartial judiciary in overseeing the application of counter terrorism laws,
    counter terrorism powers in Australia tend to be located in the executive,
    rather than the judicial branch, of government.

  2. The Commission is concerned that this expansion of executive power has not
    been accompanied by adequate safeguards to check that the power is exercised in
    a way that is proportionate and necessary in the particular circumstances.

  3. In the Commission’s view, in order to discharge Australia’s
    obligations under the ICCPR, decision making powers must be subject to judicial
    review, to check the legal validity of the decision, and merits review, to
    properly investigate the facts on which the decision was based. Such safeguards
    are particularly important in the Australian context, where there is no federal
    charter of rights to protect ICCPR rights.

3.2 Independent
review of counter terrorism laws

  1. Independent review of counter terrorism laws in Australia has been
    piecemeal. The Commission considers it vital that a system of regular and
    independent reviews of counter terrorism legislation be established. To ensure
    that the combined impact of all counter terrorism measures on individual rights
    can be monitored, reviews must consider how counter terrorism laws are working
    as a whole.

  2. A permanent independent reviewer should be given powers to gather
    information from a range of sources, including intelligence agencies, and be
    required to consider the human rights impacts of the laws.

  3. A Bill to enable the appointment of an Independent Reviewer to review and
    report on terrorism related laws was recently introduced into the
    Senate.[29] An inquiry into this
    Bill is currently being conducted and will report on 24
    September.[30]

3.3 Impact on Arab
and Muslim Australians

  1. A number of reports have found that the counter terrorism laws impact most
    on Arab and Muslim Australians who feel under greater surveillance and
    suspicion.

  2. The Review of Security and Counter Terrorism Legislation, conducted by the
    Parliamentary Joint Committee on Intelligence and Security in 2006 found that
    Australians of Arabic heritage and Australian Muslims feel like they are under
    greater surveillance and suspicion, and that counter terrorism laws have
    increased distrust of authority and alienation from the wider community within
    these groups.[31]

  3. Reports from non-government organisations such as the Australian Muslim
    Civil Rights Advocacy Network (AMCRAN) have also advised that Muslims have felt
    that counter terrorism laws are selectively applied to them. This perception was
    increased by the fact that only Muslim organisations were listed as
    ‘terrorist organisations’ under the Criminal Code Act 1995 (Cth). Compounded by uncertainties around the definition of terrorism and
    terrorist organisations, this has fuelled confusion and
    fear.[32] In many instances, this
    has led to self-limiting behaviours – a form of self-censorship that has
    reduced personal freedom and
    choices.[33]

4 Immigration
detention

4.1 Arbitrary
detention

  1. Australia’s system of mandatory detention has led to prolonged and
    indefinite detention for many people. The Common Core Document explains this
    system at paragraphs 261-272. The Commission has consistently called for an end
    to this policy because it places Australia in breach of its obligations under
    the ICCPR to ensure that no one is arbitrarily
    detained.[34]

  2. While detention may be acceptable for a short period in order to conduct
    security, identity and health checks, currently, mandatory detention laws
    require detention for more than these purposes, for unlimited periods of time
    and in the absence of independent review of the need to detain.

  3. On 29 July 2008, the Minister for Immigration and Citizenship (the
    Minister), Chris Evans, announced a new direction in immigration detention
    policy.[35] The Commission
    understands that this new direction provides for a fundamental shift in
    immigration detention policy, away from the requirement that all unlawful
    non-citizens be detained, towards a presumption that detention will occur as a
    last resort and for the shortest practicable period.

  4. While the Commission welcomes this announcement, to date it has not received
    further detail on the practical implementation of the new approach, in
    particular how such changes will be enforced or guaranteed. The Commission
    remains concerned that without legislative change, the immigration detention
    system will fail to guarantee freedom from arbitrary detention, among other
    human rights.

4.2 Review of
detention

  1. The Commission is concerned that the absence of the right to judicial review
    of immigration detention breaches article 9(4) of the ICCPR. There is no right
    to judicial review of decisions to detain unlawful non-citizens under the Migration Act 1958 (Cth) (Migration Act). The courts are precluded from
    authorising release from detention, unless the detention contravenes domestic
    law. The courts have no authority to order that a person be released from
    immigration detention on the grounds that the person’s continued detention
    is arbitrary, in breach of article 9(1) of the ICCPR. This is because under
    Australian law it is not unlawful to detain a person (or to refuse to release a
    person) contrary to article 9(1) of the ICCPR.

  2. The Commission believes that any decision to detain a person should be
    subject to judicial review and there should be clear legal limits on the period
    of time for which immigration detention is permitted.

4.3 Detainees in
excised offshore places

  1. People who arrive in excised offshore places are unable to make a valid visa
    application under the Migration Act unless the Minister exercises his
    discretion.[36] These people have
    also been unable to access the same legal assistance as those who arrive on
    mainland Australia and their cases cannot be reviewed by the Refugee Review
    Tribunal or the courts.[37]

  2. The Commission has repeatedly raised concerns that the practice of
    processing asylum seekers offshore denies them their rights under article 9(4)
    of the ICCPR.[38] The lack of legal
    safeguards increases the risk of a person who is genuinely in need of
    Australia’s protection being returned to a place of persecution.

  3. As part of the Australian Government’s announcement of a new direction
    in immigration detention policy, the Minister indicated new plans to provide
    legal assistance to those people detained on Christmas Island (an ‘excised
    offshore place’) and provide them with access to independent review of
    their applications for asylum. The Commission has not as yet received any
    details about these new arrangements.

4.4 Standards for
conditions in detention

  1. The Commission is concerned that there are inadequate mechanisms to
    safeguard the treatment of people in immigration detention and ensure that
    conditions meet international human rights
    standards.[39] There are no
    legislated minimum standards for conditions and treatment that apply to all
    persons in immigration
    detention.[40]

  2. In the Common Core Document, the Australian Government refers to the
    Immigration Detention Standards
    (IDS).[41] The IDS are part of the
    contract that exists between the Australian Government and the private provider
    that runs its immigration detention facilities, GSL (Australia). The IDS require
    regular reporting on a range of service requirements, including the conditions
    for immigration detainees. However, the IDS do not provide sufficient guidance
    on what service providers must do to ensure that conditions in immigration
    detention comply with international human rights standards. There is also
    inadequate accountability on the service provider to ensure they comply with the
    IDS. The IDS are not legally enforceable and do not provide people in
    immigration detention with a cause of action or an effective remedy for alleged
    breaches of their human rights.

  3. The Commission notes that, in 2008, the UN Committee against Torture
    recommended that the IDS be codified into
    legislation.[42]

5 Non-refoulement
obligations

  1. The Commission has on numerous occasions recommended that a system of
    complementary protection be introduced to protect people who do not fall within
    the definition of refugee under the Refugee Convention but who
    nonetheless must be protected from refoulement under the ICCPR, the Convention against Torture (CAT) and the Convention on the Rights of
    the Child
    (CRC).[43]

  2. Australia currently has no effective system of protection for these asylum
    seekers. Instead, their claims can only be considered after they have been
    rejected at each stage of the refugee determination process and then seek a
    personal intervention by the Minister for Immigration and Citizenship (the
    Minister) under the Migration Act. Although the Minister may consider
    Australia’s obligations under other treaties, his or her decisions in
    these cases are non-compellable and non-reviewable. The Minister is also not
    obliged to give reasons for his or her decisions, which means that the decisions
    lack transparency and accountability, and consistency.

  3. In May 2008, the UN Committee against Torture repeated its recommendation
    that Australia introduce a system of complementary protection to ensure that
    Australia no longer relies on the Minister’s discretionary powers to meet
    its non-refoulement obligations under
    CAT.[44]

6 People
trafficking

  1. As discussed in the Common Core Document, visa arrangements were set up in
    2004 whereby suspected victims of trafficking may be able to obtain a visa to
    remain in Australia for up to 30 days, conditional upon their willingness and
    ability to assist police investigations and
    prosecutions.[45] Only visa holders
    have access to the Government funded victim support program.

  2. The Commission remains very concerned about this system and has emphasised
    that victim support for trafficking victims should be available on the basis of
    need.[46]

  3. Further, the Commission is concerned that the current 30 day visa available
    to victims of trafficking is an insufficient period to allow them to recover
    from their traumatic experience before engaging in decisions about whether to
    participate in a criminal justice process. The Commission has
    raised these concerns with the Department of Immigration and
    Citizenship as part of its review of the People Trafficking Visa Framework
    in January 2008.

7 Equality between
Indigenous and non-Indigenous Australians

  1. Indigenous disadvantage is an indicator of the discrimination and inequality
    faced by Aboriginal people.[47] The
    Committee recognised in its 2000 Concluding Observations that the high level of
    exclusion and poverty facing indigenous persons is indicative of the lack of
    adequate protection of indigenous peoples’ cultural rights recognised in
    Article 27.[48]

  2. Aboriginal and Torres Strait Islander people continue to experience
    significant inequalities in the realisation of their civil and political rights.
    Inequality in the right to life is of particular concern. Between 1996 and 2001,
    there was an estimated difference of 17 years between Indigenous and
    non-Indigenous life
    expectancy.[49]

  3. Underlying this inequality in the right to life is a range of social and
    economic inequalities including lower incomes, higher rates of unemployment,
    poorer educational outcomes and lower rates of home
    ownership.[50] For example, in 2001
    the unemployment rate for Indigenous peoples was 20% - three times higher than
    the rate for non-Indigenous Australians.

  4. The Commission is concerned that the current spending on Indigenous programs
    is still insufficient to meet the need in Indigenous communities. For example,
    the $425.3 million allocated in the 2008-09 budget for Indigenous health
    policies and programs falls significantly short of the $460 million per year
    which is estimated to be the minimum commitment needed to close the gap in
    equality in health status between Indigenous and non-Indigenous
    Australians.[51] Adequate funding
    for health programs and services is an important contribution to equalising the
    life expectancy levels between Indigenous and non-Indigenous people.

  5. The Commission notes that at the Indigenous Health Equality Summit in 2008,
    the Australian Government made accountable and measureable commitments to
    achieving equality in health status and life expectancy between Indigenous and
    non-Indigenous Australians by 2030. The Council of Australian Governments has
    similarly committed to closing the life expectancy gap within a generation,
    halving the mortality gap for children under five within a decade and halving
    the gap in reading, writing and numeracy within a decade.

  6. Having committed itself to applying this human rights based framework to
    address Indigenous health, the Australian Government should take steps to
    equally apply a human rights based framework to all aspects of Indigenous
    affairs policy, programs and service delivery, including in relation to the
    Northern Territory Emergency Response.

  7. The Commission looks forward to the government introducing measures to
    realise these commitments.

8 Indigenous
self-determination

  1. In its Concluding Observations in 2000, the Human Rights Committee noted the
    inadequacy of the government’s position on the right to self
    determination:

    [T]he Committee takes note... the Government of the
    State party prefers terms such as "self-management" and "self-empowerment" to
    express domestically the principle of indigenous peoples' exercising meaningful
    control over their affairs. The Committee is concerned that sufficient action
    has not been taken in that
    regard.[52]

  2. The Declaration on the Rights of Indigenous Peoples recognises the
    right to self-determination of indigenous peoples and provides a clear guide for
    interpreting State parties’ obligations to Indigenous peoples. With the
    adoption of the Declaration, there is now international recognition of the right
    to self-determination of Indigenous peoples.

  3. The Commission notes that although the Australian Government declined to
    sign the Declaration on the basis of its dissatisfaction with the references to
    self-determination in the text, the new Australian Government has since
    indicated that it will support the Declaration and is consulting with state and
    territory governments prior to formally expressing its support. At the
    Australian Government’s request, the Commission has been seeking the views
    of Indigenous Organisations on how the government should support the
    Declaration.

  4. The Declaration provides a firm basis for advancing greater recognition and
    protection of Indigenous people’s rights to self-determination in
    Australia. The Commission looks forward to the Australian Government formally
    expressing its support for the Declaration and working with the government on
    mechanisms for implementing the Declaration within Australia. Strengthening the
    powers of the Commission so that it can take the Declaration into account in
    exercising its functions, as well as providing greater resourcing and capacity
    to the Commission, would contribute to the future operation of the Declaration
    in Australia.

9 Indigenous
representation and participation in decision-making

  1. The Commission’s Social Justice Reports from 2004-2006 outline
    a reduction in Indigenous people’s participation in decision-making bodies
    since the abolition of the Aboriginal and Torres Strait Islander Commission
    (ATSIC) and within the ‘new arrangements’ for the administration of
    Indigenous Affairs subsequently put in place by the Australian Government. The
    Commission particularly notes the absence of processes for systematic engagement
    with Indigenous people under the new
    arrangements.[53]

  2. The new Australian Government has made a commitment to set up a new national
    representative body to provide an Aboriginal and Torres Strait Islander voice
    within government. To this end, the Australian Government has begun formal
    discussions with Indigenous people about the role, status and composition of
    this body.

10 Indigenous people and
the legal system

10.1 The criminal
justice system and Aboriginal deaths in custody

  1. The Commission is concerned about the continued high levels of incarceration
    of Indigenous people, particularly women and children, and the
    over-representation of Indigenous people in prisons and juvenile justice
    facilities. For example:

    • Indigenous prisoners represented 24% of the total prisoner population at 30
      June 2006, the highest proportion since 1996

    • only 5% of Australians aged 10-17 years are Indigenous, but 40% of those
      aged 10-17 years under juvenile justice supervision were
      Indigenous.[54]

  2. These issues have been dealt with extensively by the Social Justice
    Commissioner in the annual Social Justice
    Report
    .[55]

  3. The Committee against Torture recently recommended that the Australian
    Government reduce the overcrowding in prisons, implement alternatives to
    detention, abolish mandatory sentencing and prevent and investigate deaths in
    custody.

  4. In light of the continued over-representation of Indigenous people,
    particularly women, in the criminal justice system, there is a pressing need for
    the continued implementation of the 339 recommendations contained in the Report
    of the Royal Commission into Aboriginal Deaths in Custody, including any
    outstanding recommendations.[56]

  5. A comprehensive response to the issues raised by this report requires
    government commitment in two key areas:

    • ongoing community justice mechanisms which recognise Indigenous governance
      models and return control and decision-making processes to Aboriginal and Torres
      Strait Islander communities

    • measures to address the impact of Indigenous marginalisation and
      socio-economic disadvantage on Indigenous peoples’ contact with the
      criminal justice
      system.[57]

10.2 Customary
law

  1. The Commission has expressed concern about developments under federal law
    which undermine the role of Aboriginal customary law. These developments prevent
    a court from taking into account ‘any form of customary law or cultural
    practice’ as a mitigating factor in sentencing, or in the context of
    granting bail.[58]

  2. The Commission opposes this law for a number of reasons, including the
    importance of recognising the right of minorities to enjoy their own culture,
    which applies to Indigenous peoples and imposes a positive obligation on States
    to protect their
    cultures.[59] People who are convicted of criminal offences should be appropriately punished.
    This is best achieved by ensuring that courts can consider the full range of
    factors relevant to the commission of the offence, including a person’s
    culture. The right to enjoy culture cannot be enjoyed at the expense of the
    rights of others and must be consistent with other human rights in the ICCPR and
    the rights of women and children as protected by the CEDAW and the CRC.

10.3 Mandatory
sentencing

  1. In 2005 the Committee on the Elimination of Racial Discrimination reiterated
    its concerns about the provisions for mandatory sentencing in the Criminal Code
    of Western Australia and the disproportionate impact of this law on Indigenous
    groups.

  2. As noted in the Common Core Document, mandatory sentencing laws are still in
    place in Western Australia.[60] These laws have resulted in situations of injustice, with individuals receiving
    sentences that are disproportionate to the circumstances of their
    offending.[61]

  3. The Commission notes that although the Northern Territory Parliament made
    changes to the ‘mandatory sentencing’ laws for property offences
    effective from 2001, the Sentencing Act 1995 (NT) still contains forms of
    mandatory sentencing in cases involving offences of
    violence.[62]

  4. The Social Justice Report 2001 concluded that the policy of mandatory
    detention is not only ineffective in deterring crime and rehabilitating
    offenders, but costly and manifestly unjust. The Social Justice Commissioner has
    called on the Western Australian Government to repeal its mandatory detention
    provisions and for the federal Parliament to exercise its responsibilities to
    ensure compliance by the WA Government with Australia’s international
    human rights obligations by overriding the laws if
    necessary.[63]

11 Indigenous family
support and protection of children and young people

  1. As
    exemplified by reports such as the Little Children are Sacred Report (NT)
    and the Breaking the Silence Report (NSW), child abuse, child sexual
    abuse and family violence are critical issues for Indigenous
    communities.[64] An Indigenous child
    is six times more likely to be involved with the statutory child protection
    system than a non-Indigenous child, but four times less likely to have access to
    child care or preschool service that can offer family support to reduce the risk
    of child abuse.[65]

  2. The new federal government is currently developing a national framework for
    child protection that consolidates the different state and territory child
    protection systems, to ensure an integrated response across all government and
    non-Government organisations.

  3. As part of this framework, the government has looked to introduce income
    management schemes, where welfare incomes are quarantined or deducted subject to
    the enrolment and participation of children in schools.

  4. The Commission has recommended against the introduction such schemes as part
    of the national child protection framework. The Commission has called for the
    government to adopt a human rights-based approach to the framework that would
    uphold the ‘best interests of the child’,
    ‘non-discrimination’, and the child’s ‘right to
    life’ and ‘right to participation’.

  5. The Commission’s report on Ending Family violence and Abuse in
    Aboriginal and Torres Strait Islander Communities
    highlights the need for
    support for Indigenous community initiatives and networks, human rights
    education, government action, and robust accountability and
    monitoring.[66]

12 Indigenous language,
culture and arts

  1. A recent National Indigenous Languages Survey shows that of the
    original estimated 300 Indigenous languages, only a third of these exist today
    and most are critically
    endangered.[67]

  2. Indigenous languages and cultures are closely intertwined. Safeguarding
    languages preserves Indigenous culture and identity. 

  3. Currently, the promotion and protection of Indigenous languages and cultures
    is not sufficiently prioritised by the Australian Government. If languages are
    to survive, genuine commitment and policies are required for language
    maintenance and language revitalisation programs at all levels of
    Australia’s educational institutions. This means making schools culturally
    familiar and appropriate for Indigenous children and embedding Indigenous
    perspectives across the curriculum.

  4. Additionally, the Commission is concerned that the protection of Indigenous
    cultural and intellectual property by the mainstream legal system is inadequate.
    Instruments such as the Copyright Act 1986 (Cth) that provide legal
    protections for the life of the artist plus fifty years are not equipped to
    protect knowledge systems and artistic designs that are thousands of years old.
    Nor are they capable of recognising and protecting collective ownership of
    artistic content and products, which is common in Indigenous
    cultures.[68]

13 Stolen
Generations

  1. As discussed in the Common Core Document, the Bringing them Home Report of the National Inquiry into the Separation of Aboriginal and Torres
    Strait Islander Children from Their Families (1997) documents the experiences of
    the Stolen Generations, who were forcibly removed from their families under the
    guise of welfare.[69]

  2. This report recommended that reparation be made in recognition of the
    history of gross violations of human rights and that the van Boven
    principles
    guide the reparation measures, which should consist of:

    • acknowledgment and apology

    • guarantees against repetition

    • measures of restitution

    • measures of rehabilitation

    • monetary compensation.

  3. The first of these steps for reparation was undertaken by the new Australian
    Government this year. The Prime Minister of Australia apologised to the Stolen
    Generations in February 2008 for ‘laws and policies of successive
    Parliaments and governments that have inflicted profound grief, suffering and
    loss on these our fellow Australians... especially for the removal of Aboriginal
    and Torres Strait Islander children from their families, their communities and
    their country’.[70]

  4. The other recommendations for reparation remain outstanding, including the
    provision of healing programs for the Stolen Generations and their families and
    monetary compensation.

  5. The only compensation scheme established for the Stolen Generations to date
    has been in Tasmania.

14 Indigenous Stolen
wages

  1. The issue of ‘stolen wages’ has contributed to the entrenched
    and inter-generational disadvantage experienced by Indigenous people in
    Australia, and the consequent discrimination and inequality that contravenes the
    non-discrimination and equality provisions in Articles 2 (1) and 26 of the
    Covenant.

  2. The Stolen wages compensation schemes are a critical means for Indigenous
    people to access their right to remedy for the human rights violations they
    experienced, as required under Article 2 of the ICCPR, and as the Committee
    recommended in 2000.[71]

  3. Stolen wages compensation schemes have been established in Queensland and
    New South Wales to compensate Indigenous people for the withholding, non-payment
    and underpayment of wages in the control of
    government.[73] Investigations and
    consultations on the nature and extent of stolen wages issues in Western
    Australia are also underway.

  4. The right to remedy remains unfulfilled in areas where compensation schemes
    have not been established. The Commission notes the need for stolen wages
    compensation schemes to be established in other States and Territories as
    appropriate.

  5. The Commission also has significant concerns about the adequacy and fairness
    of the regimes established, particularly by the Queensland Government, to
    address injustices inflicted on Aboriginal and Torres Strait Islander people
    through the underpayment of
    wages.[74]

  6. In December 2006 the Senate Standing Committee on Legal and Constitutional
    Affairs published a report titled Unfinished business: Indigenous stolen
    wages
    , which recommended the following to strengthen the existing
    compensation schemes:

    • governments provide unhindered access to archives for the purposes of
      researching the stolen wages issue as a matter of
      urgency

    • funding be made available for education and awareness in Indigenous
      communities about, and preliminary legal research, into stolen wages
      issues.[75]

15 Native Title

  1. The Committee has recognised that the protection of indigenous
    peoples’ cultural rights under Article 27 includes their rights to land
    and the use of natural
    resources.[76] The Committee raised
    concerns in its Concluding Observations in 2000 about the native title system
    not complying with article 27 and the need for Indigenous people to have a
    stronger role in decision-making over their traditional lands and natural
    resources, as required by Article
    1(2).[77] The Committee has also
    considered in Concluding Observations for other States the protection of
    indigenous people’s land rights under Articles 1 and 25.

  2. As noted in the Common Core Document, the Native Title Act 1993 (Native Title Act) is the primary mechanism through which Aboriginal and Torres
    Strait Islander people access their cultural rights to
    land.[78] The Act was intended to
    advance and protect Indigenous people by recognising their traditional rights
    and interests in the land.[79] However, the Common Core Document fails to acknowledge the limitations of the
    Native Title Act, in particular that it does not deliver its intended
    outcomes.[80]

15.1 Native title
rights and interests are severely limited

  1. The Native Title Act has been drafted and interpreted such that native title
    rights will only be recognised in very limited circumstances. For example:

    • The courts require that Indigenous people claiming native title prove
      traditional laws and customs at sovereignty and their continued observance,
      generation by generation, until today. One of the cruel consequences is that the
      greater the Indigenous peoples were impacted on by colonisation (for example, if
      they were forcibly removed from their land), the more unlikely it is they will
      be able to access their native title rights.
    • Indigenous peoples bear the burden of proof and strict rules of evidence
      apply. The result is that Indigenous peoples of a culture based on the oral
      transmission of knowledge, must prove every aspect, including the content of the
      law, and custom and genealogy, back to the date of sovereignty (up to almost 200
      years) in a legal system based on written evidence. There is very limited
      flexibility for the court to take into account cultural differences in hearing
      the case.
    • Only traditional laws and customs of Indigenous peoples’ that existed
      at the time of sovereignty and which are still observed and practiced today will
      be recognised. There is little room for adaptation of the traditions to today.
      Similarly, the rights recognised are severely limited in terms of how the
      Indigenous peoples can utilise any resources associated with that land for
      economic or social benefit.

15.2 Discriminatory
aspects of the Native Title Act

  1. In 1999, acting under its early warning procedures, the Committee on the
    Elimination of Racial Discrimination considered amendments to the Native
    Title Act 1998
    (Cth) and expressed concern over their compatibility
    with Australia’s international obligations under the Convention on the
    Elimination of All Forms of Racial Discrimination.
    The Committee noted
    several provisions that discriminate against Indigenous title holders under the
    newly amended Act.[81]

  2. These issues have remained unaddressed and the Committee has repeated its
    concerns in the 2000 and 2005 Concluding Observations:

    The Committee
    reiterates its view that... the 1998 amendments roll back some of the
    protections previously offered to indigenous peoples and provide legal certainty
    for Government and third parties at the expense of indigenous title. The
    Committee stresses in this regard that the use by the State party of a margin of
    appreciation in order to strike a balance between existing interests is limited
    by its obligations under the Convention (art.
    5).[82]

  3. The Human Rights Committee and the Committee on Economic Social and Cultural
    rights also noted their concerns on these issues in
    2000.[83]

15.3 Operation of the
native title system

  1. The native title system is in a state of
    gridlock.[84] Only 111
    determinations of native title have been made in 15 years, and another 504
    determinations are waiting to be made. Litigated determinations take an average
    of seven years.[85]

  2. This is in part due to the technical and aggressive attitude of government
    parties in an adversarial setting. Another relevant factor is the inadequate
    funding by government for Indigenous peoples pursuing their
    rights.[86] Although some amendments
    to the system were made in 2007, these measures do not adequately improve the
    process.

  3. The Commission is concerned that while the system continues to progress so
    slowly, Indigenous peoples’ rights are being denied and Indigenous elders
    are dying.

15.4 Native title is
at the bottom of the hierarchy of Australian proprietary rights

  1. Native title is at the bottom of the hierarchy of proprietary rights in
    Australia. Through the Native Title Act, native title rights and interests are
    regularly permanently extinguished by overriding government and private
    interests.

15.5 Indigenous Land
Use Agreements

  1. Indigenous Land Use Agreements have been taken up rapidly and the government
    is focused on pursuing these
    agreements.[87] The Commission
    considers that these Agreements should be subject to closer scrutiny to ensure
    that they are delivering tangible benefits. The Commission also considers that
    the government should do more to support and build the capacity of Indigenous
    people to undertake negotiations.

16
Measures to promote Indigenous home ownership

  1. The government’s policy for pursuing Indigenous home ownership,
    outlined in the Common Core Document, requires Indigenous-owned land to be
    leased back to the government, who then sub-lease the
    land.[88] The Commission has a
    number of concern about the legislative amendments:

    • The legislation does not require that the Indigenous owners have consented
      to the lease of their land to government.
    • The amendments were made without the full understanding and consent of
      traditional owners and Indigenous people in the Northern
      Territory.
    • Research suggests that there is a high probability the policy will lead to
      reduced land holdings for Indigenous peoples, fewer rights over land and little
      if any material
      benefit.[89]

17 Compulsory
acquisition and the Northern Territory Emergency Response

  1. Through provisions in the Northern Territory National Emergency Response
    Act 2007
    (Cth), the federal government compulsorily acquired five year
    leases over Indigenous peoples’ land. However, the law does not require
    the government to pay the Indigenous owners any rent or compensation for the
    land which they have compulsorily acquired.

  2. The Commission is concerned that this is not consistent with legal
    principles in Australia, including the Australian Constitution which guarantees
    that just terms compensation will be paid to any person whose property is
    acquired.

18 Indigenous
participation in the management of environment, cultural heritage and climate
change

  1. Indigenous Australians have had very limited influence in decision-making
    affecting their natural environment and their means of subsistence. For example,
    while the Australian Government has been developing a policy for climate change,
    and while they developed laws and policies for water use and access, there has
    been minimal consultation or discussion with Indigenous peoples.

19 Cultural diversity
and multiculturalism

  1. The Commission has previously expressed concern over the increasing
    ambivalence and, at times, antagonism in public debate towards multiculturalism
    as a set of principles and as a government policy that frames social relations
    in Australia.[90]

  2. The Commission believes that multiculturalism in Australia is a policy that
    seeks to ensure equal enjoyment of rights. Multiculturalism also provides a
    framework to uphold the standards imposed by anti-discrimination law, such as
    the Race Discrimination Act, and the rights conferred through the international
    human rights framework.

  3. The Common Core Document notes that a policy review was conducted in 2005
    regarding multiculturalism.[91] However, the Commission remains concerned that there has still been no
    commitment by the Australian Government to multiculturalism.

20 Formal Citizenship
Test

  1. The Australian Government referred in the Common Core Document to the
    importance of citizenship for promoting cultural diversity and
    inclusion.[92] However, the
    Commission is concerned that the introduction of a formal citizenship test for
    migrants and refugees who wish to become Australian citizens may have a
    discriminatory impact.

  2. In 2007, the Australian Government introduced a formal citizenship test as
    part of the requirements for applying to gain Australian citizenship. The test
    aims to verify that applicants have demonstrated English competence and
    understanding of Australian values. The Commission recognises the right of the
    Australian Government to introduce formal citizenship test that is pursuant to a
    legitimate aim, proportionate to achieving this aim and based on reasonable and
    objective criteria. However, the Commission is concerned that the particular
    test introduced may disadvantage certain categories of people, particularly
    refugees and humanitarian applicants, and deprive them the right to equal
    treatment under articles 2 and 26 of the ICCPR.

  3. The Commission believes that humanitarian applicants should not have to
    demonstrate English language competency or an understanding of Australian values
    in order to find permanent refuge and settlement in Australia. It would
    also be inappropriate to require family reunion applicants, such as applicants
    for aged parent or spouse visas, to pass language or values
    tests.[93]

23 Homelessness

  1. In response to the high rates of homelessness which currently exist in
    Australia, the Australian Government held a public inquiry into homelessness in
    2008.[94] The Commission welcomed
    the Australian Government’s move to prioritise homelessness and encouraged
    it to recognise the human rights implications of homelessness in developing a
    new approach to
    homelessness.[95]

  2. People experiencing homelessness are unable to enjoy many human rights under
    the ICCPR to the same extent as other Australians. These rights
    include:

    • the right to liberty and security of the
      person[96]

    • the right to privacy[97]

    • the right to
      non-discrimination[98]

    • the right to
      vote.[99]

  3. Homeless people in Australia may also be adversely affected by laws that
    regulate public spaces. These laws may disproportionately impact on homeless
    people, who heavily rely on using public space, and enforcement of the laws by
    way of fines or other criminal sanctions exacerbates disadvantage faced by
    homeless people. Human rights affected by public space laws
    include:

    • the right to freedom of movement and freedom of
      association[100]

    • the right to freedom of
      expression[101]

    • the right to freedom from cruel, inhuman or degrading treatment or
      punishment.[102]

24 Mechanisms to prevent
torture and cruel, inhuman and degrading treatment within detention

  1. In comments to the Committee against Torture in February 2007, the
    Commission emphasised the importance of preventive actions to reduce the risk of
    people in detention being subjected to torture or cruel, inhuman or degrading
    treatment or punishment.[103]

  2. Although the Commission does not have jurisdiction to monitor the
    implementation of the CAT, the Commission has investigated complaints regarding
    allegations of violations of the freedom from cruel, inhuman and degrading
    treatment under the ICCPR and
    CRC.[104]

  3. In the comments to the Committee against Torture, the Commission identified
    shortcomings in the existing Commission protections against torture and cruel,
    inhuman or degrading treatment or punishment for people in detention, including
    that:

    • the Commission is unable to investigate complaints of a breach of a
      person’s human rights under the CAT

    • the Commission’s powers to receive complaints do not apply to acts or
      practices that occur in state or territory prisons

    • the Commission’s complaints handling function is reactive rather than
      preventative because it deals with individual complaints which occur after the
      breach

    • the Commission has no specific power to compel entry into places of
      detention

  4. The Commission welcomes the Australian Government’s indication of its
    intention to accede to the Optional Protocol of the Convention against Torture
    (OPCAT). An inspections regime envisaged under OPCAT would provide independent
    monitoring of the conditions in all places of detention including immigration
    detention facilities and juvenile and adult correctional
    facilities.

25 Laws regulating use
of public space

  1. Public space in Australia is regulated in many different ways. There are a
    range of laws and policies in different states and territories which give police
    powers to direct people in public places to ‘move on’, powers to
    search, question and arrest people in public, laws imposing curfews and
    provisions regarding public demonstrations and
    riots.[105]

  2. As noted by the Common Core Document, these laws and policies are intended
    to ensure public safety and
    order.[106] However, the
    Commission is concerned that they may impact on the following rights under the
    ICCPR:

    • the right to freedom of
      movement[107]

    • the right to freedom of
      association[108]

    • the right to peaceful
      assembly.[109]

  3. In some instances, broad and largely discretionary powers are conferred on
    police officers to enforce the laws, without adequate safeguards to ensure that
    these powers are invoked proportionally, in circumstances posing a sufficiently
    serious threat to public safety.

  4. These laws and policies may also have a disproportionate impact on certain
    groups of the population that rely on public space more than others, including
    young people, homeless people, Indigenous people, and certain cultural groups.
    Criminalisation of the use of public space by these groups fails to address the
    underlying health and welfare issues and may exacerbate their existing
    disadvantage.

26
The right to vote

  1. The Common Core Document states that the government makes efforts to
    encourage all eligible Australians to vote in
    elections.[110] The Commission has
    raised a number of concerns with the federal government about the ability of
    Australians to exercise their right to vote and participate in the political
    process without
    discrimination.[111]

26.1 Early closure of
the electoral rolls

  1. In 2006, the Australian Government amended electoral laws to shorten the
    period of time in which people can enrol or change their enrolment details after
    a federal election is called.[112] The Commission believes that early closure of the electoral rolls may lead to
    the disenfranchisement of many Australians by imposing an additional and
    unreasonable restriction on the right to vote. The changes may also
    disproportionately impact on marginalised groups who experience difficulties in
    enrolling to vote, including young people and new Australian citizens; people
    living in rural and remote areas; homeless and itinerant people; Indigenous
    peoples; and people with a mental illness or an intellectual
    disability.

26.2 Trialling of
electronically assisted voting for people with vision impairment

  1. Electronically assisted voting for people with vision impairment was
    trialled at the 2007 federal election. The Commission believes it is important
    that this method of voting be made permanently available and be provided in as
    many locations as possible. Eligibility to use this method of voting should be
    extended to all people who are unable to complete a secret ballot using a pencil
    and paper, including people with physical disability and people who cannot
    effectively use written instructions in completing a ballot paper, whether by
    reason of intellectual or learning disability, or other language or literacy
    difficulties.

26.3 Enrolment of
homeless and itinerant persons

  1. People experiencing homelessness in Australia often face significant
    difficulties in exercising their right to vote. For example, some people may
    have difficulty meeting proof of identity requirements because they do not have
    and cannot afford to obtain the necessary identity documents. Further, the
    threat of monetary penalties for failure to vote or failure to register changes
    of address may also discourage homeless people from enrolling to
    vote.

26.4
Disenfranchisement of prisoners sentenced to more than three years
imprisonment

  1. Under Australian law, persons serving sentences of imprisonment of three
    years of more are not eligible to
    vote.[113] The Commission is
    concerned that this restriction on the right of prisoners to vote may not be
    proportionate, as required by article 25 of the
    ICCPR.[114] Further, this
    restriction may have a disproportionate impact on groups who are overrepresented
    in the prison populations, such as Indigenous peoples, people with a mental
    illness and people with an intellectual disability.

27 Discrimination
against same-sex couples and their children

  1. In 2006, the Commission conducted a National Inquiry into discrimination
    against people in same-sex relationships in the area of financial and
    work-related entitlements and benefits. The final report, Same-Sex: Same
    Entitlements
    , found that more than 58 laws discriminate against people in
    same-sex relationships and their children in this
    way.[115] These laws breach the
    right to non-discrimination and equality before the
    law.[116]

  2. Recently, the Australian Government announced its intention to amend laws
    that discrimination against people in same-sex relationships and their children
    to remove the discrimination. The Commission welcomes the Government’s
    announcement and looks forward to the amendments which are expected to occur
    progressively over the next 12 months.

28 Sex and gender
diverse people

  1. The Commission is concerned that people who are transgender, transsexual or
    intersex in Australia are unable to enjoy a number of rights under the ICCPR to
    the same extent as others. These include:
  • freedom of expression[117]
  • the right to
    non-discrimination[118]
  • freedom of movement and
    travel[119]
  • the right to privacy[120]
  • the right to protection from torture, cruel, inhuman or degrading treatment
    of punishment.[121]

28.1 Official
documents and records

  1. Having documents that contain accurate information about sex and gender is
    crucial for the full participation in society of people who are sex and gender
    diverse. It is also an important aspect of expression of identity and sexuality
    and, in relation to travel documents, can affect a person’s freedom of
    movement and travel.[122]

  2. Some transgender, transsexual and intersex people have documents that state
    an inappropriate sex. Although Australia has some systems that enable the sex
    marker on official documents to be changed, not all transgender, transsexual and
    intersex people can access those systems. In particular, current systems for
    changing the sex marker on some official documents only can only be accessed by
    people who have undergone sex affirmation surgery. Further, the current systems
    do not allow for people who are married to change some or all of their
    documents.

  3. The absence of nationally consistent procedures to assist people who are
    transgender, transsexual or intersex to change their documents means that the
    process may be time consuming, frustrating and
    inconsistent.[123]


[1] Note that from 4 September
2008, the Human Rights and Equal Opportunity Commission is called the Australian
Human Rights Commission.

[2] Australian Government, Common Core Document forming part of the reports of States Parties –
Australia – incorporating the Fifth Report under the International
Covenant on Civil and Political Rights and the Fourth Report under the
International Covenant on Economic, Social and Cultural Rights
(June
2006).

[3] See Common Core Document, pars
69-73.

[4]Human Rights and Equal
Opportunity Commission Act 1984
(Cth), ss 29(2), 35(2).

[5] See for example, Human Rights
Committee, C v Australia, Communication No 900/1999, UN Doc
CCPR/C/76/D/900/1999 (2002), par 7.3. At: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f8755fbb0a55e15ac1256c7f002f17bd?Opendocument (viewed 11 September 2008).

[6] ICCPR, articles 2, 26. See
Common Core Document, pars 152-154.

[7] The Commission has made a wide
range of recommendations to government in the Submission to the Senate Legal
and Constitutional Affairs Committee Inquiry into the effectiveness of the
Sex Discrimination Act 1984 (Cth) in eliminating discrimination and
promoting gender equality
(2008). At: http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 17 September 2008).

[8] The Sex Discrimination
Commissioner’s findings are contained within Gender Equality: What
matters for Australian women and men
(2008). At: http://www.humanrights.gov.au/listeningtour/launch/index.html (viewed 17 September 2008).

[9] See Australian Human Rights
Commission, Gender Equality: What matters for Australian women and men (2008). At: http://www.humanrights.gov.au/listeningtour/launch/index.html (viewed 17 September 2008).

[10] See Common Core Document,
pars 380-383.

[11] See Australian Human Rights
Commission, Submission to the Productivity Commission’s Inquiry into
maternity, paternity and parental leave
(2008). At: http://www.pc.gov.au/__data/assets/pdf_file/0011/80984/sub128.pdf (viewed 17 September 2008).

[12] See Common Core Document,
pars 340-352. Publications from the Commission’s two-year Women, Men, Work
and Family project are available at: http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 17 September 2008).

[13] See recommendations of the
Commission in Submission to the Senate Legal and Constitutional Affairs
Committee Inquiry into the effectiveness of the
Sex Discrimination Act
1984 (Cth) in eliminating discrimination and promoting gender equality (2008). At: http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 17 September 2008).

[14] See Common Core Document,
par 111.

[15] Australian Human Rights
Commission, Submission to the Standing Committee on Legal and Constitutional
Affairs Inquiry into Older People and the Law
(December 2006). At: www.humanrights.gov.au/legal/submissions/2006/ADA_200612/older_people_and_the_law_dec06.html (viewed 4 September 2008).

[16]Age Discrimination Act
2004
(Cth), s 16.

[17] Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional Legislation
Committee Inquiry into the Age Discrimination Bill 2003
(3 September 2003).
At: www.humanrights.gov.au/legal/submissions/age_discrimination.html (viewed 4 September 2008).

[18] A dominant reason test
presents difficulty where it requires an evaluation of the respective weight of
two or more reasons contributing to a decision.

[19] Minister for Families,
Community Services and Indigenous Affairs, ‘National emergency response to
protect children in the NT’, (Media Release, 21 June 2007). At: http://www.fahcsia.gov.au/internet/minister3.nsf/content/emergency_21june07.htm (viewed 18 October 2007). The catalyst for the measures was the release of
Report of the Northern Territory Board of Inquiry into the Protection of
Aboriginal Children from Sexual Abuse, titled Ampe Akelyernemane Meke
Mekarle: ‘Little Children are Sacred’.

[20]Northern Territory
National Emergency Response Act 2007
(Cth); Families, Community Services
and Indigenous Affairs and Other Legislation Amendment (Northern Territory
National Emergency Response and Other Measures) Act 2007
(Cth); Social
Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007
(Cth).

[21] The Social Justice Report
2007
is available at: http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html (viewed 22 September 2008).

[22] Committee on the Elimination
of Racial Discrimination, Consideration of Reports Submitted by States
Parties under Article 9 of the Convention Concluding observations of the
Committee on Australia
(2005), CERD/C/AUS/CO/14; Committee on the
Elimination of Racial Discrimination, Sixty-sixth session, 21
February-11 March 2005. 

[23] See Australian Human Rights
Commission, Article 18: Freedom of religion and belief (1998). At: http://www.hreoc.gov.au/pdf/human_rights/religion/article_18_religious_freedom.pdf (viewed 4 September 2008).

[24] The Ismaع report is available at: http://www.humanrights.gov.au/racial_discrimination/isma/index.html.
See also the results of the Commission’s Living Spirit project Report
on Muslim Women's Project
(2006). At: http://www.humanrights.gov.au/racial_discrimination/livingspirit/1.html#5_3 (viewed 4 September 2008).

[25] This was a recommendation of
the report by Australian Human Rights Commission, Isma – Listen:
National consultations on eliminating prejudice against Arab and Muslim
Australians
2003-2004, available at: http://www.humanrights.gov.au/racial_discrimination/isma/index.html (viewed 23 September 2008).

[26] See for example, Racial
and Religious Intolerance Act 2001
(Vic), s 8.

[27] ICCPR, arts 2, 26. For more
information, see Australian Human Rights Commission, Report of initial
consultation of the Sex and Gender Diversity Project
(July 2008). At: http://www.hreoc.gov.au/genderdiversity/consultation_report2008.html (viewed 4 September 2008).

[28] See Common Core Document,
pars 232-260, 294-298.

[29] Independent Reviewer of
Terrorism Laws Bill 2008 [No.2].

[30] Senate Committee on Legal
and Constitutional Affairs Inquiry into the Independent Reviewer of Terrorism
Laws Bill 2008 (No2): At
http://www.aph.gov.au/senate/committee/legcon_ctte/terrorism/index.htm

[31] Australian Government,
Parliamentary Joint Committee on Intelligence and Security Review of Security
and Counter Terrorism Legislation (2006). At: http://www.aph.gov.au/house/committee/pjcis/securityleg/index.htm (viewed 4 September 2008).

[32] Reports by AMCRAN are
available at: http://www.amcran.org/.

[33] Parliamentary Joint
Committee on Intelligence and Security Review of Security and Counter
Terrorism Legislation
, see chapter 3 pp 23-38.

[34] For example, Australian
Human Rights Commission, Submission to the Joint Standing Committee on Migration
Inquiry into Immigration Detention in Australia (4 August 2008). At: http://www.humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (viewed 4 September 2008); ICCPR, art 9.

[35] Senator Chris Evans,
‘New Directions in Detention – Restoring Integrity to
Australia’s Immigration System’, Seminar – Centre for
International and Public Law, 29 July 2008.

[36]Migration Act 1958 (Cth), s 46A.

[37]Migration Act 1958 (Cth), s 494AA.

[38] For example, Australian
Human Rights Commission, Submission to the Senate Legal and Constitutional
Committee Inquiry into the Migration Amendment (Designated Unauthorised
Arrivals) Bill 2006
(19 January 2007). At: http://www.humanrights.gov.au/legal/submissions/2007/migration_amendment_bill_06.htm (viewed 4 September 2008).

[39] For example, ICCPR article
10. See Common Core Document pars 273-279.

[40] For more information, see
Australian Human Rights Commission, Comments on Australia’s Compliance
with the Convention against Torture and Other Cruel, Inhuman and Degrading
Treatment or Punishment
(April 2008). At: http://www.humanrights.gov.au/legal/submissions/2008/080415_torture.html (viewed 4 September 2008).

[41] See Common Core Document,
pars 156-157.

[42] Committee against Torture, Concluding Observations of the Committee against Torture: Australia, Advance unedited version, UN Doc CAT/C/AUS/CO/115 (2008).

[43] For example, Australian
Human Rights Commission, Submission to the Senate Select Committee on
Ministerial Discretion in Migration
(2003). At: http://www.hreoc.gov.au/legal/submissions/migration_matters.html (viewed 4 September 2008). See Core Document, pars 299-301.

[44] Note 8.

[45] ICCPR, article 8. See Common
Core Document, pars 220-221.

[46] See for example, Australian
Human Rights Commission, Submission to the Senate Legal and Constitutional
References and Legislation Committee Inquiry into the Criminal Code Amendment
(Trafficking in Persons) Bill 2005 (2005). At: http://www.hreoc.gov.au/legal/submissions/criminal_code_trafficking_bill.html (viewed 17 September 2008).

[47] ICCPR, article 2(1) and
article 26.

[48] Human Rights Committee, Concluding observations: Australia, 24/07/2000UN Doc A/55/40, paras.498-528
(available at:
http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/e1015b8a76fec400c12569490…)

[49] These issues are discussed
in detail in the Social Justice Report 2003, available at: http://www.hreoc.gov.au/social_justice/statistics/index.html (viewed 9 September 2008); Australian Institute of Health and Welfare and
Australian Bureau of Statistics, The Health and Welfare of Australia's
Aboriginal and Torres Strait Islander Peoples 2005
, available at: www.aihw.gov.au/publications/ihw/hwaatsip05/hwaatsip05.pdf (viewed 9 September 2008); Australian Institute of Health and Welfare, Australia's Health No.11, 2008, available at: http://www.aihw.gov.au/publications/aus/ah08/ah08-c03.pdf (viewed 9 September 2008).

[50] ICCPR, article 2(1).

[51] Research by the Australian
Medical Association, cited in OXFAM Australia, Close the Gap –
Solutions to the Indigenous Health Crisis facing Australia
, April 2007, p7.
At: http://www.oxfam.org.au/media/files/CTG.pdf (viewed 23 September 2008).

[52] Human Rights Committee, Concluding observations of the Human Rights Committee: Australia (2000),
UN Doc A/55/40, par 506. At: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/e1015b8a76fec400c125694900433654?Opendocument (viewed 22 September 2008). See Common Core Document, p55. ICCPR, article 1.

[53] These issues are noted in
the Common Core Document at pars 181-183. See also Australian Human Rights
Commission, Building a National Indigenous Representative Body – Issues
for Consideration
, available at: http://www.humanrights.gov.au/social_justice/repbody/index.html (viewed 23 September 2008).

[54] Australian Bureau of
Statistics, Prisoners in Australia 2006. At: http://www.abs.gov.au/ausstats/abs@.nsf/ProductsbyReleaseDate/BA368B46230A4118CA2573AF0014B905?OpenDocument (viewed 23 September 2008). Australian Institute for Health and Welfare, Juvenile Justice National Minimum Data Set 2005-06: Facts and figures.
At: http://www.aihw.gov.au/childyouth/juvenilejustice/jj_facts_and_figures.cfm (viewed 23 September 2008).

[55] See, for example, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Social Justice Report
2000
, Sydney, 2001; Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 2001, Sydney, 2002; Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice Report
2002
, Sydney, 2003; and Aboriginal and Torres Strait Islander Commissioner, Social Justice Report 2004, Sydney, 2005. See Common Core Document, p29.
ICCPR, articles 2, 9.

[56] See Common Core Document,
pars 285-288.

[57] See the findings of the
Cooperative Research Centre for Aboriginal Health regarding the links between
preventing recidivism and improving the social, emotional and cultural wellbeing
of Aboriginal people: Cooperative Centre for Aboriginal Health Research, Research Priorities in Aboriginal Prisoner Health: Recommendations and
Outcomes form the CRCAH Aboriginal Prisoner Health Industry Roundtable, November
2007
, Discussion Paper Series No. 6, August 2008.

[58]Crimes Amendment (Bail
and Sentencing) Act 2006
(Cth).

[59] ICCPR, article 27; Human
Rights Committee, General Comment 23, par 7. For further details, see Australian
Human Rights Commission, Submission to the Legal and Constitutional Affairs
Committee (2006). At: http://www.humanrights.gov.au/legal/submissions/crimes_amendment.html (viewed 22 September 2008).

[60] See Criminal Code (WA), s 282. See Common Core Document, pars 163-164. ICCPR, article 9.

[61] See further Australian Human
Rights Commission, Submission to the Human Rights Committee. At: http://www.hreoc.gov.au/pdf/social_justice/submissions_un_hr_committee/5_mandatory_sentencing.pdf (viewed 23 September 2008).

[62] See Sentencing Act 1995 (NT), ss 78BA, 78BB.

[63] See further Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice Report
2001
, available at: http://www.hreoc.gov.au/social_justice/sjreport_01/index.html (viewed 23 September 2008).

[64] See Common Core Document,
pars 365-368. ICCPR, article 24.

[65] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 2007,
p116.

[66] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Ending family violence and abuse in
Aboriginal and Torres Strait Islander communities: Key issues
(2006), pp5-6.
See also Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2007, pp 194-95.

[67] See Common Core Document,
pars 147-151, 594-597. ICCPR, article 27.

[68] For further information,
President of Australian Human Rights Commission, Presentation on the legal
protection of Indigenous Cultural and artistic works
. At: http://www.hreoc.gov.au/about_the_commission/speeches_president/20060901_Malaysia.html (viewed 23 September 2008).

[69] Australian Human Rights
Commission, Bringing them home: National Inquiry into the Separation of
Aboriginal and Torres Strait Islander Children from Their Families
, 1997, Sydney. At: http://www.hreoc.gov.au/social_justice/bth_report/report/index.html (viewed 23 September 2008). See Common Core Document, par 369.

[70] House of Representatives,
Official Hansard No.1 , Forty second Parliament, First Session, First Period (13
February 2008), p167. At: http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 10 June 2008).

[71]72 Human Rights
Committee, Concluding observations: Australia, 24/07/2000UN Doc A/55/40,
paras.498-528 (available at:
http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/e1015b8a76fec400c12569490…).

[73] See Common Core Document,
par 230. ICCPR, articles 2, 8.

[74] See Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional References and
Legislation Committee Inquiry into Stolen Wages (2006), pars 13-24. At: http://www.humanrights.gov.au/legal/submissions/stolen_wages_2006.html (viewed 23 September 2008).

[75] The report is available at: http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/report/index.htm (viewed 23 September 2008).

[76] See Human Rights Committee
General Comment 23 – Rights of Minorities (Article 27).

[77] Human Rights Committee, Concluding observations: Australia, 24/07/2000UN Doc A/55/40, paras.498-528
(available at:
http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/e1015b8a76fec400c12569490…).

[78] See Common Core Document,
pars 127-135. ICCPR, articles 1, 2(1), 27.

[79] See the preamble to the Native Title Act 1993 (Cth).

[80] See Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2007.
At: http://www.humanrights.gov.au/social_justice/nt_report/index.html (viewed 23 September 2008).

[81] These provisions included:
validation provisions; the confirmation of extinguishment provisions; the
primary production upgrade provisions; and restrictions concerning the right of
indigenous title holders to negotiate non-indigenous land uses: Committee on the
Elimination of Racial Discrimination, Decision 2 (54) on Australia (18/03/1999), UN Doc A/54/18, par 21(2). At: http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/a2ba4bb337ca00498025686a005553d3?Opendocument (viewed 23 September 2008).

[82] Committee on the Elimination
of Racial Discrimination, Concluding Observations: Australia (2005), UN
Doc CERD/C/AUS/CO/14, par 16. At: http://www.bayefsky.com/docs.php/area/conclobs/treaty/cerd/opt/0/state/9/node/3/filename/australia_t4_cerd_66 (viewed 23 September 2008).

[83] Committee on Economic Social
and Cultural Rights, Concluding Observations of the Committee on Economic,
Social and Cultural Rights: Australia
(01/09/2000), UN Doc E/C.12/1/Add.50.
At: http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/693c56f3d2694130c12569580039a1a2?Opendocument (viewed 23 September 2008); Human Rights Committee, Concluding observations
of the Human Rights Committee: Australia
(24/07/2000), UN Doc A/55/40, pars
498-528. At: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/e1015b8a76fec400c125694900433654?Opendocument (viewed 23 September 2008).

[84] See Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2007.
At: http://www.humanrights.gov.au/social_justice/nt_report/index.html (viewed 23 September 2008).

[85] See Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2007.
At: http://www.humanrights.gov.au/social_justice/nt_report/index.html (viewed 23 September 2008).

[86] See Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2007.
At: http://www.humanrights.gov.au/social_justice/nt_report/index.html (viewed 23 September 2008).

[87] See Common Core Document,
pars 133-134.

[88] See Common Core Document,
pars 136-139.

[89] See also the Social
Justice Report 2005
, available at http://www.hreoc.gov.au/social_justice/ntreport05/index.html;
Australian Human Rights Commission, Submission to the Senate Legal and
Constitutional Committee Inquiry into the ALRA amendments
(2006). At: http://www.hreoc.gov.au/social_justice/submissions/alra_amendments_senate_subjuly2006.html (viewed 23 September 2008).

[90] For example, Australian
Human Rights Commission, Acting Race Discrimination Commissioner, Position
paper on multiculturalism
(August 2007). At: http://www.humanrights.gov.au/racial_discrimination/multiculturalism/index.html (viewed 4 September 2008); Australian Human Rights Commission, Submission to
the Department of Immigration and Multicultural Affairs on the discussion paper:
‘Australian citizenship: much more than just a ceremony’
(September 2006). At: http://www.humanrights.gov.au/racial_discrimination
/reports/citizenship_paper_2006.html
(viewed 4 September 2008).

[91] See Common Core Document,
pars 582-587.

[92] See Common Core Document,
par 167.

[93] For example, see Australian
Human Rights Commission, Submission to the Citizenship Taskforce on the
discussion paper ‘Australian citizenship: much more than just a
ceremony’
(September 2006). At: http://www.humanrights.gov.au/racial_discrimination/report/citizenship_paper_2006.html (viewed 8 September 2008); Australian Human Rights Commission, Submission to
the Legal and Constitutional Affairs Committee on the Australian Citizenship
Amendment (Citizenship Testing Bill) 2007
(6 July 2007. At: http://www.humanrights.gov.au/legal/submissions/2007/aust_citizenship_amendment.html (viewed 8 September 2008).

[94] Australian Government, Which Way Home? A New Approach to Homelessness (2008). At: http://www.facsia.gov.au/internet/facsinternet.nsf/housing/new_approach_stage1.htm (viewed 4 September 2008).

[95] Australian Human Rights
Commission, Submission to the Green Paper on Homelessness – Which Way
Home?
(4 July 2008). At: http://www.hreoc.gov.au/legal/submissions/2008/20080704_homelessness.html (viewed 4 September 2008).

[96] ICCPR, article 9(1).

[97] ICCPR, article 17.

[98] ICCPR, article 26.

[99] ICCPR, article 25.

[100] ICCPR, articles 12, 22.

[101] ICCPR, article 19(2).

[102] ICCPR, article 7. There
are a range of laws in Australia that criminalise essential human behaviours
connected to being homeless, such as sleeping, bathing, urinating, and storing
belongings in public. When homeless people have no other choice but to perform
these acts in public, enforcing these laws may violate the right to freedom from
cruel, inhuman or degrading treatment or punishment.

[103] These comments are
available at http://www.humanrights.gov.au/legal/submissions/2007/aust_compliance_with_the_convention_against_torture.html.

[104] The reports of these
findings can be found at http://www.hreoc.gov.au/human_rights/human_rights_reports/hrc_report_35.html.

[105] For example, Crime
Prevention Powers Act 1998
(ACT); Summary Offences Act 1953 (SA); Summary Offences Act 2005 (Qld); Police Powers and Responsibilities
Act 2000
(Qld).

[106] See Common Core Document,
par 329.

[107] ICCPR, article 12.

[108] ICCPR, article 22.

[109] ICCPR, article 21.

[110] See Common Core Document,
pars 171-174.

[111] For example, Australian
Human Rights Commission, Submission to the Joint Standing Committee on
Electoral Matters Inquiry into the 2007 federal election
, 15 May 2008. At: http://www.aph.gov.au/house/committee/em/elect07/subs/sub097.pdf (viewed 4 September 2008); ICCPR, article 25.

[112] After an election writ is
issued, new enrolments of new citizens and persons who turn 18, and updates of
name and address details, must be completed within three days. Other new
enrolments and re-enrolments must be completed by 8pm on the same day.

[113] Note that, in 2006, the Australian Government passed legislation which excluded all people serving a sentence of imprisonment, of any length, from voting. The High Court later found that these amendments were constitutionally invalid: Roach v Electoral Commissioner [2007] HCA 43.

[114] ICCPR, General Comment 25, par 14.

[115]Same-Sex: Same
Entitlements
is available at http://www.humanrights.gov.au/human_rights/samesex/index.html.

[116] ICCPR, article 26.

[117] ICCPR, article 19.

[118] ICCPR, article 26.

[119] ICCPR, article 12.

[120] ICCPR, article 17.

[121] ICCPR, article 7.

[122] ICCPR, articles 2, 12,
18, 19.

[123] For more information, see
Australian Human Rights Commission, Report of initial consultation of the Sex
and Gender Diversity Project
(July 2008). At: http://www.hreoc.gov.au/genderdiversity/consultation_report2008.html (viewed 4 September 2008).