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Information concerning Australia and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (2010)

Legal Legal
Friday 14 December, 2012

Information concerning Australia and the International Convention on
the Elimination of All Forms of Racial Discrimination (ICERD)

Australian Human Rights Commission
Submission to the ICERD Committee

8 July 2010


Table of Contents


1 Introduction

  1. This submission was prepared by Australian Human Rights Commission (formerly
    named the Human Rights and Equal Opportunity
    Commission)[1]. This submission
    provides information in relation to the Australian Government’s combined
    15th, 16th and 17th periodic report under the International Convention on the
    Elimination of All Forms of Racial Discrimination (ICERD).
  2. All of the material included in this document has been previously brought to
    the attention of the Australian Government through a range of Commission
    publications and submissions.

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2 The Australian Human
Rights Framework

  1. 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 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. These measures will contribute to improved
    protection of human rights in Australia. The Framework will address some, but
    not all, of the weaknesses in Australia’s human rights protection system,
    such as guaranteed protection against racial discrimination.

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3 The Social Inclusion
Agenda as a national policy priority

  1. In 2009 the Australian Government launched the Social Inclusion Agenda,
    which is a whole-of-government policy. The Agenda is coordinated through the
    Department of the Prime Minister and Cabinet and the Department of Education,
    Employment and Workplace Relations.
  2. The Australian Human Rights Commission welcomes the development of the
    Social Inclusion Agenda and the establishment of the Australian Government
    Social Inclusion Board.
  3. The Australian Human Rights Commission notes the submission we provided to
    the Compendium of Social Inclusion Indicators feedback process in September
    2009. This submission focused on the race and cultural diversity dimensions of
    social inclusion and how this could be properly measured.
  4. The Australian Government’s social inclusion priorities include:
    • supporting children at greatest risk of long term disadvantage
    • helping jobless families with children
    • focusing on the locations of greatest disadvantage
    • assisting in the employment of people with disability or mental illness
    • addressing the issue of homelessness
    • closing the gap for Indigenous Australians.
  5. In the introduction section of the Compendium of Social Inclusion
    Indicators, discrimination is identified as one of the major causes of social
    exclusion. However, the document does not go on to include race-based
    discrimination as one of the categories of analysis relating to social
    inclusion. Nor does it identify race-based discrimination as an indicator for
    social inclusion or social exclusion.
  6. The Compendium identifies people from non-English speaking backgrounds as
    being one of the groups most vulnerable on the: (1) persistent relative poverty
    assessment and the (2) vulnerable on the more stringent risk of poverty
    assessment.[2]
  7. Though the Commission supports the list of Social Inclusion priorities, we
    are disappointed that there is no specific priority that expressly focuses on
    the disadvantage of ethnic minorities in Australia.
  8. The Australian Government has committed to developing a National Action Plan
    on Social Inclusion.
Recommendation 1: That the Australian
Government Social Inclusion Board include in its list of priority areas (I)
newly arrived migrants, (II) disadvantaged migrants and (III) people from
refugee backgrounds in their list of priority areas.

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4 The domestic
implementation of ICERD and the Durban Declaration and Program of Action
(DDPA)

4.1 An implementation
mechanism for ICERD in Australia

  1. There is currently no clear mechanism operating in Australia to consider,
    coordinate or enact the recommendations or the Concluding Observations of the
    ICERD Committee.

Recommendation 2: That the proposed Joint
Parliamentary Committee on Human Rights be empowered to make recommendations in
relation to the implementation of ICERD Committee Concluding
Observations.

Recommendation 3: That the Department of Foreign Affairs and Trade and the
Australian Human Rights Commission co-chair an annual ICERD implementation
meeting to (I) delegate responsibilities and (II) monitor progress.

Recommendation 4: That the Australian Government appoint a full time
Commissioner exclusively dedicated to race discrimination.

4.2 Consolidated
approach to research and data

Recommendation 5: That the Department of Immigration and Citizenship and
the Department of Families, Housing, Community Services and Indigenous Affairs
develop publicly available research frameworks that identify in respect of
migrant communities and indigenous communities respectively (I) current research
and data collection priorities and (II) research and data gaps relevant to
migrant communities and Indigenous communities respectively.

Recommendation 6: That the Department of Immigration and Citizenship fund
an independent biennial report on migrant disadvantage based on the Overcoming
Indigenous Disadvantage report model.

Recommendation 7: That the Australian Government conduct a major national
study on the experiences of temporary migrants in Australia (workplace
experiences, safety, experiences of racism, social inclusion)

Recommendation 8: That the Australian Government conduct research on the
international student population in Australia in the following key
areas:

  • income and expenditure
  • living and working conditions
  • experiences of discrimination
  • strategies to support safe international student
    experiences.

Recommendation 9: That the Australian Bureau of
Statistics work in partnership with state and territory police agencies to
collect national data on racially motivated crime.

5 Positive
developments

5.1 Aboriginal and
Torres Strait Islander communities

  1. Positive developments in addressing racism against Indigenous peoples and in
    the promotion and protection of Indigenous peoples’ rights in Australia
    have included:

    • the National Apology by the Prime Minister in the Australian Parliament to
      the Stolen Generations, for the past policies and practices of forcibly removing
      Indigenous children from their families on 13 February
      2008.[3]
    • the formal endorsement by the Australian Government of the United Nations
      Declaration on the Rights of Indigenous Peoples (Declaration) in April
      2009.[4]
    • the affirmation by the Council of Australian Government (COAG) of the
      National Integrated Strategy for Closing the Gap in Indigenous Disadvantage,
      which identified six Closing the Gap targets in the areas of health, education
      and employment in July 2009. These targets have been supplemented by substantial
      budget commitments under the National Indigenous Reform Agreement and associated
      National Partnership Agreements.[5]
    • the formation of the Aboriginal and Torres Strait Islander Healing
      Foundation in October 2009. The Foundation will support Aboriginal and Torres
      Strait Islander healing initiatives at the community level, conduct health
      promotion and public education activities and undertake research and
      evaluation.[6]
    • the formation of the National Congress of Australia’s First Peoples,
      in November 2009. The Congress is a new national representative voice for
      Aboriginal and Torres Strait Islander peoples.
    • The lifting of the suspension of the RDA for the NTER legislation in June
      2010.

5.2 Migrants and
people from culturally and linguistically diverse backgrounds

  1. There have been a number of positive developments in addressing racism
    against migrants and people from culturally and linguistically diverse
    backgrounds. These have included:

    • the establishment of the Australian Multicultural Advisory Council in 2008.
      The Council provides advice to the Minister for Immigration and Citizenship and
      the Parliamentary Secretary for Multicultural Affairs and Settlement Services on
      cultural diversity and social cohesion.
    • the release of the Australian Multicultural Advisory Council’s the People of Australia Statement in April 2010, which was welcomed by the
      Australian Human Rights Commission. In particular, the Commission supports
      recommendation three which calls for the development of a coordinated national
      anti-racism strategy.
    • funding of the Commission’s Community Partnerships for Human Rights
      (CPHR) Program under the Australian Government’s National Action Plan
      to Build on Social Cohesion, Harmony and Security
      . The Commission received
      $ 4.1M funding over a four-year period from the Department of Immigration and
      Citizenship. The program aimed to increase social inclusion and counter
      discrimination and intolerance directed at Australia’s Muslim communities.
      The program included eight projects, which focus on a range of areas including
      research, community education and participation and resource development.

5.3 Asylum
seekers

  1. The Australian Human Rights Commission has welcomed positive reforms in the
    immigration area since the current Australian Government took office in late
    2007. These have included:

    • the closure of the Australia’s offshore immigration detention centres
      in Nauru and Papua New Guinea
    • the abolition of the detention debt regime for most immigration
      detainees
    • the removal of the so-called ’45 day rule’ which restricted
      access to work rights for asylum seekers on bridging visas, and the introduction
      of a ‘New Directions in Detention’ policy.
  2. The Commission particularly welcomed the abolition of the Temporary
    Protection Visa (TPV) system in 2008. In its 2005 Concluding Observations on
    Australia, the Committee raised concerns about the TPV system, under which
    people in respect of whom Australia had protection under the Refugee Convention
    were issued with three-year temporary visas with limited entitlements including
    no right to family
    reunion.[7]

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6 Issues relating to
Indigenous peoples (Aboriginal and Torres Strait Islander peoples)

6.1 Constitutional
protection against racial discrimination (ICERD Articles 1,2,5(a),6 and
Declaration Article 2)

  1. The Australian Human Rights Commission is concerned that the rights of
    Indigenous peoples are neither recognised nor formally protected in the
    Australian Constitution.
  2. Nor does the Australian Constitution proscribe the enactment of racially
    discriminatory laws, such as the Native Title Amendment Act 1998 (Cth)
    and the Northern Territory Emergency Response legislation.
  3. Further:
    • Section 25 of the Constitution contemplates the exclusion of voters
      on racial lines
    • The amended section 51(xxvi) of the Constitution, (the ‘races
      power’) has been interpreted by the High Court to allow for the
      Commonwealth to make both beneficial and adverse laws for Aboriginal
      people.[8]
    • In the case Kruger v Commonwealth (FN: (1997) 190 CLR 1) the
      High Court has also interpreted section 122 of the Constitution (the
      ‘Territories power’), which provides for the Commonwealth Parliament
      to make laws for the government of territories, to be unfettered by a general
      requirement of equality before the law or any express or implied rights in
      the Constitution.[9]
  1. A constitutional guarantee of equality before the law and freedom from
    discrimination would provide comprehensive protection against racial
    discrimination
  2. Constitutional reform is also considered by many to be part of the
    unfinished business of reconciliation.[10]In particular, many consider that the first nations status of Indigenous
    peoples should be recognised in the preamble to the Constitution.

Recommendation 10: That the Australian Government commence a
constitutional process, with the active engagement of Indigenous peoples, for
the recognition of Indigenous peoples in the preamble; removal of section 25 of
the Constitution and its replacement with a clause guaranteeing equality before
the law and
non-discrimination.[11]

6.2 Implementing
the Declaration

  1. The Commission welcomed the Australian Government’s formal endorsement
    of the Declaration in April 2009. The Declaration has become increasingly
    prominent in Australia’s legal and policy landscape, with references to
    the Declaration being made in
    Parliament,[12] parliamentary
    committee reports,[13] court
    decisions[14] and in policies
    developed by Indigenous
    NGOs.[15]
  2. However, the Government has yet to develop an action plan for the
    ‘full realization of the provisions of [the] Declaration’ (art 41).
    Such an action plan should be developed with the active participation of, and in
    full partnership with, Aboriginal and Torres Strait Islander peoples.
  3. The Commission supports the use of the Declaration as a guide for
    interpreting Australia’s obligations under the ICERD as they relate to
    Indigenous peoples. This is consistent with the interpretative mandate of the
    Committee outlined in the Vienna Convention on the Law of Treaties and the ICERD
    Committee’s recommendation to the United States of
    America.[16]
  4. Further, the Commission considers that the Declaration should be used to
    frame the Government’s engagement with Indigenous peoples. In particular,
    the Commission considers that the Australian Government should consult and
    cooperate with Aboriginal and Torres Strait Islander peoples in order to obtain
    their free, prior and informed consent before adopting and implementing
    legislative or administrative measures that may affect them.

Recommendation 11: That all legislation, policies and
programs be reviewed for consistency with the rights affirmed by the
Declaration.[17]

6.3 Ratification of
international human rights instruments

Recommendation 12: That the Australian the Government ratify the ILO
Convention No. 169 (1989) concerning Indigenous and Tribal Peoples in
Independent Countries.[18]

Recommendation 13: That the Australian Government sign and ratify the
Optional Protocol on Economic Social and Cultural
Rights.[19]

6.4 Indigenous
disadvantage (ICERD Article 5 and Declaration Articles 3,4,19,21)

  1. There continues to be a significant gap between Aboriginal and Torres Strait
    Islander peoples and non-Indigenous peoples in terms of the realisation of human
    rights and fundamental freedoms. Indigenous peoples face a comparative
    disadvantage and discrimination across a range of indicators including life
    expectancy and health, housing and homelessness, education, welfare, employment,
    incarceration rates and child abuse and family violence. See Annex 3 for
    indicators of Indigenous disadvantage.
  2. As discussed above (para 13), the Government has set targets to address this
    disadvantage under the COAG National Integrated Strategy for Closing the Gap in
    Indigenous Disadvantage, supplemented by budget commitments under the National
    Indigenous Reform Agreement and associated National Partnership
    Agreements.[20]
  3. However, the Special Rapporteur on the situation of human rights and
    fundamental freedoms of indigenous people (‘Special Rapporteur on
    indigenous peoples’) noted in his 2010 report on Australia
    that:

Despite the Government’s attention to indigenous
issues, there is a continued need to develop new initiatives and reform existing
ones, in consultation and in real partnership with indigenous peoples, to
conform to international standards requiring genuine respect for cultural
integrity and
self-determination
.[21]

  1. The Commission supports the recommendations of the Special Rapporteur on
    indigenous peoples that governments undertake greater consultation and
    engagement with Indigenous peoples concerning the design and delivery of
    government programs and services to address Indigenous
    disadvantage.[22]

6.5 Indigenous health
(ICERD 5 and DRIP 24)

  1. The Commission has welcomed the substantial financial commitments for
    Indigenous health made under the COAG National Indigenous Reform Agreement and
    the COAG National Integrated Strategy for Closing the Gap in Indigenous
    Disadvantage. The Commission has also welcomed the establishment of a new peak
    body and the provision of additional funding for Aboriginal and Islander health
    workers, and the establishment of Pathways to Community Control under the
    Northern Territory Aboriginal Health Forum, which provides a road map for
    Governments and Aboriginal controlled health community organisations to work
    together as part of the long term vision of Closing the Gap.
  2. The Commission notes the Government’s positive progress towards the
    COAG target of halving the gap in mortality rates for Indigenous children under
    five years, within a decade. However, the Commission notes with concern the
    rising level of low birth weight babies which is clearly associated with
    under-five mortality and does not bode well for the future.
  3. The Australian Government, the states of Victoria, Queensland, Western
    Australia and the Australian Capital Territory have signed the Close the Gap
    Statement of Intent. In doing so, they committed to develop a comprehensive,
    long-term plan of action to achieve equality of health status and life
    expectancy between Aboriginal and Torres Strait Islander peoples and
    non-indigenous Australians by 2030. Other commitments include:

    • ensuring primary health care services and health infrastructure for
      Aboriginal and Torres Strait Islander peoples, which are capable of bridging the
      gaps in health standards, by 2018
    • ensuring the full participation of Aboriginal and Torres Strait Islander
      peoples and their representative bodies in all aspects of addressing their
      health needs
    • working collectively to systematically address the social determinants that
      impact on achieving health equality for Aboriginal and Torres Strait Islander
      peoples.
  4. However, there is currently no national plan of action to implement these
    commitments. The National Indigenous Reform Agreement and the Integrated
    Strategy for Closing the Gap in Indigenous Disadvantage do not constitute a
    comprehensive national action plan on health. For instance, the national
    partnership agreements expire around 2015, which leaves a 15-year gap in
    planning until 2030.
  5. The Special Rapporteur on the right of everyone to the enjoyment of the
    highest attainable standard of physical and mental health observed
    that:

Undivided support and implementation of the Close the Gap Campaign is crucial
to ensuring capacity building and empowerment of [I]ndigenous communities to
take a leadership role in realising the right to health for all
Australians.[23]

Recommendation
14: That the Australian Government develop a comprehensive, long-term plan of
action, that is targeted to need, evidence-based and capable of addressing the
existing inequities in health services, in order to achieve equality of health
status and life expectancy between Aboriginal and Torres Strait Islander peoples
and non-indigenous Australians by 2030.
  1. Aboriginal and Torres Strait Islander peoples experience disproportionately
    higher levels of hearing impairment and deafness when compared with the
    Australian community generally. This limits their rights to health, as well as
    related rights to education, livelihood and participation. Their exclusion can
    manifest in disadvantage and discrimination in the spheres of health, education,
    training, employment, the criminal justice system and social and cultural
    participation.
  2. The Senate Community Affairs References Committee has recommended the
    Australian Government address the educational and employment needs of Indigenous
    peoples with hearing loss and provide adequate support within the criminal
    justice
    system.[24]
Recommendation
15: That the Australian Government address the discrimination experienced by
Aboriginal and Torres Strait Islander peoples with hearing impairment and
deafness on the basis of their race and disability.

6.6 Indigenous
education and employment (ICERD Article 5 and Declaration Article 13,
14)

  1. Apart from some notable exceptions, most government and non-government
    schools in Australia provide a Western model of
    education.[25]Assimilation and the
    forces of mainstream culture mean that the revitalisation of Indigenous language
    and culture occurs at the margins of mainstream education, if at all.
  2. Bilingual education is considered to be one way to keep Indigenous language
    and culture alive.[26]Of the 9 581
    schools that exist in Australia today, nine schools are bilingual schools,
    instructing students in their first Indigenous language. Evidence from an
    Australian study demonstrates marginally better English literacy outcomes for
    students from bilingual schools at the end of primary school compared with
    students from non-bilingual schools with similar languages, demography and
    contact histories.[27]
  3. In 2009 the Northern Territory Government implemented a policy which makes
    it mandatory for schools to begin each school day with four hours of English
    literacy. The policy is likely to dismantle bilingual education and potentially
    endanger some of the remaining Indigenous
    languages.

Recommendation 16: That the Government take urgent
action to support the reinstatement of bilingual education approaches in
schools, and safeguard the future of bilingual education through binding
agreements with state and territory governments and the provision of ongoing
resources to support its
implementation.[28]

  1. In 2007 COAG committed to halve the gap in employment outcomes between
    Indigenous and non-Indigenous Australians within a decade. In February 2009,
    COAG signed the National Partnership Agreement for Indigenous Economic
    Participation to significantly improve opportunities for Indigenous people to
    engage in private and public sector
    jobs.[29]
  2. The Australian Government put in place reforms for the cessation of the
    Community Development Employment Projects
    (CDEP)[30] program in urban and
    major regional locations and the expansion of Structured Training Employment
    Projects brokerage services as an alternative as of 1 July
    2009.[31] The Commission’s
    concerns with these reforms have included:

    • a number of productive community roles and projects may cease to continue
      where these cannot be transformed into mainstream employment opportunities
    • a risk that Indigenous peoples become permanently isolated from the labour
      market in urban and regional areas
    • a risk that overall unemployment rates among Indigenous peoples will
      increase.
  3. The Commission’s concerns appear to have been unfortunately borne out
    as the estimates for Indigenous unemployment between 2008 and 2009 increased by
    30% rising from 27 100 to 35
    400.[32]

6.7 Indigenous
languages (ICERD Article 5 and Declaration Articles 13,14)

  1. The Commission has welcomed the Government adoption of a national policy for
    the preservation of Indigenous languages (Indigenous Languages - A National
    Approach 2009
    ). However, the Commission notes three major challenges that
    need to be addressed to ensure the successful implementation of this policy:

    • different levels of governments in Australia need to be held to a consistent
      position on Indigenous language policy and action.
    • coordinating intra-government activity and ensuring quality control because
      language preservation requires interaction between multiple portfolio areas,
      including early childhood development services, employment, school education,
      higher education and research services.
    • stretching the limited resources ($9.3 million for the financial year
      2008-09) to address a critical and complex language situation across the
      nation.

Recommendation 17: That the Australian
Government:

  • Honour the commitment of Indigenous Languages - A National
    Approach
    to establish a national Indigenous languages body with functions
    and responsibilities similar to those of the Māori Language Commission.
  • agree to resource an ongoing plan of action for the preservation and
    promotion of Indigenous languages as recommended by the national Indigenous
    languages body.
  • Become a signatory to the Convention for the Safeguarding of the
    Intangible Cultural Heritage (2003).
  • through COAG, develop agreements to ensure consistency and compliance
    with Australia’s Indigenous Languages - A National
    Approach
    .[33]

6.8 Indigenous
housing and homelessness (ICERD Article 5 and Declaration Articles
21,23)

  1. According to the 2006 Census, 4116 Indigenous people were homeless on Census
    night.[34]In 2006, the Special
    Rapporteur on adequate housing identified that there was an Indigenous housing
    crisis in Australia, which is likely to worsen in coming years as a result of
    the rapid rate of population growth in Indigenous
    communities.[35]
  2. The Commission has welcomed the Australian Government’s response to
    make the reduction of homelessness a national
    priority[36] and the recommendation
    of the House of Representatives Standing Committee on Family, Community, Housing
    and Youth that new housing legislation be
    enacted.[37] Further the COAG
    National Partnership Agreement on Remote Indigenous Housing aims to address:
    significant overcrowding, homelessness, poor housing conditions and the severe
    housing shortage in remote Indigenous
    communities.[38]
  3. However, the Australian Government has made funding for housing under this
    COAG agreement conditional upon:

    • secure land tenure being settled
    • the relevant state / territory government ensuring provision of standardised
      tenancy management and support for all Indigenous housing in remote areas
      consistent with public housing standards of tenancy management including
      through, where appropriate existing service providers
    • the relevant state / territory government developing and implementing land
      tenure arrangements to facilitate effective asset management, essential services
      and economic development opportunities.
  4. These conditions risk reducing the capacity for Indigenous peoples and
    Indigenous organisations to be involved in the decision-making and management of
    Indigenous housing on Indigenous lands.
  5. The Commission supports the Special Rapporteur on indigenous peoples’
    recommendation in relation to housing
    programs.[39]

Recommendation
18: That housing programs should avoid imposing or promoting housing
arrangements that would undermine Indigenous people’s control over their
lands; and should be administered by Indigenous community controlled
institutions.[40]

6.9 Family
violence and other race and gender issues relating to Indigenous women (ICERD
Article 5 and Declaration Article 22)

  1. The Australian Government’s National Plan to Reduce Violence Against
    Women and Children (the National Plan) identifies a number of measures
    specific to Indigenous
    communities.[41] The Government has
    agreed to:

    • reduce overcrowding in Aboriginal and Torres Strait Islander
      Communities
    • fund healing centres for Indigenous communities.
  2. Given the increasing levels of incarceration of Indigenous peoples
    generally, their over-representation in the criminal justice system and high
    level of recidivism, any sustained response to family violence should also
    provide culturally appropriate offender rehabilitation programs.
  3. The Commission’s report on Ending Family violence and Abuse in
    Aboriginal and Torres Strait Islander Communities
    also highlights the need
    to support Indigenous community initiatives and networks, human rights
    education, government action, and robust accountability and
    monitoring.[42]
  4. During 2007 and 2008, the Commission designed and delivered a training
    program to prepare Community Legal Education workers for employment in Family
    Violence Prevention Legal Services. The training program focused on community
    development approaches to family violence prevention. Programs of this nature
    are an important means of strengthening the capacity of Indigenous workers to
    expand the education and understanding among Indigenous communities of the legal
    contexts of family violence. The Government has ceased funding the delivery of
    this training program.
  5. Policies and programs aimed at preventing violence against Indigenous women
    and children must be designed and developed with the input of Indigenous women
    and children. Indigenous men also have a role in this process and should be
    engaged in addressing the causes of violence as well as the solutions.
    Prevention activity in the form of community development and education is
    critical to break the cycle of intergenerational violence that afflicts so many
    Indigenous communities.
Recommendation 19: That the Australian
Government continue to fund community education and community development
programs aimed at preventing family violence in Indigenous communities.

6.10 Indigenous
peoples and the criminal justice system

  1. High levels of Indigenous imprisonment have continued to occur since the
    1991 Royal Commission into Aboriginal Deaths in
    Custody.[43]Since 1996 there has
    been a 48 percent increase in Indigenous
    imprisonment.[44]
  2. Nationally, Indigenous adults are 13 times more likely to be imprisoned than
    non-Indigenous people and Indigenous juveniles are 28 times
    more likely to be placed in juvenile detention than their non-Indigenous
    counterparts.[45]
  3. To address over-representation, the Social
    Justice Commissioner has advocated that governments adopt a criminal justice
    policy approach based on ‘justice reinvestment’. Under this
    approach, money that would have been spent on imprisonment is reinvested in
    programs and services that address the underlying causes of crime in communities
    where there is a high concentration of offenders. Justice reinvestment still
    retains prison as a measure for dangerous and serious offenders but actively
    shifts the culture away from imprisonment and starts providing community
    services that prevent offending.
  4. Results to date from overseas programs show promising results in terms of
    reductions in the prison population and prison expenditure, as well as
    significant investments in preventative and rehabilitative community based
    programs.
  5. The Senate Legal and Constitutional Affairs Committee recommended
    governments develop and fund a justice reinvestment pilot program for the
    criminal justice system.[46] Similarly a review of juvenile justice in New South Wales recommended the
    government adopt a justice reinvestment approach in juvenile
    justice.[47]

Recommendation
20: That:

  • the Australian Government, through COAG, set criminal justice targets
    that are integrated into the Closing the Gap agenda.
  • the Standing Committee of Attorneys General Working Party identify
    justice reinvestment as a priority issue under the National Indigenous Law and
    Justice Framework, with the aim of conducting pilot projects in targeted
    communities in the short term.
  • all state and territory governments consider justice reinvestment in
    tandem with their plans to build new prisons.
  • a percentage of funding that is targeted to increasing prison beds be
    diverted on a trial basis to communities where there are high rates of
    Indigenous offenders.
  1. Mandatory sentencing laws are still in place in Western Australia and the
    Northern Territory.[48] These laws
    have resulted in situations of injustice, with individuals receiving sentences
    that are disproportionate to the circumstances of their
    offending.[49] Such policies are not
    only ineffective in deterring crime and rehabilitating offenders, but also
    costly and manifestly unjust.[50]
  2. 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.[51]

6.11 Northern
Territory Emergency Response (NTER)(ICERD Articles 1,2 and Declaration Articles
2,3,21,23)

  1. The Commission has raised concerns about the Northern Territory National
    Emergency Response (NTER)[52] in a
    number of parliamentary submissions and in consultations with Australian
    Government representatives.[53] International human rights bodies and experts have similarly raised concerns
    with the suspension of the RDA and the lack of conformity with Australia’s
    obligations under human rights
    treaties.[54]
  2. In 2009 following consultations with the prescribed communities in the NT,
    the Australian Government introduced Bills to reinstate the RDA and re-design
    some of the NTER measures.[55] The
    Bills were reviewed in a Senate Inquiry which recommended the Bills be passed,
    although dissenting reports recommended a range of amendments to the Bills. The Social
    Security and Other Legislation Amendment (Welfare Reform and Reinstatement of
    Racial Discrimination Act) Act 2009
    (the Act) was passed on 22 June
    2010.
  3. Ways in which the Act improves the compliance of the NTER with human rights
    standards include:

    • lifting of the suspension of the RDA for the NTER legislation
    • redesigning the income management measures so that they are not applied on a
      racially discriminatory basis.
    • enabling a shift from the blanket imposition of alcohol bans to restrictions
      that are tailored to the needs of communities.
  4. However, the Commission has
    noted[56] that the Act still retains
    some practical limitations on the reinstatement of the RDA and full compliance
    with international human rights obligations. These limitations include:

    • the absence of notwithstanding clauses in the Act. The effect of this, in
      conjunction with provisions relating to its retrospective application, is that
      any remaining discriminatory measure under the NTER cannot be challenged by the
      ‘reinstatement’ of the RDA because being the later legislation, the
      NTER legislation will prevail. As a result the Commission is concerned that the
      discriminatory compulsory grant of five-year leases are protected from challenge
      under the RDA.
    • The Government has indicated that it considers the existing and redesigned
      NTER measures to be ‘special measures’ in accordance with the RDA,
      but these may not be compliant with the requirements of a special measure under
      the RDA.

      In November 2009, the Commission issued Draft
      guidelines for ensuring income management measures are compliant with the Racial
      Discrimination Act
      (Draft Guidelines). The Draft Guidelines set out a
      practical approach to developing a special measure that is compliant with the
      RDA. Accordingly, the redesigned measures will not meet the requirements of a
      special measure where:

    - the consultations do not meet the standard of consultation and consent of
    the affected group

    - there is insufficient current and credible evidence which shows that the
    measure will be effective

    - there are alternative means of achieving the objective that are not as
    restrictive of affected persons’ human rights

    - there are inadequate mechanisms for monitoring and evaluating the measure
    to ensure if it is working effectively and if its objective has been
    met.

    The Commission is concerned that there has been a failure to
    require consent for measures that are intended to be ‘special
    measures’ for the purposes of the RDA and Australia’s human rights
    obligations. For example, the alcohol restrictions measure in the NTER have not
    been developed with adequate community consultation and do not meet the
    requirements of consent for a special measure. Also, to be consistent with the
    RDA, measures relating to the management of land must be taken with the consent
    of the landowners. The redesigned five-year leases therefore remain inconsistent
    with the RDA in this respect.[57]

    In the Commission’s view, it is preferable that measures that may limit
    the rights of people of a particular racial group are designed so as to be
    non-discriminatory under the RDA, rather than justified as special measures. The
    Commission has serious concerns about the inappropriate classification of
    State actions as ‘special measures’, particularly in relation to
    measures that intentionally discriminate on the basis of race and which are
    formulated without the participation and the acceptance of Indigenous
    peoples

    • The broad categories of ‘disadvantaged youth’ and
      ‘long-term welfare payment recipients’ are not sufficiently targeted
      to comply with a human rights based approach to income management. The
      Commission has noted that the preferred features for an income management
      measure that would make it consistent with international human rights standards
      include:

      - voluntary/ opt-in approaches - rather than automatic quarantining or an
      exemption approach

      - a last-resort approach for targeted risk areas such as child protection
      (that is supported by case management and support services), akin to the Family
      Responsibilities Commission model in Queensland - rather than automatic
      quarantining and

      - a defined period of income management, where the timeframe for compulsory
      quarantining is proportionate to the context.

    • The Commission is concerned that Indigenous peoples will be more vulnerable
      to being subjected to income management under these categories than
      non-Indigenous peoples. This risk stems from the limited access to education,
      training and employment for Aboriginal people, particularly in remote
      communities in the Northern Territory, and the consequent high proportion of
      Aboriginal people accessing welfare payments for extended periods. There is also
      a large Aboriginal youth population in the Northern Territory, many of whom also
      have difficulties accessing education, training and employment.
    • The Commission is also concerned that including domestic violence as a
      trigger for being income-managed as a ‘vulnerable welfare payment
      recipient’ under the redesigned income management scheme, could place
      women in situations of domestic violence at greater risk of harm. Centrelink
      Social Workers currently provide women who have experienced domestic violence
      with information on entitlements and services available. Including domestic
      violence as a trigger for income management could discourage women experiencing
      domestic or family violence from seeking assistance from Centrelink and
      consequently place women at greater risk, and result in under-reporting of
      domestic violence.
    • To justify the continuation of the NTER there would need to be clear
      evidence that the NTER is yielding results in terms of its stated objects. The
      Special Rapporteur on indigenous peoples has noted that ‘to date, the
      evidence in this respect is at best ambiguous... [and] even assuming there have
      been some improvements, there is no evidence that the rights-impairing
      discriminatory aspects of the NTER have been
      necessary’.[58]The Commission
      emphasises the need for the government to develop proper monitoring and
      evaluation systems to ensure adequate evidence is collated on the effectiveness
      of the
      NTER.[59]

Recommendation 21: That, to bring the NTER into full compliance with
human rights standards, the NTER be amended as follows:

  • The categories of ‘disadvantaged youth’ and ‘long-term
    welfare payment recipients’ be reformulated to apply on a case-by-case
    basis .
  • Domestic violence not be included as an indicator for ‘vulnerable
    welfare payment recipient’ under the redesigned income management
    scheme
  • The capacity to compulsorily acquire any further five-year leases under
    Part 4 of the NTER Act be removed and the Government commit to obtaining the
    free, prior and informed consent of traditional owners to enter into voluntary
    lease arrangements for existing compulsory lease arrangements.
  • The government move towards further amendments of the NTER to incorporate
    notwithstanding clauses in the legislation and ensure all measures that are
    intended to be special measures comply with the
    RDA.

Recommendation 22: That the Australian
Government:

  • supplement any income management scheme with additional support programs
    that address the rights to food, education, housing, and provide support in the
    form of financial literacy/budgeting skills.
  • ensure the participation of Indigenous peoples in developing,
    implementing and monitoring alcohol management plans and ensure all alcohol
    management processes are consistent with the RDA. Alcohol restrictions should be
    supplemented by investment in infrastructure in the health and mental health
    sectors (including culturally appropriate detoxification facilities) and
    investment in culturally appropriate community education programs delivered by
    Indigenous staff.

 

6.12 Native
Title (ICERD Articles 2, 5 and Declaration Articles 3,10,11,20,25,26,
27,28,29,32)

  1. While the Commission welcomes the Government’s commitment to improving
    the operation of the native title system, recent legislative reforms do not
    overcome the system’s
    limitations.[60] For example,
    Indigenous peoples bear the burden of demonstrating continuity, from sovereignty
    to the present:

    • of their society
    • in the observance of traditional laws and customs
      and
    • in the content of those laws and customs, to prove native title. This is
      despite the impact of
      colonisation.[61]
  1. The Committee expressed several concerns about the native title system in
    its 2005 Concluding Observations on
    Australia.[62]The
    Government’s Report does not sufficiently address the Committee’s
    concerns that:

    • the 1998 amendments to the Native Title Act 1993 (Cth) rolled back
      protection of native title, and provide legal certainty for Government and third
      parties at the expense of native title
    • the burden of proof for Indigenous peoples in Australia continues to be a
      significant barrier to achieving a determination that native title
      exists.
Recommendation 23: That the Australian
Government take immediate steps to review the native title system and to
implement measures to address the above concerns. Such measures should include
amendments to the Native Title Act to provide for presumptions in favour of
native title claimants, including a presumption of continuity in the
acknowledgement and observance of traditional law and custom and of the relevant
society.[63]

6.13 Homelands
(ICERD Article 5 and Declaration Articles 3,11,12,20,21)

  1. Homelands are located on Aboriginal ancestral lands with cultural and
    spiritual significance to the Aboriginal people who live there. Homelands
    provide a healthy alternative living environment for Aboriginal people who want
    to avoid some of the problems that can be associated with living in larger
    regional centres.[64]Due to the
    relatively small populations of Homelands and their dispersal over large
    unpopulated regions homeland populations have been under-resourced and
    underfunded for many years.
  2. Current government policy prioritises service delivery to 15-20 selected
    towns across the NT. This limits the delivery of services in homeland
    communities to existing homelands. No funding is being provided to construct
    housing on homelands, and most services are being made available through hub
    towns.[65]This could result in
    homeland communities being unable to access adequate housing, water, sanitation,
    power, education, and health services within their homelands and having to move
    into larger cluster communities to access these services.

Recommendation 24: That the Australian and Northern Territory
governments commit to supporting homelands through:

  • reviewing, developing and implementing homeland policies with the active
    participation of representative leaders from homeland communities
  • providing funding and support for homeland communities in all states and
    territories through the COAG National Indigenous Reform Agreement and associated
    National Partnership
    Agreements.[66]

6.14 Stolen
Generations (ICERD Article 6 and Declaration Article 8)

  1. The Bringing them home report of the National Inquiry into the
    Separation of Aboriginal and Torres Strait Islander Children from Their Families
    (1997) document the experiences of the Stolen Generations, who were forcibly
    removed from their families under the guise of welfare and makes recommendations
    for reparation.[67]
  2. Aside from the National Apology and the establishment of the Aboriginal and
    Torres Strait Islander Healing Foundation, many of the other recommendations for
    reparation remain largely outstanding, including the establishment of
    compensation payment schemes for the Stolen Generations and their families. The
    only compensation scheme established for the Stolen Generations to date has been
    in Tasmania.
Recommendation 25: That the Commonwealth, through
the Councils of Australian Governments, engage with State and Territory
governments to develop a consistent approach with joint funding mechanisms in
the provision of financial redress for the Stolen Generations.

6.15 Stolen
Wages (ICERD Article 6 and Declaration Article 8)

  1. Schemes have been established in Queensland and New South Wales to
    compensate Indigenous peoples for the withholding, non-payment and underpayment
    of wages under the control of government. Such schemes have not been established
    in other states or territories.
  2. In December 2006 the Senate Standing Committee on Legal and Constitutional
    Affairs recommended that governments provide unhindered access to archives for
    the purposes of researching the stolen wages issue as a matter of urgency. They
    also recommended that funding be made available for education and awareness in
    Indigenous communities, as well as for preliminary legal research, into stolen
    wages issues.[68] These
    recommendations have not been adopted or
    implemented.
Recommendation 26: That Stolen Wages compensation
schemes be established in other states and territories as appropriate.

^top

7 Issues relating to migrants and ethnic
minorities

7.1 National
Multicultural Policy (ICERD Article 2)

  1. Respect for racial equality and diversity is a key element of robust
    multicultural democracies and the international human rights framework.
    Australia has a proud history of multiculturalism that has, in general terms,
    been managed with success in fostering a cohesive and inclusive society.
    However, as this report outlines, emerging and established ethnic communities in
    Australia still experience significant challenges in relation to their social
    and economic participation, safety and health and wellbeing.
  2. An evidence based and properly resourced national multicultural policy is
    critical in regard to (I) guiding whole of government policy and program
    development (II) improving the access and equity of people from culturally and
    linguistically diverse backgrounds and (III) fostering a tolerant and cohesive
    society.
  3. Australia’s last national multicultural policy, United in Diversity
    2003-2006
    expired in 2006. Though the current Australian Government
    committed to developing a new federal multicultural policy in 2007, progress has
    been markedly slow.

Recommendation 27: That the Australian
Government consider the following in the development of a national multicultural
policy:

  • that it should be based on extensive community consultation
  • that it should be properly linked with the Australian Human Rights
    Framework,[69] the Human Rights
    Action Plan and the Social Inclusion
    Agenda[70]
  • that it adopts a broad definition of the ‘multicultural
    community’ in Australia that genuinely considers: newly arrived migrants,
    international students, temporary and seasonal migrant workers, people from
    refugee backgrounds and established ethnic communities
  • that it addresses the issue of religious diversity and freedom of
    religion and belief
  • that systems of auditing, benchmarking, compliance and evaluation are
    created.

7.2 Persistence of
racist attitudes (ICERD Article 2)

  1. The Australian Human Rights Commission is a partner in the Challenging
    Racism Project.[71] The research
    began in 2007 and will be finalised in late 2010. The project is being led by
    Associate Professor Kevin Dunn, University of Western Sydney and research
    partners include: Macquarie University, the University of Melbourne, the
    University of South Australia and Murdoch University.
  2. The purpose of the national research project is to:
    • map (1) racist attitudes and (2) experiences of racism at the local level
      across Australia
    • develop current typologies of racism across Australia
    • develop context sensitive anti-racism strategies to respond to local
      variations of racism and intolerance across Australia.
  3. The research was conducted through national telephone surveys and some of
    the key findings were that:

    • around 85 percent of respondents believe that racism is a current issue in
      Australia
    • around 20 percent of Australians had experienced forms of race-hate talk
      (verbal abuse, name-calling, racial slurs, offensive gestures etc)
    • around 11 percent of respondents identified as having experienced race-based
      exclusion from their workplaces and/or social activities
    • Seven percent of respondents identified as having experienced unfair
      treatment
    • Six percent of respondents reported that they had experienced physical
      attacks based on their race and/or traditional dress.
    • race typologies and racist behaviour varies across local government areas
      and requires context sensitive/specific
      responses.[72]
  4. The Mapping Cohesion Report (Scanlon Foundation surveys) found that
    one in ten Australians experienced discrimination based on the grounds of
    ethnicity or religion during 2006-2007. The Mapping Cohesion Report 2009
    found that one in ten Australians hold strongly negative views on cultural
    diversity and immigration.[73] Around six percent of respondents experienced discrimination on a continuing
    basis, that is, at least once per
    month.[74]
  5. In the Scanlon Foundation local surveys over half of the respondents whose
    first language was Mandarin, Cantonese or Vietnamese report experience of
    discrimination periodically over the course of their
    lives.[75]
  6. In 2008-2009 the Australian Human Rights Commission received 396 complaints
    under the RDA, including 50 racial hatred
    complaints.[76] This data cannot be
    considered as reliably indicative of people’s experiences of racial
    discrimination in Australia.
  7. The data emerging from the Challenging Racism Project and the findings from
    the Scanlon Foundation surveys is concerning given the significant evidence
    links race-based discrimination and racism to ill health, reduced productivity,
    reduced life expectancy and
    morbidity.[77] Current evidence
    further suggests that race-based discrimination and exclusion impacts negatively
    on families and family life and local communities, with serious social and
    economic costs.[78]
Recommendation 28: That the Australian Government develop a
coordinated, national approach to anti-racism that is linked to the national
multicultural policy framework. This recommendation is in accordance with the
Durban Declaration and Program of Action, which calls on states to develop
comprehensive national action plans to eradicate racism, racial discrimination,
xenophobia and related intolerance.

7.3 International
student safety (ICERD Article 5)

  1. The Australian Human Rights Commission welcomes the Australian
    Government’s review of the Education Services for Overseas Students
    (ESOS) Act 2000
    but notes its limited terms of reference focusing on the
    regulation of international education service
    providers.[79]
  2. The Australian Human Rights Commission welcomes the Australian
    Government’s commitment to developing a National International Student
    Strategy but is disappointed with (I) the slow progress that has been made and
    (II) the limited parameters of the strategy.
  3. In recent months the Australian Human Rights Commission has expressed
    ongoing concerns regarding the safety of international students in Australia and
    the vulnerability factors that can cause them to experience violence.
  4. On 31 March 2010, the Academy of the Social Sciences, the Australian Human
    Rights Commission and Universities Australia held the Racism and the Student
    Experience Policy Research Workshop
    . The purpose of the Workshop was to
    assess available data from social science research to assist with the prevention
    of racially motivated crimes against international students and improve
    international student safety.
  5. The current international student population in Australia has grown rapidly
    in recent years. International student enrolments grew from under 188,000 in
    2000 to 631,000 in 2009.[80] Australia has a higher proportion of international students (as part of its
    total tertiary student population) than any other country in the
    world.[81] The Workshop participants
    agreed that while the growth of international education has been a positive
    development for Australia, there needs to be a proportional investment in
    international student support services.
  6. The Workshop participants agreed that segments of the international student
    population in Australia are at risk of experiencing multiple forms of
    discrimination. They also agreed that the international student population in
    Australia has a discernable set of human rights, including their rights to
    security of person, non-discrimination, housing, employment discrimination and
    information.
  7. Participating academics discussed the recent high profile attacks on
    international students in Australia. A clarification was made that not all
    attacks are on students and certainly not all attacks have been on overseas
    students. Many Australians of ‘Indian’ and ‘Sri Lankan’
    ‘appearance’ have also been attacked. Participating academics noted
    that there is no official national data on racially motivated crime. There are
    also significant gaps in relevant national survey data, for example the
    Australian Bureau of Statistics Household Survey and the Victims of
    Crime Survey
    . When considering how to determine whether a crime is racially
    motivated, participants noted the following:

    • incidents range across a spectrum
    • in some cases racism is a clear motivator for a particular crime
    • in some cases racism is not a clear motivator but still shapes a crime
    • in some cases racism can become an element of an existing dispute (use of
      racist language)
    • in some cases motivation is ambiguous
    • we don’t understand enough about the perpetrators
    • we need reform around the collection of policing
      data.
  8. Participants discussed the vulnerabilities that caused some people or groups
    of people to become subject to crime. Indian students on average tend to have
    less economic security than other international students and subsequently are
    exposed to high risk situations. Participants cited examples such as:

    • living in overcrowded and low income housing, often in lower socio-economic
      areas
    • working in precarious employment situations, for example having limited
      employment security and working late night shifts
    • travelling to and from work late at night on public
      transport.
  9. The Commission notes the findings from Safety of International Students
    in Metropolitan Melbourne
    study conducted by the Institute for Community,
    Ethnicity and Policy Alternatives, Victoria
    University.[82] The Institute
    surveyed one thousand domestic and international students and conducted in-depth
    interviews with student representative organisations, community police and other
    stakeholders. More than half of the international students surveyed identified
    that they found the city less safe than they had
    anticipated.[83] A number of
    factors were identified by students as safety threats including:

    • lack of access to safe and affordable housing
    • high risk employment
    • poor transport options
    • racism (most frequently risk factor identified by the surveyed
      students)
    • sexual harassment experienced by female international
      students
  10. The Commission also notes the findings from the International Student
    Security Study
    conducted by Professor Simon Marginson, University of
    Melbourne and Professor Chris Nyland, Monash
    University.[84] This research is the
    largest interview based study (same size 200) of international students in
    Australia and it found that:

    • many of the respondents reported negative experiences in dealing with the
      Department of Immigration and Citizenship (time delays, non-transparent
      procedures and experiences of discrimination and hostile treatment)
    • just under two thirds of respondents experienced loneliness or isolation
      during their stay in Australia
    • nine out of ten respondents had friendships with other international
      students, while only 57 percent of respondents had even casual friendships with
      local students
    • fifty percent of respondents had experienced hostility or prejudice during
      their stay in Australia. Most frequently, respondents reported incidents of
      unprovoked abuse in public spaces such as on the street, in shopping centres or
      on public transport.

Recommendation 29: That the
Australian Government revisit the recommendations made in the Commissions Report
of National Inquiry into Racist Violence in Australia in
1991.[85]

Recommendation 30: That the Australian Government: (I) broaden the
parameters of the ESOS Act to include on campus student safety (II) language
foundations (III) social support.

Recommendation 31: That the COAG International Student Strategy provides a
regulatory framework that involves states, territories and local governments in
addressing issues relating to safety, accommodation, transport and
discrimination.

Recommendation 32: That the Australian Government compile national survey
data on international students in Australia, particularly in relation to income
and expenditure, housing experiences, employment discrimination and experiences
of violence and sexual harassment.

7.4 African
Australian communities (ICERD Articles 2,5)

  1. In 2007 the Australian Human Rights Commission designed a report focusing on
    the experiences of African Australians. The report, entitled In Our Own
    Words
    , has an accompanying compendium. This is the first piece of research
    that considers the everyday experiences from a national perspective within a
    human rights context.[86]
  2. In 2006, a total of 248,699 people born in Africa were living in
    Australia.[87] This figure
    represents 5.6 percent of Australia’s overseas born population and around
    one percent of the country’s total population.
  3. The majority of African Australians (72.6 percent) are from Southern and
    Eastern Africa, around 22.9 percent are from North Africa (including Sudan) and
    4.5 percent are from Central and West
    Africa.[88] Around 100,000 people
    were born in South Africa and other large communities include Zimbabwe (8.1
    percent), Sudan (7.7 percent), Mauritius (4 percent), Kenya (4 percent) and
    Ethiopia (2.3 percent).[89]
  4. The aims of the project were to:
    • identify what can help – and obstruct – the settlement and
      integration experiences of African Australians
    • suggest practical solutions to inform the development of policies, programs
      and services for African Australians
    • address some of the stereotypes about African Australians that have been
      raised in recent public debate and media reporting.
  5. The In Our Own Voices Report is the result of a three year research
    project that engaged directly with African Australian communities, partner
    agencies and other stakeholders.
  6. In the report, African Australian communities identified the following
    priority areas of action:

    • racism and discrimination
    • child protection and family violence
    • increasing legal literacy in and around family law.
  7. The Report also presents important findings in relation to employment and
    training, education, health, housing and engaging with the justice system and
    provides a number of best practice examples from around
    Australia.
Recommendation 33: That the Department of Immigration
and Citizenship and other government agencies consider the findings of the In
Our Own Voices Report
in (I) policy development processes (II) service
delivery improvements and (III) settlement services improvements.

7.5 Planning for
population growth

  1. The Australian Human Rights Commission welcomes the Australian
    Government’s recent appointment of a Minister for Sustainable
    Population.
  2. In 2010, a number of Australia’s human service agencies have been
    involved in discussions about immigration levels, population targets and
    ecological sustainability.
Recommendation 34: That the Minister
for Sustainable Population establish an Interdepartmental Committee across human
services and sustainability agencies to: (I) share research data, (II)
coordinate policy, (III) develop integrated approaches and (IV) provide
strategic advice around balancing immigration flows, population targets,
workforce planning, infrastructure and ecological sustainability.

7.6 Access to the
labour market (ICERD Article 5)

  1. The 2007 Labour Force Status and Other Characteristics of Recent Migrants
    Survey
    found the
    following:[90]
    • Almost four-fifths (79 percent) of recent migrants had a job at some time
      since arriving in Australia. Males were more likely to have had a job than
      females (89 percent compared to 70 percent).
    • Of the recent migrants who had found employment at some time since arriving
      in Australia, 36 percent reported having experienced difficulty finding their
      first job. Of those who experienced difficulty, the most commonly reported
      difficulties included: having a lack of Australian work experience or references
      (56 percent), language difficulties (35 percent) and having a lack of local
      contacts and networks (29 percent).
    • The overall labour force participation rate for recent migrants was 72
      percent, with males (87 percent) having a higher rate than females (59 percent).
      In comparison, the participation rate for the Australian-born population was 69
      percent. For males and females born in Australia, participation rates were 75
      percent and 62 percent respectively. The Australian Human Rights Commission
      notes that the above data precedes the onset of the global financial crisis.
      According to the International Organisation for Migration, workers from migrant
      backgrounds are among the most vulnerable in relation to job losses and poor
      treatment in the workplace.[91]
    • Recent migrants who were born in main English-speaking countries had a
      higher participation rate than those born in other than main English-speaking
      countries (81 percent compared to 69 percent). The highest participation rate
      amongst recent migrants was for those who held skilled visas (83 percent).
  1. The Labour Force Status and Other Characteristics of Recent Migrants
    Survey
    identifies language difficulties as a significant factor that impacts
    negatively on access to the Australian labour market. English language
    ability/language barriers should be included as an indicator under the lack of
    access to the job market section of the Compendium.
  2. The process for the recognition of overseas gained skills and qualifications
    should similarly be recognised as a significant barrier in relation to accessing
    the Australian labour market. The 2003 Review of Settlement Services for
    Migrants and Humanitarian Entrants
    report noted that skills recognition
    continues to be a major issue for newly arrived migrants/entrants. A number of
    more recent reports, including the Economic Impacts of Migration and
    Population Growth
    , identified the assessment process as requiring
    improvement to better enable the successful transition of migrants into the
    workforce.[92]
  3. Fifty percent of complaints made under the Racial Discrimination Act 1975 (the RDA) in 2008-2009 were in the area of
    employment.[93]

7.7 Health and well
being of people from culturally and linguistically diverse backgrounds (ICERD
Articles 5,7)

  1. Good health is one of the core capabilities that people need to participate
    well in Australia’s social and economic life.
  2. The Building on Our Strengths - A Framework to Reduce Race-Based
    Discrimination and Support Cultural Diversity in Victoria
    provides a
    critical assessment of the health based impacts of racial discrimination and the
    health benefits of supporting cultural
    diversity.[94]
  3. The Framework established links between self-reported race discrimination
    and poor health outcomes including: depression, psychological distress, stress
    and anxiety. The link between self-reported discrimination and
    depression/anxiety is significant because stress factors are identified as major
    contributors to disease burden. The framework also establishes probable links
    between self-reported race discrimination and poor health outcomes including:
    high blood pressure, heart disease, diabetes, obesity, alcohol misuse, substance
    misuse, peer violence and low birth weight.
  4. The Australian Bureau of Statistics measure health literacy levels across
    the Australian population using the Adult Literacy and Life Skills
    Survey
    . The survey is an OECD measure and is also used in eleven other
    countries. The survey was administered most recently in Australia in 2006.
  5. The 2006 data showed
    that[95]:

    • approximately 40 percent of all Australians have ‘adequate’
      levels of health literacy
    • 60 percent of all Australians have less than ‘adequate’ levels
      of health literacy
    • 6 percent of the Australian population enjoys high levels of health
      literacy
    • adequate levels of health literacy are enjoyed by 40.6 percent of 15-24 year
      olds in the Australian population. In comparison, 33.2 percent of people from
      culturally and linguistically diverse backgrounds aged between 15-24 years have
      adequate levels of health literacy
    • in the broader population 17.4 percent of 65-74 years olds have adequate
      health literacy levels in contrast to 3.4 percent of people from culturally and
      linguistically diverse backgrounds have adequate health literacy levels.
  6. There is an established relationship between literacy and poor health
    outcomes.[96] Good health literacy
    depends on at least basic reading and writing skills sufficient to enable
    everyday functionality.
  7. Cultural beliefs or barriers can be strong determinants of who accesses
    health services. Culture is strongly linked with health and well being. Culture
    can define how health and illness are perceived, experienced, described and
    managed at an individual level.[97]
  8. Poor English language proficiency is the most common barrier identified to
    accessing health information and services in Australia. People with limited
    English language ability may not access the health care system because they are
    not able to adequately explain their health complaint (or understand
    instructions provided by health care
    professionals).[98]
  9. The Australian Human Rights Commission notes that English language
    difficulty is a critical issue for new and emerging communities in particular.
    The limited availability of interpreters has been a persistent issue for people
    from migrant and refugee backgrounds in Australia. Issues that can cause limited
    access to interpreters include:

    • lack of usage, or improper usage by health services
    • limited number of interpreters who are able to provide adequate assistance
      where a complex health issue presents
    • excessively long waiting periods.
  10. Some women from migrant and refugee backgrounds experience compounding
    difficulties that may delay or prevent proper access to the health system.
    These compounding difficulties can include: a lack of English language
    competency, discrimination, limited mobility and limited income. Arabic women
    and women from other backgrounds may choose not to access health services or may
    access them less frequently because they are unable to see a female doctor.
  11. For reasons outlined above, the cross-cultural competence of service
    providers and the availability/usage of interpreters should be considered in
    measuring (I) the accessibility of services and (II) service outcomes.
    Culturally appropriate health promotion/education strategies could also be used
    as a measure for both accessibility and inclusion. Cross-country comparisons
    (for example, comparative analysis with New Zealand) can provide useful
    benchmarks for accessibility and inclusion.
Recommendation 35:
That the Australian Government gives consideration to the adoption of the Building on our Strengths Framework as part of its broader national
preventative health agenda.

Health impacts of
experiences of racism in education settings

  1. The Impact of Racism upon the Health and Wellbeing of Young
    Australians
    study (2009) aimed
    to:[99]
    • examine the experiences of racism for young people in Australia of
      mainstream, Indigenous, migrant and refugee backgrounds
    • investigate how young people in Australia report and respond to racism
    • explore the attitudes of mainstream youth in relation to key issues in
      contemporary race relations.
  2. The sample population (823 participants from across 18 schools) reflected
    the ethnic demographic characteristics of the wider Australian population as set
    out in 2006 Australian Bureau of Statistics data.
  3. The key findings in the report included the following:
    • 70.1 percent of participants reported experiencing racism on an occasional
      basis (school as the main setting)
    • when experiences of racism were reported 52 percent alerted their teachers,
      31.7 percent alerted school counsellors, 12 percent alerted police and 4.2
      percent alerted a health professional
    • the majority of participants took no action to report incidences of racism
      or racist bullying
    • female students were identified as a group whose wellbeing was most affected
      by racism
    • over time, where students experience racism they consistently had lower
      health scores, decreased health/well being and poorer education
      outcomes.
  4. In the In Our Own Words Report (2010) African Australian young people
    in every state and territory said that discrimination, prejudice and negative
    attitudes about their ability to succeed were a constant part of their education
    experience.
  5. The report found that many young people from African Australian backgrounds,
    particularly girls, recounted being told by some teachers that they
    “shouldn’t aim too high” to avoid disappointment and were
    actively discouraged from pursuing further
    education.[100] They also felt
    unfairly targeted for not knowing class rules or how to behave in different
    social settings.
  6. Another major concern for African Australian students was the lack of
    appropriate support available to them at school, including a lack of available
    support staff who could understand their backgrounds and culture.
  7. The report found that the negative effects of these experiences on young
    African Australians can include low self esteem; reduced motivation; increased
    delinquency; depression and mental health problems particularly linked with
    reliance on substance misuse; and a greater likelihood of encountering problems
    with the law.
Recommendation 36: That human rights education
modules be incorporated into the National Curriculum for secondary schools and
the Australian Government provide a comprehensive package of measures to address
commitments under the World Programme for Human Rights
Education
.[101]

7.8 Cyber racism
(ICERD Article 2)

  1. The Australian Human Rights Commission notes that developing strategies to
    address contemporary forms and manifestations of racism (such as racist
    materials promoted through communication technologies) is outlined in paragraph
    143 of the Durban Declaration.
  2. The Australian Human Rights Commission is concerned about the increasing
    number of complaints (around 18 percent) received in relation to web based
    racist content in recent years.
  3. On 27 April 2010, the Australian Human Rights Commission and Internet
    Industry Association hosted a one-day Summit to initiate a dialogue about the
    issue of cyber-racism and possible solutions.
  4. More than 50 people from a wide range of sectors attended the session. This
    included representatives from federal government agencies, Internet service
    providers, social networking companies, NGOs, academics, social changers and
    young people.
  5. This cross-sector event marks an important milestone in co-operation on an
    area of mutual concern to government, industry and the community. All
    participants benefited from a better understanding of the nature and prevalence
    of cyber racism, and contributed information, expertise, experiences and ideas
    about how these issues are currently being handled.
  6. Nine themes emerged during the Summit:
    • While all recognise the positive power of the Internet, it is clear that it
      can be used inappropriately to convey racist messages which can do harm. This is
      an important human rights issue and community issue.
    • While cyber-safety is now on the radar of a wide range of groups in our
      community – including the groups that participated in the Summit –
      cyber-racism has gathered less attention. The challenge is to incorporate
      cyber-racism within broader cyber-safety strategies and (II) develop new
      initiatives focussing on cyber-racism itself.
    • There is a need to better recognise, showcase and share the strategies and
      initiatives which are already working and find ways to adapt and develop
      them.
    • Any strategy to address cyber-racism should include a wide range of measures
      to reach and empower different categories of people involved in cyber-racism
      (including instigators of racism, participants in racist online groups,
      observers to those web pages and people harmed by the racism).
    • Traditional regulatory responses alone will not solve the issue of
      cyber-racism - the problem is too big and fast moving for regulation to be
      effective.
    • One of the most powerful ways to start addressing cyber-racism is to harness
      the positive potential of the Internet, social media and social marketing to
      educate the community about racism and empower them to participate in positive
      social change.
    • Any strategy to address cyber-racism needs to focus on young people - the
      biggest users of Internet tools. Within that strategy there is a need to find
      ways to empower young people to create their own solutions.
    • There is a need for better communication and co-operation amongst all the
      parties who engage in cyber space – including the representatives that
      participated in the Summit.
    • There are gaps in the research around cyber-racism, and most definitely gaps
      in understanding about the issue of cyber-racism. In the Commission’s
      view, this needs to be linked to human rights education and strategies to
      address systemic racism.
Recommendation 37: That
evidence based strategies to address cyber-racism be included as part of a
coordinated, national approach to anti-racism/national action plan to address
racism.

7.9 Counter-terrorism
laws

  1. 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.[102] Some aspects
    of these new laws have eroded common law protections of fundamental rights and
    freedoms.[103]For example, these
    laws have enabled: detention without charge for 12
    days;[104]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.[105]
  2. The Commission recognises the recent reviews of the National Security
    Legislation by the Attorney-General; the Review of Security and
    Counter-Terrorism Legislation by the Parliamentary Joint Committee on
    Intelligence and Security (PJCIS) in 2006; Inquiry into the proscription of
    ‘terrorist organisations’ under the Australian Criminal Code by the
    Parliamentary Joint Committee on Intelligence and Security (September 2007).
Recommendation 38: The Commission recommends that all
counter-terrorism laws be rigorously monitored and amended to ensure they comply
with Australia’s human rights
obligations.[106]

7.10 Exploitation of
migrant workers (ICERD Articles 2,5,7)

  1. The Commission remains concerned about cases of forced labour and
    exploitation of migrant workers on business (long stay) visas subclass 457 and
    seasonal work visas.[107]
  2. In particular the Commission has learned of a number of cases where workers
    on 457 workers have been denied access to the Commonwealth’s General
    Employee Entitlements and Redundancy Scheme. The Scheme precludes persons not
    permanently resident in Australia from receiving basic employee entitlements
    (such as unpaid wages and redundancy pay) from the Commonwealth if their
    employer becomes insolvent.
  3. The Pacific Islander Seasonal Worker Scheme is a three-year pilot project
    that was introduced in 2008. The Pilot will allow up to 2500 seasonal workers
    from Kiribati, Papua New Guinea, Tonga and Vanuatu to work in the horticultural
    industry in regional Australia for up to seven months each year. The Department
    of Education, Employment and Workplace Relations are responsible for
    administering and monitoring the scheme.
  4. Under the pilot scheme workers will:
    • be allowed to work in Australia for seven months in any twelve months
    • be permitted multiple entries to Australia during this period
    • be able to return to work in future years, if they comply with visa
      conditions
    • need to maintain private health insurance during their stay
    • not be permitted to apply for another visa while in Australia
    • need to pay for half their international travel, living expenses, and other
      incidentals
    • be limited to working with approved employers
    • not be able to bring dependents with
      them.

Recommendation 39: That the Australian Government
provide a detailed report on what measures it has undertaken to strengthen the
integrity of the temporary skilled migration (Subclass 457 visa) program since
the Deegan Review in 2008.

Recommendation 40: That the Australian Government consider making the
Commonwealth’s General Employee Entitlements and Redundancy Scheme
accessible to 457 visas holders.

Recommendation 41: That the Australian Government provide interim reports
on (I) the monitoring and inspection frameworks designed for the seasonal worker
scheme and (II) employer compliance with the working conditions and standards
protecting vulnerable migrant workers from exploitation.

Recommendation 42: That the Australian Government routinely provide
targeted information about the rights of migrant workers, including options to
lodge complaints and seek remedy without intimidation.

Recommendation 43: That the Australian Government ratify the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families.

7.11 Freedom of
Religion and Belief (ICERD Article 5)

  1. The Commission is concerned by the limited protection of the right to
    freedom of religion and belief under Australia’s existing equality
    framework. 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).

  1. 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).

  1. The ICERD Committee has expressed this concern regarding this issue on
    several occasions. See further: UN Committee on the Elimination of Racial
    Discrimination: Concluding observations: Australia (2005), paragraph 9; UN
    Committee on the Elimination of Racial Discrimination: Concluding observations:
    Australia (2000), (paragraphs 6-10).
  2. The Article 18 Report is available online at: http://www.humanrights.gov.au/human_rights/religion/index.html.
Recommendation 44: That the Australian Government consider
making discrimination on the basis of religion and belief unlawful in the
consolidation of its federal anti-discrimination laws.

^top

8 Issues
relating to asylum seekers

8.1 Detention of
‘unlawful non-citizens’

  1. In its 2005 Concluding Observations on Australia, the Committee raised
    concerns about the mandatory detention of asylum seekers and other unlawful
    non-citizens, in particular women, children, unaccompanied minors and stateless
    persons. The Committee was particularly concerned about the length of time many
    people were spending in immigration detention. The Committee recommended that
    Australia review the ‘mandatory, automatic and indeterminate
    character’ of its immigration detention system, and requested statistical
    data, disaggregated by nationality and length of detention, including in
    relation to people held in offshore detention
    centres.[108]

8.2 Mandatory
detention

  1. Despite significant positive reforms, the legal architecture of
    Australia’s mandatory detention system remains. Under the Migration Act
    1958
    (Cth) (Migration Act), it is mandatory for any non-citizen in Australia
    (other than in an excised offshore
    place[109]) without a valid visa
    to be detained.[110] These
    persons, called ‘unlawful non-citizens’, may only be released from
    detention if they are granted a visa or removed from
    Australia.[111]
  2. In July 2008 the Commission welcomed the government’s announcement of
    ‘New Directions’ for Australia’s immigration detention
    system.[112] The New Directions include seven key immigration values, as follows:

    1. Mandatory detention is an essential component of strong border control.
    2. To support the integrity of Australia’s immigration program, three
      groups will be subject to mandatory detention:

      1. all unauthorised arrivals, for management of health, identity and security
        risks to the community
      2. unlawful non-citizens who present unacceptable risks to the community
        and
      3. unlawful non-citizens who have repeatedly refused to comply with their visa
        conditions.
    3. Children, including juvenile foreign fishers and, where possible, their
      families, will not be detained in an immigration detention centre.
    4. Detention that is indefinite or otherwise arbitrary is not acceptable and
      the length and conditions of detention, including the appropriateness of both
      the accommodation and the services provided, would be subject to regular
      review.
    5. Detention in immigration detention centres is only to be used as a last
      resort and for the shortest practicable time.
    6. People in detention will be treated fairly and reasonably within the
      law.
    7. Conditions of detention will ensure the inherent dignity of the human
      person.
  3. The Commission welcomes values 3 to 7, and expressed the need for them to be
    translated into policy, practice and legislative change as soon as possible.
    Since then, some positive policy changes have been introduced. However, there
    remains significant progress to be made. In particular, the values have not been
    implemented in legislation. In June 2009 the Australian Government introduced
    the Migration Amendment (Immigration Detention Reform) Bill 2009 (Cth) into
    Parliament. The Commission welcomed the Bill as a positive step, but expressed
    concern that it did not go far enough towards implementing the New Directions,
    including some of the
    values.[113]As of May 2010, the Bill had not been passed.
  4. The Commission has consistently called for the repeal of the mandatory
    detention system because it leads to breaches of Australia’s international
    human rights obligations. The Commission has recommended that:

    • the Migration Act be amended so that immigration detention occurs only when
      necessary. This should be the exception, not the norm. It should be for a
      minimal period, be reasonable and be a proportionate means of achieving at least
      one of the aims outlined in international law. These limited grounds for
      detention should be clearly prescribed in the Migration Act.
    • the Migration Act should be amended so that the decision to detain a person
      is subject to prompt review by a court, in accordance with international
      law
    • the Migration Act should be amended to include periodic independent reviews
      of the ongoing need to detain an individual, and a maximum time limit for
      detention.[114]

8.3 Detainee numbers,
nationalities and length of detention

  1. As reflected in the Australian Government report to the Committee, until
    2008 there had been a decline in the number of people in immigration
    detention.[115]The Commission welcomed
    this.[116] However, since that time the number of detainees has increased significantly. As
    of 2 April 2010, there were 2686 people in immigration detention, including 272
    children.[117]
  2. The nationalities of these people were listed as follows: 1059 from
    Afghanistan; 660 from Sri Lanka; 209 from Iraq; 123 from Indonesia; 120 from the
    People’s Republic of China; 116 from Iran; 36 from Burma; 15 from Vietnam;
    14 from the Palestinian Authority; 12 from Nigeria; and 322 other
    nationalities.[118]
  3. There has been some progress made by the current Australian Government in
    reducing the length of time people spend in immigration detention –
    particularly the very long-term cases. In June 2008, there were 52 people who
    had been detained for more than two
    years.[119] As of April 2010, this
    had decreased to 18 people.[120] However, the Commission remains concerned that many people still spend prolonged
    periods in detention.
  4. As of 2 April 2010, of the 2686 people in immigration detention:
    • 24 had been detained for 18 months or more
    • 25 had been detained for 12 to 18 months
    • 377 had been detained for 6 to 12 months
    • 387 had been detained for 3 to 6 months
    • the remainder (1873) had been detained for up to 3
      months.[121]

8.4 Conditions of
detention

  1. The Commission has repeatedly raised concerns about the lack of transparent
    and enforceable standards for conditions in immigration detention, and has
    called for minimum standards to be codified in
    legislation.[122] Since the Australian Government prepared its report to the Committee, a new
    detention service provider (Serco) has taken over operation of immigration
    detention facilities. It is not clear what standards Serco is required to comply
    with. According to the Department of Immigration and Citizenship (DIAC), the
    contract with Serco ‘encompasses a stronger focus on the rights and
    well-being of people in
    detention’.[123] However, while the Commission was consulted early in the tender documentation
    development, the Commission has not been provided with a copy of the final
    contract or the standards contained within it.
  2. As noted in the Australian Government report, the Commission undertakes
    visits to immigration detention facilities in order to monitor whether
    conditions meet internationally accepted human rights
    standards.[124] The Commission
    releases public reports of these visits, which make recommendations to the
    Australian Government.[125] The
    Commission’s 2008 Immigration detention report has been submitted to the
    Committee.[126]It should be noted
    that the Commission does not have the power to enforce the recommendations it
    makes in these reports.
  3. In the Commission’s view there is a need for a more comprehensive
    monitoring mechanism to ensure that conditions in immigration detention meet
    human rights standards. This mechanism should consist of an independent body
    with a statutory power to enter detention facilities, and a human rights-based
    mandate. The Australian Government should be legally required to consider and
    respond to its recommendations. One means of achieving this would be through the
    Australian Government ratifying the Optional Protocol to the Convention against
    Torture
    (OPCAT).[127]
  4. As a party to OPCAT, the Australian Government would be required to
    establish an independent National Preventive Mechanism to conduct regular
    inspections of all places of detention, including immigration
    detention.[128]
  5. The Australian Government report also notes that, under the Australian Human
    Rights Commission Act (1986) (Cth) (AHRC Act), the Commission can investigate
    complaints from individuals about alleged breaches of human rights in
    immigration detention.[129] Where
    the President of the Commission determines that a human rights breach has
    occurred, the President can prepare a report including recommended remedies. The
    Attorney-General must table the report in
    Parliament.[130]However, unlike
    breaches of the RDA, breaches of human rights under the AHRC Act are not
    unlawful. As such, complaints of human rights breaches in immigration detention
    can be investigated and conciliated by the Commission, but there is no legally
    enforceable remedy.

Recommendation 45: That the Australian
Government ratify the Optional Protocol to the Convention against Torture (OPCAT).[131]

8.5 Detention of
families and children

  1. In 2004, the Commission’s report of its National Inquiry into
    Children in Immigration Detention, A last resort?
    , found that
    Australia’s mandatory detention system was fundamentally inconsistent with
    the Convention on the Rights of the
    Child.[132] Since that time, there have been some significant developments. In 2005 most
    children and their family members were released from Australia’s
    immigration detention centres, and the Migration Act was amended to
    affirm ‘as a principle’ that a minor should only be detained as a
    measure of last resort.[133]In
    2008, the current Australian Government made a commitment that children, and
    where possible, their families will not be detained in an immigration detention
    centre.[134] The Commission has
    welcomed these developments.
  2. However, the Commission has significant ongoing
    concerns.[135] In particular, while children are no longer detained in Australia’s high
    security immigration detention centres, they are still detained in other types
    of immigration detention facilities including immigration residential housing,
    immigration transit accommodation and alternative places of detention such as
    the ‘construction camp’ detention facility on Christmas
    Island.[136]
  3. As of 2 April 2010, there were 272 children in immigration detention –
    163 on Christmas Island and 109 on the
    mainland.[137] Of these 272 children, the
    vast majority (244 children) were in an immigration detention
    facility.[138]Only nine were in
    community detention.[139]The
    remaining 19 children were in alternative places of detention on the mainland
    – this may include temporary detention arrangements such as hotels and
    foster care placements.[140]
  4. The Commission has significant concerns about the practice of holding
    families with children and unaccompanied minors in immigration detention
    facilities. While the physical environment is generally preferable to the
    immigration detention centres, the effects of depriving children of their
    liberty can nevertheless be similar. In the Commission’s view, families
    with children and unaccompanied minors should not be held in detention
    facilities for anything other than the briefest of periods. Rather, they should
    be issued with bridging visas to reside in the community while their immigration
    status is resolved, or placed in community detention.

Recommendation 46: That the Australian Government implement the remaining
recommendations of A last resort? in order to address ongoing concerns
about the situation of children under Australia’s immigration detention
system.[141]

8.6 Detention and
offshore processing on Christmas Island

  1. The Commission has raised significant concerns about the mandatory detention
    of asylum seekers on Christmas Island, a remote territory of Australia in the
    Indian Ocean. As of 26 March 2010, there were 2068 people in immigration
    detention on Christmas Island, including 163
    children.[142] The remote location
    and small size of the island limit detainees’ access to appropriate
    services and support networks, and the location makes their detention
    arrangements less visible and transparent to the Australian public.
  2. The Commission has also raised concerns about the excision regime, under
    which asylum seekers who arrive in excised offshore places such as Christmas
    Island are barred from the refugee status determination system that applies
    under the Migration Act.[143] Instead, they go through a non-statutory refugee status assessment process
    governed by policy guidelines.
  3. The Commission’s concerns are set out in full in its 2009 report,
    Immigration detention and offshore processing on Christmas
    Island.[144] This report has been
    submitted to the Committee.

Recommendation 47: That the
Australian Government cease the practice of holding people in immigration
detention on Christmas Island, and repeal the provisions of the Migration Act
relating to excised offshore
places.[145]

8.7 The suspension of
processing of some asylum claims

  1. On 9 April 2010, the Australian Government announced that it was suspending
    processing of new refugee claims by asylum seekers from Sri Lanka and
    Afghanistan.[146]The suspension
    came into effect on the same day. It will impact any asylum seeker from Sri
    Lanka or Afghanistan who is intercepted at sea or who arrives in an excised
    offshore place (including Christmas Island) on or after that date, and any
    asylum seeker from Sri Lanka or Afghanistan who applies for refugee status on
    the Australian mainland on or after that
    date.[147]
  2. Asylum seekers from Sri Lanka or Afghanistan who arrive by boat on or after
    9 April 2010 will be subjected to mandatory immigration detention for the
    duration of the suspension. The Australian Government has indicated that it will
    review the suspension in three months time in the case of asylum seekers from
    Sri Lanka, and in six months time in the case of asylum seekers from
    Afghanistan. However, there is no guarantee that the suspension will be lifted
    at those reviews.
  3. The Commission has expressed serious concerns about the suspension
    decision.[148]In particular, the
    Commission is concerned that it could lead to the prolonged or indefinite
    detention of asylum seekers. This is a particular concern in the case of
    unaccompanied minors and families with children.
  4. The Commission is also concerned that the suspension decision may be
    inconsistent with Australia’s obligations under ICERD. While the
    Convention permits distinctions between citizens and
    non-citizens,[149]the Committee
    has stated that State Parties should ‘ensure that immigration policies do
    not have the effect of discriminating against persons on the basis of race,
    colour, descent, or national or ethnic
    origin’.[150]
  5. The Commission is concerned that the suspension may constitute indirect
    racial discrimination under ICERD. The Committee has confirmed that the
    definition of racial discrimination in article 1 extends ‘beyond measures
    which are explicitly discriminatory, to encompass measures which are not
    discriminatory at face value but are discriminatory in fact and
    effect’.[151] In considering
    whether an action will have an effect contrary to the Convention, the Committee
    will look to see whether that action has disparate impact upon a group
    distinguished by race, colour, descent, or national or ethnic origin; and if so,
    whether the impact is
    justified.[152]
  6. The Australian Government has decided to suspend the processing of new
    refugee claims from asylum seekers who are nationals of Sri Lanka or
    Afghanistan. The Commission recognises that this distinction is on the basis of
    nationality. However, the impact of this policy clearly has a disproportionate
    effect on people of Sri Lankan and Afghan national origin.
  7. The suspension decision potentially limits the right of Sri Lankan and
    Afghan nationals to equality before the law including equal treatment before
    tribunals and other organs administering justice (protected under article 5 of
    ICERD), and the right to freedom from arbitrary detention (protected under
    article 9 of the International Covenant on Civil and Political Rights).
  8. The Commission is concerned that these potential restrictions on fundamental
    human rights have not been adequately justified. The rationale given by the
    Australian Government for the suspension decision is that the circumstances in
    Sri Lanka and Afghanistan are improving, and it is likely that those who may now
    be found to be refugees would not be so in the future. However, it seems that
    conditions in countries that have been unstable are by definition always
    changing. The government has provided no evidence to suggest that conditions in
    Sri Lanka and Afghanistan are certain to markedly improve within a very short
    timeframe such that its suspension is justified.
Recommendation
48: That the Australian Government promptly lift the suspension on new refugee
claims by asylum seekers from Sri Lanka and Afghanistan.

^top

9 Appendix
One: List of acronyms

The following acronyms are used throughout the submission:

ATSIS
Aboriginal and Torres Strait Islander Services
COAG
Council of Australian Governments
DIAC
Department of Immigration and Citizenship
DDPA
Durban Declaration and Program of Action
AHRC Act
Australian Human Rights Commission Act 1986 (Cth)
ICERD
International Convention on the Elimination of All forms of Racial
Discrimination (1965)
NT
Northern Territory
NTA
Native Title Act 1993 (Cth)
NTER
Northern Territory Emergency Response
RCIADIC
Royal Commission into Aboriginal Deaths in Custody
RDA
Racial Discrimination Act 1975 (Cth)
UPR
Universal Periodic Review

^top

10 Appendix Two: List of recommendations

Recommendation 1: That the Australian Government
Social Inclusion Board includes (I) newly arrived migrants, (II) disadvantaged
migrants and (III) people from refugee backgrounds in their list of priority
areas.

Recommendation 2: That the proposed Joint Parliamentary Committee on Human
Rights should be empowered to make recommendations in relation to the
implementation ICERD Committee Concluding Observations.

Recommendation 3: That the Department of Foreign Affairs and Trade and the
Australian Human Rights Commission co-chair an annual CERD implementation
meeting to (I) delegate responsibilities and (II) monitor progress.

Recommendation 4: That the Australian Government fund a full time Race
Discrimination Commissioner at the Commission.

Recommendation 5: That the Department of Immigration and Citizenship and the
Department of Families, Housing, Community Services and develop publicly
available research frameworks that identify (I) current research and data
collection priorities and (II) research and data gaps relevant to migrant
communities and Indigenous communities respectively.

Recommendation 6: That the Department of Immigration and Citizenship fund an
independent biennial report on migrant disadvantage based on the Overcoming
Indigenous Disadvantage report model.

Recommendation 7: That the Australian Government conduct a major national
study on the experiences of temporary migrants in Australia (workplace
experiences, safety, experiences of racism, social inclusion)

Recommendation 8: That the Australian Government conduct research on the
international student population in Australia in the following key areas:

  • income and expenditure data
  • living and working conditions
  • experiences of discrimination
  • strategies to support safe international student
    experiences.

Recommendation 9: that the Australian Bureau of
Statistics work in partnership with state and territory police agencies to
collect national data on racially motivated crime.

Recommendation 10: That the Australian Government commence a constitutional
process, with the active engagement of Indigenous peoples, for the recognition
of Indigenous peoples in the preamble; removal of section 25 of the Constitution
and its replacement with a clause guaranteeing equality before the law and
non-discrimination.[153]

Recommendation 11: That all legislation, policies and programs be reviewed
for consistency with the rights affirmed by the
Declaration.[154]

Recommendation 12: That the Australian the Government ratify the ILO
Convention No. 169 (1989) concerning Indigenous and Tribal Peoples in
Independent Countries.[155]

Recommendation 13: That the Australian Government sign and ratify the
Optional Protocol on Economic Social and Cultural
Rights.[156]

Recommendation 14: That the Australian Government develop a comprehensive,
long-term plan of action, that is targeted to need, evidence-based and capable
of addressing the existing inequities in health services, in order to achieve
equality of health status and life expectancy between Aboriginal and Torres
Strait Islander peoples and non-indigenous Australians by 2030.

Recommendation 15: The Commission recommends the Australian Government
address the discrimination faced by Aboriginal and Torres Strait Islander
peoples with hearing impairment and deafness on the basis of their race and
disability.

Recommendation 16: The Commission strongly recommends that the Government
take urgent action to support the reinstatement of bilingual education
approaches in schools, and safeguard the future of bilingual education through
binding agreements with state and territory governments and ongoing resources to
support its
implementation.[157]

Recommendation 17: That the Australian Government:

  • establish a national Indigenous languages body with functions and
    responsibilities similar to those of the Māori Language Commission as per
    the commitment of Indigenous Languages - A National Approach.
  • agree to resource an ongoing plan of action for the preservation and
    promotion of Indigenous languages as recommended by the national Indigenous
    languages body.
  • Become a signatory to the Convention for the Safeguarding of the
    Intangible Cultural Heritage (2003).
  • through COAG, develop agreements to ensure consistency and compliance with
    Australia’s Indigenous Languages - A National
    Approach.[158]

Recommendation
18: That housing programs should avoid imposing or promoting housing
arrangements that would undermine Indigenous people’s control over their
lands; and should be administered by Indigenous community controlled
institutions.[159]

Recommendation 19: That the Australian Government continue to fund community
education and community development programs aimed at preventing family violence
in Indigenous communities.

Recommendation 20: The Commission recommends that:

  • the Australian Government, through COAG, set criminal justice targets that
    are integrated into the Closing the Gap agenda.
  • the Standing Committee of Attorneys General Working Party identify justice
    reinvestment as a priority issue under the National Indigenous Law and Justice
    Framework, with the aim of conducting pilot projects in targeted communities in
    the short term.
  • all state and territory governments consider justice reinvestment in tandem
    with their plans to build new prisons.
  • a percentage of funding that is targeted to prison beds be diverted to trial
    communities where there are high rates of Indigenous
    offenders.

Recommendation 21: To bring the NTER into full compliance
with human rights standards the Commission recommends the NTER be amended as
follows:

  • The categories of ‘disadvantaged youth’ and ‘long-term
    welfare payment recipients’ be reformulated to apply on a case-by-case
    basis .
  • Domestic violence not be included as an indicator for ‘vulnerable
    welfare payment recipient’ under the redesigned income management
    scheme
  • The capacity to compulsorily acquire any further five-year leases under Part
    4 of the NTER Act be removed and the Government commit to obtaining the free,
    prior and informed consent of traditional owners to enter into voluntary lease
    arrangements for existing compulsory lease arrangements.
  • The government move towards further amendments of the NTER to incorporate
    notwithstanding clauses in the legislation and ensure all measures that are
    intended to be special measures comply with the RDA.

Recommendation
22: The Commission also recommends that the Australian Government:

  • supplement any income management scheme with additional support programs
    that address the rights to food, education, housing, and provide support in the
    form of financial literacy/budgeting skills.
  • ensure the participation of Indigenous peoples in developing, implementing
    and monitoring alcohol management plans and ensure all alcohol management
    processes are consistent with the RDA. Alcohol restrictions should be
    supplemented by investment in infrastructure in the health and mental health
    sectors (including culturally appropriate detoxification facilities) and
    investment in culturally appropriate community education programs delivered by
    Indigenous staff.

Recommendation 23: That the Australian Government
take immediate steps to review the native title system and to implement measures
to address the above concerns. Such measures should include amendments to the
Native Title Act to provide for presumptions in favour of native title
claimants, including a presumption of continuity in the acknowledgement and
observance of traditional law and custom and of the relevant
society.[160]

Recommendation 24: The Commission recommends that the Australian and Northern
Territory governments commit to supporting homelands through:

  • reviewing, developing and implementing homeland policies with the active
    participation of representative leaders from homeland communities
  • providing funding and support for homeland communities in all states and
    territories through the COAG National Indigenous Reform Agreement and associated
    National Partnership
    Agreements.[161]

Recommendation
25: The Commission recommends that the Commonwealth, through the Councils of
Australian Governments, engage with State and Territory governments to develop a
consistent approach with joint funding mechanisms in the provision of financial
redress for the Stolen Generations.

Recommendation 26: The Commission recommends that Stolen Wages compensation
schemes be established in other states and territories as appropriate.

Recommendation 27: That the Australian Government consider the following in
the development of a national multicultural policy:

  • that is should be based on extensive community consultation
  • that it should be properly linked with the Australian Human Rights
    Framework, the Human Rights Action Plan and the Social Inclusion Agenda
  • that it adopts a broad definition of the ‘multicultural
    community’ in Australia that genuinely considers: newly arrived migrants,
    international students, temporary and seasonal migrant workers, people from
    refugee backgrounds and established ethnic communities
  • that it addresses the issue of religious diversity and freedom of religion
    and belief
  • that systems of auditing, benchmarking, compliance and evaluation are
    created.

Recommendation 28: That the Australian Government develop a
coordinated, national approach to anti-racism that is linked to the national
multicultural policy framework. This recommendation is in accordance with the
Durban Declaration and Program of Action, which calls on states to develop
comprehensive national action plans to eradicate racism, racial discrimination,
xenophobia and related intolerance.

Recommendation 29: That the Australian Government revisit the recommendations
made in the Commissions Report of National Inquiry into Racist Violence in
Australia in 1991.

Recommendation 30: That the Australian Government: (I) broaden the parameters
of the ESOS Act to include on campus student safety (II) language foundations
(III) social support.

Recommendation 31: That the COAG International Student Strategy provides a
regulation framework that involves states, territories and local governments in
addressing issues relating to safety, accommodation, transport and
discrimination.

Recommendation 32: That the Australian Government compile national survey
data on international students in Australia, particularly in relation to income
and expenditure, housing experiences, employment discrimination and experiences
of violence.

Recommendation 33: That the Department of Immigration and Citizenship and
other government agencies consider the findings of the In Our Own Voices
Report
in (I) policy development processes (II) service delivery
improvements and (III) settlement services improvements.

Recommendation 34: That the Minister for Sustainable Population establish an
Interdepartmental Committee across human services and sustainability agencies
to: (I) share research data, (II) coordinate policy, (III) develop integrated
approaches and (IV) provide strategic advice around balancing immigration flows,
population targets, workforce planning and ecological sustainability.

Recommendation 35: That the Australian Government provides consideration to
the adoption of the Building on our Strengths Framework as part of its
broader national preventative health agenda.

Recommendation 36: That human rights education modules be incorporated into
the National Curriculum for secondary schools and the Australian Government
provide a comprehensive package of measures to address commitments under the World Programme for Human Rights
Education
.[162]

Recommendation 37: That evidence based strategies to address cyber-racism
should be included as part of a coordinated, national approach to
anti-racism/national action plan to address racism.

Recommendation 38: The Commission recommends that all counter-terrorism laws
be rigorously monitored and amended to ensure they comply with Australia’s
human rights obligations.[163]

Recommendation 39: That the Australian Government provide a detailed report
on what measures it has undertaken to strengthen the integrity of the temporary
skilled migration (Subclass 457 visa) program since the Deegan Review in
2008.

Recommendation 40: That the Australian Government consider making the
Commonwealth’s General Employee Entitlements and Redundancy Scheme
accessible to 457 visas holders.

Recommendation 41: That the Australian Government provide interim reports on
(I) the monitoring and inspection frameworks designed for the seasonal worker
scheme and (II) employer compliance with the working conditions and standards
protecting vulnerable migrant workers from exploitation.

Recommendation 42: That the Australian Government routinely provide targeted
information about the rights of migrant workers, including options to lodge
complaints and seek remedy without intimidation.

Recommendation 43: That the Australian Government ratify the International
Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families.

Recommendation 44: That the Australian Government consider making
discrimination on the basis of religion and belief unlawful in the consolidation
of its federal anti-discrimination laws.

Recommendation 45: That the Australian Government ratify the Optional
Protocol to the Convention against Torture
(OPCAT).[164]

Recommendation 46: That the Australian Government implement the remaining
recommendations of A last resort? in order to address ongoing concerns
about the situation of children under Australia’s immigration detention
system.[165]

Recommendation 47: That the Australian Government cease the practice of
holding people in immigration detention on Christmas Island, and repeal the
provisions of the Migration Act relating to excised offshore
places.[166]

Recommendation 48: That the Australian Government promptly lift the
suspension on new refugee claims by asylum seekers from Sri Lanka and
Afghanistan.

^top


[1] The Commission officially
changed its name in August 2009 to distinguish us from state and territory
commissions and other National Human Rights
Institutions.
[2] Australian Social
Inclusion Board, Compendium of Social Inclusion Indicators, pxii. At http://www.socialinclusion.gov.au/AusGov/Board/Documents/Compendium.pdf (viewed at 10 September 2009).
[3] 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).
[4] J
Macklin, Statement on the United Nations Declaration on the Rights of
Indigenous Peoples
, Parliament House, Canberra (3 April 2009). At http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/un_declaration_03apr09.htm (viewed 18 May 2010).
[5] The six
Closing the Gap targets include:

  • Close the gap in life expectancy within a generation;
  • Halve the gap in mortality rates for Indigenous children under five within a
    decade;
  • Halve the gap for Indigenous students in reading, writing and numeracy
    within a decade;
  • At least halve the gap for Indigenous students in year 12 attainment or
    equivalent attainment rates by 2020;
  • Halve the gap in employment outcomes between Indigenous and non Indigenous
    Australians within a decade;
  • Ensure all four-year-olds, including those in remote communities, have
    access to early childhood education, within five years.

For further information on COAG’s National Agreements
and National Partnership Agreements for meeting COAG’s objectives see the
COAG website. At http://www.coag.gov.au/.
[6] Department of Families, Housing, Community Services and Indigenous Affairs, Aboriginal and Torres Strait Islander Healing Foundation. At http://www.fahcsia.gov.au/sa/indigenous/pubs/healing/Pages/default.aspx (viewed 18 May 2010).
[7] United
Nations 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 the Elimination of Racial
Discrimination: Australia
, UN Doc. CERD/C/AUS/CO/14 (14 April 2005), para
24. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.AUS.CO.14.En?Opendocument (viewed 3 May 2010).
[8]Kartinyeri v Commonwealth (1998) 195 CLR 337,
411
[9]Kruger v
Commonwealth
(1997) 190 CLR 1. The High Court has since held that the
acquisition of property pursuant to laws made under s122 are subject to the
guarantee of just terms compensation as required by s51(xxxi) (Wurridjal v
The Commonwealth of Australia
(2009) HCA
2).
[10] See, eg, Council for
Aboriginal Reconciliation, Roadmap to Reconciliation (2000). At http://www.austlii.edu.au/au/other/IndigLRes/car/2000/10/pg3.htm (viewed 18 May 2010). See also Aboriginal and Torres Strait Islander Social
Justice Commissioner, Social Justice Report 2000, (2000) ch 4; Aboriginal
and Torres Strait Islander Social Justice Commissioner, Social Justice Report
2008,
(2008), ch 2.
[11] The
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people has made similar recommendations (Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous people Addendum: The Situation of Indigenous Peoples in Australia, UN Doc A/HRC/15/
(2010). At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010)).
[12] Commonwealth, Parliamentary Debates, House of Representatives (8 February
2010) p 97 (The Hon Tony Abbot, Leader of the
Opposition).
[13] Legal and
Constitutional Affairs Committee, Parliament of Australia, Native Title
Amendment Bill (No.2) 2009
[Provisions] (2010), para
357.
[14]Aurukun Shire
Council & Anor v. CEO Office of Liquor Gaming and Racing in the Department
of Treasury
[2010] QCA 37 (1 March 2010), para
33.
[15] Northern Australian
Indigenous Land and Sea Management Alliance, A Policy Statement on Northern
Australian Indigenous Water Rights
, (2009) at http://www.nailsma.org.au/projects/water_policy.html (viewed 26 March 2010); Goldfields Land and Sea Council, Mining Policy: Our Land is Our Future, (2008) at http://www.glc.com.au/ (viewed 26 March
2010).
[16] Committee on the
Elimination of Racial Discrimination, Concluding Observations on United
States of America,
UN Doc CERD/C/USA/CO/6 (2008) para
29.
[17] This was also a
recommendation made by Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people in his 2010 report on Australia
(Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Addendum: The Situation of Indigenous Peoples in
Australia
, UN Doc A/HRC/15/ (2010). At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010)).
[18] This
has also been recommended by: the Aboriginal and Torres Strait Islander Social
Justice Commissioner (Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 2008 (2008), ch 4; the Committee on
Economic Social and Cultural Rights, (Committee on Economic, Social and Cultural
Rights, Consideration of Reports Submitted by States Parties Under Articles
16 and 17 of the Covenant, Concluding Observations of the Committee on Economic,
Social and Cultural Rights: Australia
, UN Doc. E/C.12/AUS/CO/4 (June 2009)
at http://www2.ohchr.org/english/bodies/cescr/cescrs42.htm (viewed 18 May 2010)); and the Special Rapporteur on the situation of human
rights and fundamental freedoms of indigenous people (Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous people, Addendum: Situation of Indigenous Peoples in Australia (2010), UN Doc
A/HRC/15, p 30 at http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htmv (viewed 18 May 2010)).
[19] This
was also a recommendation of the Committee on Economic Social and Cultural
Rights, (Committee on Economic, Social and Cultural Rights, Consideration of
Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant,
Concluding Observations of the Committee on Economic, Social and Cultural
Rights: Australia
, UN Doc. E/C.12/AUS/CO/4 (June 2009). At http://www2.ohchr.org/english/bodies/cescr/cescrs42.htm (viewed 18 May 2010)).
[20] The
six Closing the Gap targets include:

  • Close the gap in life expectancy within a generation;
  • Halve the gap in mortality rates for Indigenous children under five within a
    decade;
  • Halve the gap for Indigenous students in reading, writing and numeracy
    within a decade;
  • At least halve the gap for Indigenous students in year 12 attainment or
    equivalent attainment rates by 2020;
  • Halve the gap in employment outcomes between Indigenous and non Indigenous
    Australians within a decade;
  • Ensure all four-year-olds, including those in remote communities, have
    access to early childhood education, within five years.

For further information on COAG’s National Agreements
and National Partnership Agreements for meeting COAG’s objectives see the
COAG website. At http://www.coag.gov.au/.
[21] Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Addendum: The Situation of Indigenous Peoples in
Australia
, UN Doc A/HRC/15/, 2010, para 72-73. At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm.
[22] Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous people, Addendum: Situation of Indigenous Peoples in Australia (2010), UN Doc
A/HRC/15, paras 91-93. At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm[23] United Nations Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr Anand Grover, Preliminary Observations and Recommendations, Canberra, (4 December 2009), p 5. At http://www2.ohchr.org/english/issues/health/right/docs/PressStatementAustralia041209.doc (viewed 18 May 2010).
[24] Senate Community Affairs Committee, Hear Us: Inquiry into Hearing Health in
Australia
(2010). At http://www.aph.gov.au/senate/committee/clac_ctte/hearing_health/report/index.htm.
[25] Human Rights and Equal Opportunity Commission, Education Access, National
Inquiry into Rural and Remote Education
(2000), p.
70.
[26] Expert Mechanism on the
Rights of Indigenous Peoples, Study on lessons learned and challenges to
achieve the implementation of the right of indigenous peoples to education
(2008), UN Doc A/HRC/EMRIP/2009/2. At http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/2nd/index.htm (viewed 18 may 2010).
[27] Department of Employment, Education and Training, Northern Territory Government, Indigenous Languages and Culture in Northern Territory Schools Report 2004
– 2005
, (2004) pp.
34-37.
[28] The Committee on
Economic, Social and Cultural Rights has recommended the Australian Government
preserve and promote bilingual education at schools.Committee on
Economic, Social and Cultural Rights, Consideration of Reports Submitted by
States Parties Under Articles 16 And 17 Of The Covenant, Concluding Observations
of the Committee on Economic, Social and Cultural Rights,
Forty-second
session Geneva, 4 to 22 May 2009, para 33. At http://www2.ohchr.org/english/bodies/cescr/docs/AdvanceVersions/E-C12-AUS-CO-4.doc (viewed 12 June 2009). Similar recommendations were also made by the Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people (Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, Addendum: Situation of Indigenous
Peoples in Australia
(2010), UN Doc A/HRC/15 at http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm)
(viewed 18 May 2010)) and the Permanent Forum on Indigenous Issues (Economic and
Social Council, Permanent Forum on Indigenous Issues 9th Session,
Draft Report
(2010), UN Doc E/C.19/2010/L.2)..
[29] Department of Education, Employment and Workplace Relations, Indigenous
Employment and Business
, http://www.deewr.gov.au/Indigenous/Employment/Pages/default.aspx (viewed 20 July 2009).

[30] CDEP was created under the
Fraser government in 1977 as a form of community engagement in the job creation
market. Essentially, the CDEP scheme is predicated upon the use of block grants
(that total the equivalent of the unemployment benefits that would otherwise be
available to Aboriginal people within certain communities) being made available
to community controlled organisations. These organisations then have the
capacity to manage their own projects and finances in line with the aspirations
and skills of the community in which they operate. The CDEP scheme has enabled
many Indigenous communities to develop valuable community services e.g. night
patrol services; childcare centres; cultural and natural heritage programs and
garbage removal services (Unpublished, Job Futures response to government
discussion paper: Indigenous Potential Meets Economic Opportunity,
(2006),
p2. Response provided by Job Futures to the Aboriginal and Torres Strait
Islander Social Justice Commissioner.). However, the CDEP scheme has also been
criticised by Indigenous peoples and governments for reasons such as limiting
the engagement of Indigenous peoples in mainstream employment opportunities that
earn ‘real
wages’.
[31] CDEP
participants in remote areas are able to access CDEP wages until 30 June 2011 to
support their transition to the new
arrangements.
[32] Australian
Bureau of Statistics, 6287.0 - Labour Force Characteristics of Aboriginal and
Torres Strait Islander Australians, Estimates from the Labour Force Survey
2009
, At http://www.abs.gov.au/ausstats/abs@.nsf/Products/6287.0~2009~Chapter~Unemployment (viewed 25 June 2010)
[33] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2009
(2009), ch 3. At http://www.hreoc.gov.au/social_justice/sj_report/sjreport09/chap3.html (viewed 18 May 2010).
[34] Australian Bureau of Statistics, The Health and Welfare of Australia’s
Aboriginal and Torres Strait Islander Peoples 2008
, ABS cat no 4704.0 (2008)
p46.
[35] Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the
right to an adequate standard of living, Addendum - Mission to Australia
(31
July to 15 August 2006), U.N. Doc. A/HRC/4/18/Add.2, ( 2007), para 80. At
http://daccessdds.un.org/doc/UNDOC/GEN/G07/125/72/PDF/G0712572.pdf?OpenElement (viewed 18 May 2010).
[36] See Human Rights and Equal Opportunity Commission, Submission on the Green
Paper: Which Way Home?
(2008). At http://humanrights.gov.au/legal/submissions/2008/20080704_homelessness.html (viewed 18 May 2010).
[37] The
House of Representatives Standing Committee on Family, Community, Housing and
Youth report, Housing the Homeless: Report on the Inquiry into homelessness
legislation
recommends that new housing legislation specify the
right of all Australians to adequate housing, which should include appropriate
reference to Australia’s international human rights obligations, a
definition of adequate housing and explicit recognition that the right to
adequate housing will be progressively realised. House of Representatives
Standing Committee on Family, Community, Housing and Youth, Housing the
Homeless: Report on the Inquiry into homelessness legislation
(2009). At http://www.aph.gov.au/house/committee/fchy/homelessness/report/fullreport%20as%20at%2025%20Nov.pdf (viewed 18 May 2010).
[38] COAG
has also agreed to a National Affordable Housing Agreement, a National
Partnership Agreement on Social Housing and a National Partnership Agreement on
Homelessness, which also address elements of Indigenous housing and
homelessness. These are available on the COAG website at http://www.coag.gov.au/.
[39] Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Addendum: Situation of Indigenous Peoples in Australia (2010), UN Doc A/HRC/15, para 74. At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010).
[40] Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Addendum: Situation of Indigenous Peoples in Australia (2010), UN Doc A/HRC/15, para 74. At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010).
[41] National Council to Reduce Violence against Women and their Children, Time
for Action: The National Council’s Plan for Australia to Reduce Violence
against Women and their Children, 2009-2021
(2009). At http://www.fahcsia.gov.au/sa/women/pubs/violence/np_time_for_action/national_plan/Documents/The_Plan.pdf (viewed 20 July 2009).
[42] Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending
family violence and abuse in Aboriginal and Torres Strait Islander communities:
Key issues
(2006), pp 5-6. See also Aboriginal and Torres Strait Islander
Social Justice Commissioner, Social Justice Report 2007, pp
194-95.
[43] National Indigenous
Drug and Alcohol Committee, Bridges and barriers: addressing
Indigenous incarceration and health
(2009). At http://www.nidac.org.au/publications/pdf/nidac_bridges_and_barriers.pdf (viewed 20 July 2009).
[44] Australian Bureau of Statistics, Prisoners in Australia 2006. At http://abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4517.02006?OpenDocument (viewed 24 July 2009).
[45] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2009
, p
9.
[46] Senate Legal and
Constitutional Affairs Committee, Access to Justice (2009). At http://www.aph.gov.au/senate/committee/legcon_ctte/access_to_justice/report/index.htm (viewed 18 May 2010).
[47] Noetics Solutions, A Strategic Review of the New South Wales Juvenile Justice
System: Report for the Minister for Juvenile Justice
(2010), p ix. At http://www.djj.nsw.gov.au/strategic_review.htm (viewed 18 May 2010).
[48] See Criminal Code (WA), s 282 and Sentencing Act 1995 (NT), ss 78BA, 78BB. 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 such as offences of
violence.
[49] 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).
[50] 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).
[51] 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).
[52]
[53] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007 (2008), ch 3. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/chap3.html (viewed 18 May 2010). Human Rights and Equal Opportunity Commission, Submission to the Senate Legal and Constitutional Affairs Committee on the
Northern Territory National Emergency Response Legislation
(2007). At http://www.humanrights.gov.au/legal/submissions/2007/NTNER_Measures20070810.html (viewed 18 May 2010). Human Rights and Equal Opportunity Commission, Submission to the Northern Territory Emergency Response Review Board (2008). At http://humanrights.gov.au/legal/submissions/2008/20080815_nt_response.html (viewed 18 May 2010). Australian Human Rights Commission, Draft guidelines
for ensuring income management measures are compliant with the Racial
Discrimination Act
(2009). At http://www.humanrights.gov.au/racial_discrimination/publications/RDA_income_management2009_draft.html (viewed 18 May 2010).
[54] Committee on the Elimination of Racial Discrimination, ‘Correspondence to
the Australian Government following up on the Early Warning and Urgent Action
Procedure on the issues raised before the Committee in relation to the Northern
Territory Emergency Response’ (28 September 2009), at http://www2.ohchr.org/english/bodies/cerd/docs/early_warning/Australia28092009.pdf (viewed 20 January 2010); Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, Addendum: The Situation of
Indigenous Peoples in Australia
, UN Doc A/HRC/15/ (2010) at http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010); Special Rapporteur on the situation of human rights and
fundamental freedoms of Indigenous people, the Special Rapporteur on violence
against women, its causes and consequences, and the Special Rapporteur on
contemporary forms of racism, racial discrimination, xenophobia and related
intolerance, Correspondence to Australian Government regarding the Northern
Territory Emergency response
(10 October 2007); Committee on Economic,
Social and Cultural Rights, Concluding Observations of the Committee on
Economic, Social and Cultural Rights: Australia,
UN Doc E/C.12/AUS/CO/4
(2009), para 15 at http://www2.ohchr.org/english/bodies/cescr/docs/AdvanceVersions/E-C12-AUS-CO-4.doc (viewed 20 January 2010); Human Rights Committee, Concluding Observations of
the Human Rights Committee: Australia
, UN Doc CCPR/C/AUS/CO/5 (2009), para
14, at http://www2.ohchr.org/english/bodies/hrc/docs/co/CCPR-C-AUS-CO-5.doc
(viewed 20 January 2010). The ICERD Committee requested the government to
provide information in its report for the Australia’s forthcoming review
on its efforts to bring the NTER measures into full compliance with CERD.
Committee on the Elimination of Racial Discrimination, ‘Correspondence to
the Australian Government following up on the Early Warning and Urgent Action
Procedure on the issues raised before the Committee in relation to the Northern
Territory Emergency Response’ (28 September 2009), at http://www2.ohchr.org/english/bodies/cerd/docs/early_warning/Australia28092009.pdf (viewed 20 January 2010.
[55] Social Security and Other Legislation Amendment (Welfare Reform and
Reinstatement of Racial Discrimination Act) Bill 2009l; Families, Housing,
Community Services and Indigenous Affairs and Other Legislation Amendment (2009
Measures) Bill 2009.
[56] Australian Human Rights Commission, Submission to the Senate Committee on
Community Affairs Inquiry on
Welfare
Reform and Reinstatement of Racial Discrimination Act Bill 2009 and other
Bills
(2010). At http://humanrights.gov.au/legal/submissions/sj_submissions/2010_welfare_reform.html (viewed 18 May 2010).
[57] The
RDA explicitly excludes from the ‘special measures’ exemption laws
that authorise management of property without the consent of Aboriginal and
Torres Strait Islander people or prevent them from terminating management by
another of land owned by them (see ss 8(1), 10(3),
RDA).
[58] Special Rapporteur on
the situation of human rights and fundamental freedoms of indigenous people, Addendum: Situation of Indigenous Peoples in Australia (2010), UN Doc
A/HRC/15, para 27. At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010).
[59] Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Addendum: Situation of Indigenous Peoples in Australia (2010), UN Doc A/HRC/15. At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010).
[60]See Native Title Amendment Act 2007 (Cth) and the Native Title Amendment
(Technical Amendments) Act 2007
(Cth). For further information, see
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007
(2008), pp 24-27.
[61]Yorta Yorta v
Victoria
(2002) 214 CLR 422. See also H McRae et al, Indigenous Legal
Issues
(4th ed, 2009), p
348.
[62] Committee on the
Elimination of Racial Discrimination, Concluding Observations: Australia,
UN Doc CERD/C/AUS/CO/14 (2005), paras 16-18. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CERD.C.AUS.CO.14.En?Opendocument (viewed 4 May 2010).
[63] See
also the recommendations on native title by the Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous people: Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people Addendum: Situation of Indigenous Peoples in Australia , UN Doc A/HRC/15 (2010). At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010).
[64] K G
Rowley, K O’Dea, I Anderson, R McDermott, K Saraswati, R Tilmouth, I
Roberts, J Fitz, Z Wang, A Jenkins, J D Best, Z Wang and A Brown, Lower than
expected morbidity and mortality for an Australian Aboriginal population:
10-year follow-up in a decentralised community
(2007).

[65] In September 2007 a
Memorandum of Understanding was signed between the Australian Government and the
Northern Territory (NT) Government, assigning responsibility for the delivery of
municipal and essential services to Territory outstations to the NT Government,
starting 1 July 2008. In response, the NT Government released its
‘Outstations/homelands policy’ in May 2009 (Northern Territory
Government, Working Future – fresh ideas / real results: Outstations/
Homelands Policy
(2009). At http://www.workingfuture.nt.gov.au/download/Headline_Policy_Statement.pdf (viewed 20 July 2009)). The COAG’s ‘National Partnership Agreement
on Remote Service Delivery’ has similarly identified 15 priority locations
in the Northern Territory to receive for the delivery of services. (Council of
Australian Governments, National Partnership Agreement on Remote Service
Delivery
(2009). At http://www.federalfinancialrelations.gov.au/content/national_partnership_agreements/OT003/remote_service_delivery_np.rtf (viewed 20 July 2009)).
[66] Similar recommendations were also made for supporting homelands by the Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people (Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, Addendum: Situation of Indigenous
Peoples in Australia
(2010), UN Doc A/HRC/15. At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010)).
[67] Australian Human Rights Commission, Bringing them home: National Inquiry into
the Separation of Aboriginal and Torres Strait Islander Children from Their
Families
(1997). At: http://www.hreoc.gov.au/social_justice/bth_report/report/index.html (viewed 23 September 2008).
[68]Senate Standing Committee on Legal and Constitutional Affairs, Unfinished business: Indigenous stolen wages (2006). At http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/report/index.htm (viewed 23 September 2008).
[69] Attorney-General’s Department, Australia’s Human Rights
Framework
(2010).
[70] Department of Prime Minister and Cabinet, Social inclusion in Australia: how
Australia is faring
,
(2010)
[71] K Dunn, Challenging Racism: The Anti-Racism Research Project. At
http://www.uws.edu.au/social_sciences/soss/research/challenging_racism (viewed
10 September 2009).
[72] K Dunn, Constructing Regionally Appropriate Anti-Racism Strategies Project. At http://www.uws.edu.au/social_sciences/soss/research/challenging_racism/surveys (viewed 10 September 2009).
[73] A Markus, Mapping Social Cohesion Report, Scanlon Foundation (2009), p3 http://www.globalmovements.monash.edu.au/news/documents/Social%20Cohesion%20Report%202009_final.pdf
[74] A Markus, Mapping Social Cohesion Report, Scanlon Foundation (2007). At http://www.globalmovements.monash.edu.au/Mapping%20Social%20Cohesion.pdf (Viewed at 10 September
2009).
[75] A Markus, Mapping
Social Cohesion Report
, Scanlon Foundation (2007). At http://www.globalmovements.monash.edu.au/Mapping%20Social%20Cohesion.pdf (Viewed at 10 September
2009).
[76] Australian Human
Rights Commission, Annual Report 2008-2009, (2009), p67,
70
[77] Y Paradies, ‘A
systematic review of empirical research on self reported racism and
health’ (2006) International Journal of Epidemiology, p 1.
[78] VicHealth and the Victorian
Office of Multicultural Affairs, More than tolerance: embracing diversity for
health
, (2006) p1. At http://www.vichealth.vic.gov.au/~/media/ProgramsandProjects/MentalHealthandWellBeing/DiscriminationandViolence/MoreThanTolerance/DCASv2%204%20%20FINAL%20060907.ashx (viewed at 10 September 2009).
[79] B Baird, Stronger,
simpler, smarter ESOS: supporting international students
(Review of the Education Services for Overseas Students (ESOS) Act 2000, February 2010).
At http://www.aei.gov.au/AEI/GovernmentActivities/InternationalStudentsTaskforce/ReviewESOSAct.htm
[80] Australian Education
International, 2009 Annual International Student Statistics. At http://aei.gov.au/AEI/MIP/Statistics/StudentEnrolmentAndVisaStatistics/2009/2009_Annual.htm

[81] Organisation for Economic Cooperation and Development, Education at a Glance 2009, (2009). At http://www.oecd.org/document/62/0,3343,en_2649_39263238_43586328_1_1_1_1,00.html#4

[82] H Babacan, J Pyke, A Bhathal, G Gill, M Grossman and S Bertone, The Community
Safety of International Students in Melbourne: A Scoping Study
, Institute
for Community, Ethnicity and Policy Alternatives (2010). At http://www.vu.edu.au/sites/default/files/icepa/pdf/The%20Community%20Safety%20of%20International%20Students%20in%20Melb%20A%20Scoping%20Study.pdf
[83]The Community Safety of
International Students in Melbourne: A Scoping Study
,
p3
[84] S Marginson, C Nyland, E
Sawir and H Forbes-Mewett, International Student Security (2010)
[85] Human Rights and Equal
Opportunity Commission, Racist violence: report of national enquiry into
racist violence in Australia
(1991).
[86] Australian Human
Rights Commission, In Our Own Words: African Australians: A review of human
rights and social inclusion issues,
(2010). At http://www.hreoc.gov.au/africanaus/index.html
[87] Australian Bureau of
Statistics, Country of Birth (Region) of Person by year of Arrival in
Australia
(2006 census table, Cat. No.
2068.0).
[88] Australian Bureau
of Statistics, Country of Birth (Region) of Person by year of Arrival in
Australia

[89] Department of
Immigration and Citizenship, The people of Australia: statistics from the
2006 census
, (2008), p3-7
[90] Australian Bureau of
Statistics, Labour force status and other characteristics of recent
migrants
, (Cat. No. 6250.0, November 2007). At http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/7A12ECFE4A0E12D5CA2574560014CD36/$File/62500_nov%202007.pdf
[91] International Organisation
for Migration, The impact of the global financial crisis on migration and
migrant workers
(March 2009). At http://www.egypt.iom.int/Doc/IOM%20Policy%20Brief%20Financial%20Crisis.pdf (viewed 10 September 2009).
[92] Productivity Commission, Economic Impacts of Migration and Population Growth (2006) At http://www.pc.gov.au/projects/study/migrationandpopulation/docs/finalreport (viewed 10 September 2009).
[93] Australian Human Rights Commission, Annual Report 2008-2009, (2009),
p70
[94] Y Paradies, L
Chandrakumar, N Klocker, M Frere, K Webster, M Burrell and P McLean, Building
on our strengths: a framework to reduce race-based discrimination and support
diversity in Victoria
, Victorian Health Promotion Foundation,
(2009)
[95] Australian Bureau of
Statistics. Adult Literacy and Life Skills Survey (2008) Catalogue No.
4228.0. p. 2.
[96] R Rudd, I
Kirsch and K Yamamoto, Literacy and health in America (Educational
Testing Service Policy Information Report, April
2004).
[97] M Eisenbruch and C
Gershevitch, Building a Culturally Competent Workforce (2003) 4, Australian Mosaic, p.
20-22.
[98] E Felner, A New
Frontier in Economic and Social Rights Advocacy?
Centre for Economic and
Social Rights, (2009) p15. At http://www.cesr.org/downloads/A%20new%20frontier%20in%20ESC%20advocacy.pdf (viewed at 10 September 2009).
[99] F Mansouri, L Jenkins, L
Morgan, and M Taouk, The Impact of Racism upon the Health and Wellbeing of
Young Australians, Foundation for Young Australians
, Foundation for Young
Australians, (2009), p40. At
http://www.fya.org.au/wpcontent/uploads/2009/11/Impact_of_Racism_FYA_re…
[100] Australian Human Rights Commission, In Our Own Words: African Australians: A
review of human rights and social inclusion issues,
(2010), p14.
[101] The first phase of the
World Programme focuses on primary and secondary level
schooling.
[102] 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.
[103] Australian Human Rights
Commission, A Human Rights Guide to Australia’s Counter-Terrorism
Laws
, (2009). At http://www.humanrights.gov.au/legal/publications/counter_terrorism_laws.html.
[104] J Clarke, Report of
the Clarke Inquiry into the Case of Dr Mohamed Haneef
(November 2008). At: http://www.haneefcaseinquiry.gov.au/ (viewed 5 May 2010).
[105] 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.
[106] 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.”
[107] 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.hreoc.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.hreoc.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: N 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 J Lewis, ‘Out of the Shadows’, Law Society
Journal
(February 2007) 17; 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.
[108] United
Nations Committee on the Elimination of Racial Discrimination, note, para
23.
[109] In 2001, the
Migration Act was amended to designate a number of islands as ‘excised
offshore places’. A person who becomes an unlawful non-citizen (a
non-citizen without a valid visa) by entering Australia at such a place is
referred to as an ‘offshore entry person’. The purpose of these
amendments was to bar offshore entry persons from being able to apply for a
visa, unless the Minister for Immigration determines that it is in the public
interest to allow them to do so. See Migration Act 1958 (Cth), ss 5(1),
46A. 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 on Christmas
Island.
[110]Migration Act
1958
(Cth), ss 189 (1),
189(2).
[111]Migration Act
1958
(Cth), s 196(1).
[112] 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 (viewed 14 April 2010).
[113] Australian Human Rights Commission, Submission to the Senate Standing
Committee on Legal and Constitutional Affairs on the Migration Amendment
(Immigration Detention Reform) Bill 2009
(2009). At http://humanrights.gov.au/legal/submissions/2009/20090731_migration.html (viewed 14 April 2010).
[114] See, for example Australian Human Rights Commission, 2008 Immigration
detention report
: Summary of observations following visits to
Australia’s immigration detention facilities
(2009). At http://humanrights.gov.au/human_rights/immigration/idc2008.html (viewed 5 May 2010).
[115] Commonwealth of Australia, Combined Fifteenth, Sixteenth and Seventeenth
Periodic Reports of the Government of Australia under Article 9 of the
International Convention on the Elimination of all Forms of Racial
Discrimination
(2009), para
278.
[116] Australian Human
Rights Commission, 2008 Immigration detention report, note 114, section 7.
[117] Department of
Immigration and Citizenship, Community and Detention Services Division, Immigration Detention Statistics Summary (2 April 2010). At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 6 May 2010).
[118] As
above.
[119] Commonwealth of
Australia, note 115,
p114.
[120] Department of
Immigration and Citizenship, note 117.
[121] Department of Immigration and Citizenship, note 117.
[122] See, for example Australian Human Rights Commission, 2008 Immigration
detention report
, note 114, section 6; Australian Human
Rights Commission, 2009 Immigration detention and offshore processing on
Christmas Island
(2009), section 10, at http://humanrights.gov.au/human_rights/immigration/idc2009_xmas_island.html (viewed 5 May 2010).
[123] Department of Immigration and Citizenship, ‘Immigration detention services
contract signed’ (Media Release, 29 June 2009). At http://www.newsroom.immi.gov.au/media_releases/726 (viewed 4 May 2010).
[124] Commonwealth of Australia, note 115, pp 66-67. For further
information about the Commission’s inspections, see http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_3.
[125] The Commission’s immigration detention inspection reports are available at http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_4.
[126] Australian Human Rights Commission, 2008 Immigration detention report,
note 116.
[127]Optional Protocol to the Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment
(2002) (OPCAT). At http://www2.ohchr.org/english/law/cat-one.htm (viewed 4 May 2010). The Australian Government has signed OPCAT, but has not yet
ratified it.
[128] In 2008, the
Commission released a report of research it commissioned into options for
implementing OPCAT in Australia. The report suggests a mixed National Preventive
Mechanism (NPM) model, with separate NPMs in each state and territory and a
national coordinating NPM. The report suggests that the Commission should be the
national coordinating NPM. See Report to the Australian Human Rights Commission
by Professors Richard Harding and Neil Morgan, Centre for Law and Public Policy,
The University of Western Australia, Implementing the Optional Protocol to
the Convention against Torture: Options for Australia
(2008). At
http://www.humanrights.gov.au/human_rights/publications/opcat/index.html (viewed 4 May 2010).
[129] See
Commonwealth of Australia, note 115, p 67; Australian Human
Rights Commission Act (1986)
(Cth), s
11(1)(f).
[130]Australian
Human Rights Commission Act (1986)
(Cth), s
46.
[131]Optional Protocol
to the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment
(2002) (OPCAT). At http://www2.ohchr.org/english/law/cat-one.htm (viewed 4 May 2010). The Australian Government has signed OPCAT, but has not yet
ratified it.
[132] 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 (viewed 4 May 2010).
[133]Migration Act 1958 (Cth),
s4AA.
[134] See C Evans, note 112.
[135] The Commission’s concerns are set out in further detail in the following:
Australian Human Rights Commission, 2009 Immigration detention and offshore
processing on Christmas Island
(2009), note 122, section 11; Australian
Human Rights Commission, 2008 Immigration detention report, note 114, section 14; 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://humanrights.gov.au/legal/submissions/2010/201004_OHCHR_child_migration.html (viewed 5 May 2010).
[136] For
further details, see Australian Human Rights Commission, 2008 Immigration
detention report
, note 114, section 14; Australian
Human Rights Commission, 2009 Immigration detention and offshore processing
on Christmas Island
, note 122, section
11.
[137] Department of
Immigration and Citizenship, note 117.
[138] On the mainland there were 70 children in immigration transit accommodation and
14 children in immigration residential housing. On Christmas Island there were
160 children in the ‘construction camp’ immigration detention
facility. These facilities have a much lower level of security than the high
security immigration detention centres, and in that sense they are preferable.
However, people detained in these facilities remain in immigration detention
– they are not free to come and
go.
[139] In 2005, the Minister
for Immigration was granted the power to issue a ‘residence
determination’ permitting an immigration detainee to live at a specified
residence in the community instead of in an immigration detention facility. This
is known as ‘community detention’. People in community detention are
still immigration detainees in a legal sense, but they are not under physical
supervision. They are generally free to come and go, subject to meeting
conditions such as living at a specified address, reporting to DIAC on a regular
basis, and refraining from engaging in paid work or a formal course of
study.
[140] Department of
Immigration and Citizenship, note 117.
[141] See A last resort, note 132.
[142] Department of Immigration and Citizenship, note 117.
[143] The Migration Act was amended in 2001 to designate a number of islands as
excised offshore places. A person who becomes an unlawful non-citizen by
entering Australia at such a place is referred to as an offshore entry person.
The purpose of these amendments was to bar offshore entry persons from being
able to apply for a visa (including a protection visa) unless the Minister for
Immigration determines that it is in the public interest to allow them to do so.
See Migration Act 1958 (Cth), ss 5(1),
46A.
[144] Australian Human
Rights Commission, 2009 Immigration detention and offshore processing on
Christmas Island
, note 122.
[145] See Australian Human Rights Commission, 2009 Immigration detention and
offshore processing on Christmas Island
, note 122, section 3; Australian Human
Rights Commission, 2008 Immigration detention report, note 114, section
13.
[146] 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 (viewed 15 April 2010).
[147] According to information provided by the Department of Immigration and
Citizenship on 12 April 2010, the suspension will be applied as follows. In the
case of asylum seekers from Sri Lanka or Afghanistan who are intercepted at sea
or who arrive in an excised offshore place on or after 9 April 2010, all
processing relating to their asylum claims will be suspended. In the case of
asylum seekers from Sri Lanka or Afghanistan who apply for refugee status on the
Australian mainland on or after 9 April 2010, the processing of their
applications will be accorded the lowest processing
priority.
[148] Australian
Human Rights Commission, ‘Suspension of processing asylum seekers raises
serious concerns’ (Media Release, 9 April 2010). At http://humanrights.gov.au/about/media/media_releases/2010/29_10.html (viewed 15 April 2010).
[149] ICERD article 1.2.
[150] United
Nations Committee on the Elimination of Racial Discrimination, General
Recommendation 30: Discrimination Against Non Citizens
, UN Doc 01/10/2004,
(2004), para 9.
[151] United
Nations Committee on the Elimination of Racial Discrimination, Opinion of the
Committee on the Elimination of Racial Discrimination under article 14 of the
International Convention on the Elimination of All Forms of Racial
Discrimination: Communication No. 31/2003 : Slovakia
, UN Doc
CERD/C/66/D/31/2003 (2005), para
10.4.
[152] UN Committee on the
Elimination of Racial Discrimination, General Recommendation 14: Definition
of Discrimination (Art. 1, par. 1),
UN Doc 22/03/93
(1993).
[153] The Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people has made similar recommendations (Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous people Addendum: The Situation of Indigenous Peoples in Australia, UN Doc A/HRC/15/
(2010). At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010)).
[154] This was also a recommendation made by Special Rapporteur on the situation of
human rights and fundamental freedoms of indigenous people in his 2010 report on
Australia (Special Rapporteur on the situation of human rights and fundamental
freedoms of indigenous people, Addendum: The Situation of Indigenous Peoples
in Australia
, UN Doc A/HRC/15/ (2010). At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010)).
[155] This has also been recommended by: the Aboriginal and Torres Strait Islander
Social Justice Commissioner (Aboriginal and Torres Strait Islander Social
Justice Commissioner, Social Justice Report 2008 (2008), ch 4; the
Committee on Economic Social and Cultural Rights, (Committee on Economic, Social
and Cultural Rights, Consideration of Reports Submitted by States Parties
Under Articles 16 and 17 of the Covenant, Concluding Observations of the
Committee on Economic, Social and Cultural Rights: Australia
, UN Doc.
E/C.12/AUS/CO/4 (June 2009) at http://www2.ohchr.org/english/bodies/cescr/cescrs42.htm (viewed 18 May 2010)); and the Special Rapporteur on the situation of human
rights and fundamental freedoms of indigenous people (Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous people, Addendum: Situation of Indigenous Peoples in Australia (2010), UN Doc
A/HRC/15, p 30 at http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htmv (viewed 18 May 2010)).
[156] This was also a recommendation of the Committee on Economic Social and Cultural
Rights, (Committee on Economic, Social and Cultural Rights, Consideration of
Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant,
Concluding Observations of the Committee on Economic, Social and Cultural
Rights: Australia
, UN Doc. E/C.12/AUS/CO/4 (June 2009). At http://www2.ohchr.org/english/bodies/cescr/cescrs42.htm (viewed 18 May 2010)).
[157] The Committee on Economic, Social and Cultural Rights has recommended the
Australian Government preserve and promote bilingual education at schools.Committee on Economic, Social and Cultural Rights, Consideration of
Reports Submitted by States Parties Under Articles 16 And 17 Of The Covenant,
Concluding Observations of the Committee on Economic, Social and Cultural
Rights,
Forty-second session Geneva, 4 to 22 May 2009, para 33. At http://www2.ohchr.org/english/bodies/cescr/docs/AdvanceVersions/E-C12-AUS-CO-4.doc (viewed 12 June 2009). Similar recommendations were also made by the Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people (Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, Addendum: Situation of Indigenous
Peoples in Australia
(2010), UN Doc A/HRC/15 at http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm)
(viewed 18 May 2010)) and the Permanent Forum on Indigenous Issues (Economic and
Social Council, Permanent Forum on Indigenous Issues 9th Session,
Draft Report
(2010), UN Doc E/C.19/2010/L.2)..
[158] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2009
(2009), ch 3. At http://www.hreoc.gov.au/social_justice/sj_report/sjreport09/chap3.html (viewed 18 May 2010).
[159] Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people, Addendum: Situation of Indigenous Peoples in Australia (2010), UN Doc A/HRC/15, para 74. At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010).
[160] See also the recommendations on native title by the Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous people: Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people Addendum: Situation of Indigenous Peoples in Australia , UN Doc A/HRC/15 (2010). At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010).
[161] Similar recommendations were also made for supporting homelands by the Special
Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people (Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, Addendum: Situation of Indigenous
Peoples in Australia
(2010), UN Doc A/HRC/15. At http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm (viewed 18 May 2010)).
[162] The first phase of the World Programme focuses on primary and secondary level
schooling.
[163] 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.”
[164]Optional Protocol to the Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment
(2002) (OPCAT). At http://www2.ohchr.org/english/law/cat-one.htm (viewed 4 May 2010). The Australian Government has signed OPCAT, but has not yet
ratified it.
[165] See A last
resort, note 132.
[166] See Australian Human Rights Commission, 2009 Immigration detention and
offshore processing on Christmas Island
, note 122, section 3; Australian Human
Rights Commission, 2008 Immigration detention report, note 114, section 13.