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International Covenant on Civil and Political Rights – List of issues prior to reporting

Legal Legal
Friday 14 December, 2012

International Covenant on Civil and Political Rights – List of issues prior to reporting

Australian Human Rights Commission Submission to the UN Human Rights Committee

10 August 2012


Table of contents


1 Introduction

This submission is made by the Australian Human Rights Commission,
Australia’s national human rights institution. It outlines a number of
issues that the Commission suggests should be considered by the Human Rights
Committee as it develops a List of Issues Prior to Reporting ahead of
Australia’s preparation of its sixth periodic report regarding the
implementation of the International Covenant on Civil and Political
Rights
(ICCPR).

In these comments, the Commission aims to provide the Committee with
information on a number of key issues that the Commission believes may be
relevant to the Committee in considering Australia’s implementation of the
ICCPR. This submission does not provide a complete assessment of
Australia’s compliance with the ICCPR, but rather draws on the relevant
recent and current areas of Commission work.

The Commission looks forward to further engagement in the Human Rights
Committee’s review of Australia’s sixth periodic report, and will
provide further submissions to the Committee once this report has been lodged
and published.

2 Legal framework for
human rights protection (article 2)

2.1 Federal human
rights legislation

As discussed in the Commission’s submission to the Human Rights
Committee in 2008, Australia’s current system of governance does not
adequately protect the rights set out in the
ICCPR.[1] Many of the international
human rights standards agreed to by the Australian Government, including those
set out in the ICCPR, have not been fully incorporated into Australian law.
Individuals who experience human rights violations are often left without legal
remedies.

During 2009, the Australian Government undertook a National Human Rights
Consultation, seeking a broad range of views regarding the protection and
promotion of human rights. The Commission, and thousands of other individuals
and organisations, contributed to the
Consultation.[2] The Consultation
Committee report, released in October 2009, recommended, among other things,
that the federal Parliament adopt a Human Rights Act.

In April 2010, the Australian Government responded to the national Human
Rights Consultation report by announcing that it would not introduce a Human
Rights Act. Instead, it announced Australia’s Human Rights Framework,
which commits to a variety of measures to strengthen the protection and
promotion of human rights in Australia. While the Commission strongly welcomed
the measures included in the Framework, these measures alone are not sufficient
to address all of the weaknesses in Australia’s system of human rights
protection.

2.2 National
Human Rights Framework

As noted above, in April 2010, the Australian Government responded to the
national Human Rights Consultation report by announcing Australia’s Human
Rights Framework, which commits to a variety of measures to strengthen human
rights protection in Australia, including

  • human rights education for the community
  • a National Action Plan on Human Rights
  • establishing a federal Parliamentary Joint Committee on Human Rights to
    scrutinise existing and new legislation for compliance with Australia’s
    human rights obligations
  • requiring that all new federal legislation be accompanied by a statement of
    compatibility with Australia’s human rights obligations
  • developing a consolidated federal anti-discrimination
    law.[3]

Australia’s Human Rights Framework is informed by seven
core human rights treaties, including the
ICCPR.[4]

2.3 National Human
Rights Action Plan

Although Australia was the first nation to develop a Human Rights Action Plan
(in 1994, following the 1993 World Conference on Human Rights), this Action Plan
and its 2004 update have been widely acknowledged as having had very limited
impact. In the development of a new Action
Plan,[5] the Australian Government has
followed a much improved process, with substantially increased conformity with
the Handbook on National Human Rights Action Plans available from the Office of
the High Commissioner for Human
Rights.[6]

The process has included publication of a Baseline Study assessing key human
rights issues and existing measures. This was informed by the previous National
Human Rights Consultation and by further public consultation on a draft Baseline
Study.

An Exposure Draft of a new National Human Rights Action Plan was released in
December 2011 for consultation. As at 7 August 2012, the new Action Plan was yet
to be finalised and released. In its submission on the Exposure Draft of the
Action Plan,[7] the Commission made a
series of recommendations for enhanced commitments and actions by Australia, a
number of which are addressed in further detail below.

2.4 Human rights
education

The Commission welcomes the Australian Government’s commitment to human
rights education outlined in Australia’s Human Rights Framework.

Under the Framework, the Australian Government has invested over $12 million
in a range of education initiatives to promote a greater understanding of human
rights across the community.

It has also commenced an education and training program for the Commonwealth
public sector, which comprises a range of resources and materials that:

  • aim to assist public sector officials to understand human rights
    obligations
  • strengthen the capacity of legal and policy officers to develop policies,
    programs and legislation that are consistent with human rights
  • provide guidance to administrative decision-makers on relevant human rights
    considerations that they should take into
    account.[8]

While the
Commission welcomes these initiatives, it notes that such training needs to be
comprehensive across agencies and embedded into public service practice.

The Framework also identifies that ‘developing an understanding of
rights and responsibilities, including human rights’, should be an
integral part of a national school
curriculum.[9] The draft national
school curriculum is currently being drafted and parts of it are under
consultation. However, the current draft national school curriculum contains
very limited reference to human rights, including ICCPR
rights.[10] The
Commission considers that human rights education should be embedded as a core
and cross-cutting element across all relevant learning areasof the
curriculum and at all stages of schooling.

This approach will foster an understanding and appreciation for human rights
and encourage students to adopt human rights values in their everyday lives.

3 Protection against
discrimination (articles 2, 3 and 26)

3.1 Consolidation of
Australia’s discrimination laws

The Australian Government released a public Discussion Paper on review and
consolidation of Federal discrimination laws in September 2011.

The Government has committed to introducing new protections against sexual
orientation and gender identity discrimination as part of this process and has
stated the following principles for the review:

  • a reduction in complexity and inconsistency in regulation to make it easier
    for individuals and businesses to understand their rights and obligations under
    the legislation
  • no reduction in existing protections in federal anti-discrimination
    legislation
  • ensuring simple, cost-effective mechanisms for resolving complaints of
    discrimination
  • clarifying and enhancing protections where
    appropriate.[11]

Release of draft legislation is anticipated later in 2012.

3.2 Gender equality
and non-discrimination on the basis of sex

(a) Participation in
public life (article 25)

In 2010 the Australian Government introduced gender equality targets for
appointments to Australian Government boards set at a minimum of 40 per cent
women by 2015 (as at June 2011, women held 35.3 per cent of these board
appointments).[12] The Commission
has also recommended that gender equality targets are set and reported against
annually within the Australian Public Service including executive level and
senior executive service
positions.[13] The Australian Stock
Exchange Corporate Governance Council introduced reforms in 2011 that provide
for equivalent targets being set within the private
sector.[14] To achieve increased
participation of women in public life, the Commission notes the need to address
the current gender pay gap
(17.4%)[15] and to accommodate
family and caring responsibilities, which are currently predominantly undertaken
by women.[16]

(b) Violence against
women (articles 2, 3, 7 and 26)

The Commission welcomed the adoption in 2011 of the Australian
Government’s National Plan to Reduce Violence against Women and their
Children, 2010–2022
. A National Plan Implementation Panel consisting
of government and NGO representatives was recently established, but neither the
first three-year national implementation plan has been released nor all
jurisdictional implementation plans developed. Similarly, the National Centre
for Excellence and the data collection frameworks and mechanisms have not been
developed.

The Commission has concerns about the lack of consultation regarding the
plan, specifically with non-governmental organisations, service providers and
communities, and that there has not been coordinated implementation of the
National Plan across federal and state/territory governments. The Commission is
also concerned about the unavailability of sufficient, dedicated, sustainable
resources for both preventative and response based services. The Commission has
called for independent monitoring and evaluation mechanisms to be established
for the National Plan; currently no such mechanisms have been established.

The Commission notes that during the study tour to Australian in 2012 of the
UN Special Rapporteur on violence against women, its causes and consequences to
Australia, a key issue raised by participants was the lack of specific programs
and services under the National Plan to address the specific needs of Aboriginal
and Torres Strait Islander women, women with disability, migrant and refugee
women, sex and gender diverse women and older women.

Research suggests high rates of violence, abuse and neglect of women and
girls with disability in institutional
settings.[17] Women with
disabilities may experience violence for longer periods of time due to
inadequate pathways to safety, reluctance to report incidents for fear of
reprisal, or a lack of confidence in authorities and the justice system. Even
where reports are made, victims are commonly not believed, or institutions
respond by treating them as ‘incidents’ to be managed internally,
rather than addressing them as alleged
crimes.[18] The Commission agrees
with the Committee on the Elimination of Discrimination against Women’s
recommendation that the Australian Government ‘address, as a matter of
priority, the abuse and violence experienced by women with disabilities living
in institutions or supported
accommodation’.[19]

(c) Domestic violence as
a ground of discrimination (article 2, 3 and 26)

The Commission is aware that individual women and men may be discriminated
against in areas such as employment and accommodation because they either have
been, or are currently, in a violent domestic or family situation. Such
discrimination takes many forms, for example, in the employment context where
discrimination against victims and survivors may include being denied leave or
flexible work arrangements to attend to violence-related matters (such as moving
into a shelter) or termination of employment for violence-related reasons. The
Commission has called on the Australian Government to include a new ground of
discrimination covering domestic and family violence within its new consolidated
equality law.[20] The Commission has
also called for employment laws to be amended to allow for employees to access
leave and flexible working arrangements, for the purposes of addressing domestic
and family violence and related issues.

3.3 Discrimination on
the basis of disability

(a) Access to justice
for people with communication impairment in the criminal justice system
(articles 2, 9 and 10)

The Commission is concerned about access to justice for people (suspects,
offenders, victims and witnesses) with a communication impairment. These people
include people with an intellectual disability, people who use augmentative or
alternative forms of communication, people with Acquired Brain Injury, people
with cerebral palsy who have communication problems, people who are deaf and use
sign language, people who have a hearing impairment and people who have little
or no speech.

The issues include the capacity of people with a communication impairment to
give evidence and to initiate or defend proceedings, and the treatment of people
with a communication impairment by police, judges, lawyers and other court
personnel. The Commission is also concerned about the accessibility of court
processes such as access to interpreters to facilitate communication.

(b) Sterilisation of
women and girls with a disability (articles 7 and 17)

The Commission is concerned that non-therapeutic sterilisation of women and
girls with disability continues to occur in Australia and that rates of such
sterilisations may be increasing. This is despite the requirement that the
Family Court of Australia or a state or territory guardianship tribunal
authorise the performance of such sterilisations.

Concerns about non-therapeutic sterilisation of women and girls with
disability were highlighted during Australia’s first Universal Periodic
Review by the UN Human Rights
Council.[21] The Committee on the
Rights of the Child and the CEDAW Committee have also expressed concern
regarding non-therapeutic sterilisation, noting that forced sterilisation is a
form of gender-based violence and consequently a form of discrimination against
women,[22] and have urged the
Government to enact national legislation prohibiting the practice, except where
there is a serious threat to life or
health.[23] The Commission considers
that the gravity and irreversible consequences of sterilisation makes this a
significant human rights issue. The Commission has called on the Australian
Government to enact legislation prohibiting the sterilisation of women and girls
with disability, except in cases of serious threat to life or health of a child,
or with the informed consent of an
adult.[24]

3.4 Discrimination on
the basis of race

(a) Racial hatred
(article 20)

Australia currently has a reservation to article 4(a) of the International
Convention on the Elimination of All Forms of Racial Discrimination
(ICERD)
which requires States to implement criminal sanctions for racial violence and
the dissemination of ideas based on racial superiority or hatred. While certain
Australian states and territories have provisions which criminalise acts of
violence motivated by racial hatred or prejudice, federal law does not contain
provisions that allow racist motivations to be taken into account when charging
or sentencing offenders.

In response to the Universal Periodic Review process, the Australian
Government has committed to review all reservations against international human
rights conventions. The Commission has recommended that its reservation to
article 4(a) of ICERD be reviewed.

(b) Religious
discrimination and hatred (articles 18 and 20)

While a number of states and territories have laws which prohibit religious
discrimination and in some cases vilification, there is currently no protection
against discrimination or hatred on the basis of religion in federal
discrimination law. Under the Australian Human Rights Commission Act 1986 (Cth) the Commission may accept and inquire into complaints alleging religious
discrimination in employment and occupation but this does not give rise to
enforceable remedies.

In its submission to the consolidation of Commonwealth anti-discrimination
laws, the Commission recommended that the Australian Government consider
extending protections against religious discrimination to all areas of public
life currently covered by federal discrimination law.

3.5 Discrimination on
the basis of age (articles 2 and 26)

(a) Workers
compensation

A number of Australia’s worker’s compensation schemes
discriminate against older workers. Australia has 11 different schemes,
including one in each state and territory and three federal schemes. Most of
Australia’s workers compensation schemes contain an age limit at which
point workers are no longer covered for income replacement. In most
jurisdictions, the age at which income replacement is cut off or limited is
65.[25] The Commission welcomes
recent moves by the Australian Government to review the three federal schemes,
but notes that state and territories must follow suit in order to provide
coverage for all Australian workers, regardless of age.

(b) Superannuation
schemes

The Australian Government has also recently made changes to extend the
superannuation guarantee to cover all Australian workers regardless of age
(which will come into effect July 2013). The Commission welcomes this initiative
but notes that some aspects of the superannuation scheme continue to limit the
contributions that people can make after the age of 75. People over 75 are not
able to make concessional and non-concessional
contributions.[26] The Commission is
concerned that these limitations discriminate against people over 75 who
continue to work and meet the superannuation contribution rules. Contributing to
superannuation is one of the most effective ways to ensure social insurance in
retirement.

3.6 Discrimination on
the basis of sexual orientation, sex, or gender identity (articles 2 and
26)

There is currently inadequate protection from discrimination on the basis of
sexual orientation, sex and/or gender identity in federal
laws.[27] However, the Australian
Government has committed to including ‘sexual orientation and gender
identity’ as protected attributes in yet to be released consolidated
federal anti-discrimination
legislation.[28] The Commission
welcomes this commitment but recommends that coverage of sexual orientation, sex
characteristics, gender identity and gender expression in a consolidated federal
equality law be framed to achieve the broadest coverage of people of all sex
and/or gender identities and to provide comprehensive protection against
discrimination.[29]

3.7 Marriage equality
(articles 2 and 26)

The Australian Government discriminates against same-sex couples by denying
them the right to marry.[30] The
Commission argues that the fundamental human rights principle of equality means
that civil marriage should be available, without discrimination, to all couples,
regardless of sex, sexual orientation or gender identity. Further, civil
marriages between same-sex couples lawfully entered into in other jurisdictions
should be recognised in
Australia.[31]

An issue resulting from this situation is the inability for trans people, who
are married, to amend their birth certificates to reflect their true gender
identity and have it recognised by
law.[32] Each state and territory
law facilitates the recognition of the affirmed sex of persons who have
undergone some kind of gender affirmation treatment or
surgery,[33] however, to ensure
there are no same-sex marriages the person applying to change their sex must be
unmarried. This means that those who are already married will be forced to make
a choice between remaining married to their spouse or having their true gender
identity recognised by law. Further, to ensure no successful discrimination
complaints can be brought on the basis of marital status the Australian
Government has amended the federal Sex Discrimination Act 1984 (Cth) to
provide that it is not unlawful for a state or territory law to require the
applicant to be unmarried.[34]

4 Aboriginal and Torres
Strait Islander peoples (articles 1, 2, 6, 24, 26 and 27)

4.1 The United
Nations Declaration on the Rights of Indigenous Peoples

Despite Australia declaring its support for the United Nations Declaration
on the Rights of Indigenous Peoples
(the Declaration) in September 2009, the
level of engagement nationally on the implementation of the Declaration has been
low.

The Declaration reflects international standards including those contained
within the ICCPR pertaining to self-determination, non-discrimination and
equality, the right to freely determine one’s political status and to
participate in the political, economic, social and cultural life of the State,
and the right to nationality.

The Australian Government has listed the Declaration within Australia’s
Human Rights Framework as a demonstration of its ongoing commitment to
international human rights
protection.[35] However, the
Commission is concerned that the Australian Government continues to promote the
Declaration as aspirational only.

The Commission is also concerned that the Australian Government asserts that
its policies and legislation are compliant with the Declaration. To date, a
national assessment on compliance with the Declaration has not been conducted
and a number of the United Nations Treaty Bodies including the Committee on the
Elimination of Racial Discrimination, the Committee on the Rights of the Child,
and the Universal Periodic Review have recently raised concerns about the
protection and realisation of the rights of Aboriginal and Torres Strait
Islander peoples in
Australia.[36]

4.2 Constitutional
recognition

Australia’s Constitution does not mention Australia’s first
peoples, permits the Commonwealth Parliament to validly enact laws that are
racially discriminatory, and contemplates disqualifying people from voting on
the basis of their race. The Commission believes that Australia’s
Constitution should be reformed so as to recognise the unique position of
Aboriginal and Torres Strait Islander peoples and remove discrimination. The
Australian Constitution can only be changed by referendum.

In December 2010, the Prime Minister appointed the Expert Panel on
Constitutional Recognition of Indigenous Australians, to examine the options for
the recognition of Aboriginal and Torres Strait Islander peoples within
Australia’s Constitution. The Panel reported in January 2012, making
recommendations for several amendments to the Constitution and regarding the
process of a referendum. The Australian Government has provided $10 million in
funding to Reconciliation Australia to conduct an education campaign as a first
stage in leading up to a national referendum on the
issue.[37]

4.3 Indigenous
representation

The National Congress of Australia’s First Peoples, Australia’s
new national Aboriginal and Torres Strait Islander peoples’ representative
body, was established as a company in April 2010. The Australian Government
committed $30 million to the establishment and operation to 2013 but no further
funding announcement has made.[38] The Commission urges the Australian Government to commit to funding arrangements
to ensure the Congress’ sustainability.

4.4 Stronger Futures
in the Northern Territory

On 21 June 2007, the Australian Government announced a ‘national
emergency response to protect Aboriginal children in the Northern
Territory’ from sexual abuse and family
violence.[39] The Northern Territory National Emergency Response Act 2007 (Cth) (NTNER Act)
was passed by the federal Parliament and received Royal Assent on 17 August
2007. This has become known as the ‘NT intervention’ or the
‘Emergency Response’. This legislation has been in place for the
past five years and many of the measures were due to sunset in August
2012.[40]

In preparation for the sunset of the Northern Territory Emergency Response,
the Australian Government introduced the Stronger Futures in the Northern
Territory legislation. The Stronger Futures Bills were introduced to the House
of Representatives on 23 November 2011 and passed with some amendments on 29
June 2012.[41] This legislation
allows some of the existing Northern Territory Emergency Response measures to
continue and modifies others; and will be in place for ten years.

In summary, the Stronger Futures legislation:

  • repealed the NTNER Act[42]
  • retained existing alcohol bans in prescribed Northern Territory communities
    but introduced the mechanism of community ‘alcohol management plans’
    to transition communities from blanket bans to community developed and owned
    plans[43]
  • amended laws relating to alcohol abuse, including increased penalties for
    possession of less than 1350ml of alcohol in an alcohol protected area to
    include the option of 6 months
    imprisonment[44]
  • amended sections of the social security legislation which enable a new
    process for dealing with unsatisfactory school
    attendance[45] (this change
    accompanied the policy announcement that the School Enrolment and Attendance
    Measures which allow for the suspension of welfare payments would be
    expanded)[46]
  • introduced measures to allow the Commonwealth to amend Northern Territory
    legislation relating to leasing in Community Living Areas and Town Camps in the
    Northern Territory[47]
  • amended the licensing regime for community stores, extending licencing
    requirements beyond stores which accept income managed funds and allowing
    greater assessment and more robust enforcement of regulatory
    measures[48]
  • amended the Classification (Publications, Films and Computer Games) Act
    1995
    (Cth) to continue existing pornography bans and require communities to
    be consulted if they are to be subject to a ban or bans are to be
    removed[49]
  • amended the Crimes Act 1914 (Cth) to introduce an exception to the
    rule preventing consideration of customary law or cultural practice in bail and
    sentencing for certain offences involving cultural
    heritage[50]
  • amended the operation of the income management scheme by allowing recognised
    state/territory authorities to refer people to income management. Recognised
    state/territory authorities or their employees must have ‘functions,
    powers or duties in relation to the care, protection, welfare or safety of
    adults, children or
    families’.[51]

While
the Commission welcomed the intent of the Australian Government to address and
improve the critical situation facing Aboriginal peoples in the Northern
Territory, it is concerned that the measures contained within the Stronger
Futures legislation are intrusive and limiting of individual freedoms and human
rights. It is the Commission’s view that where it is deemed appropriate to
design interventions which infringe on individuals’ human rights, then
that intervention must be the least restrictive on the rights of
individuals.

The Commission has raised a number of over-arching issues including:

  • consultation and engagement with Aboriginal and Torres Strait Islander
    peoples in the formulation of the Bills and implementation of NTNER measures and
    the Stronger Futures legislation
  • governance arrangements in Aboriginal communities in the Northern Territory
    to appropriately respond to the legislation
  • government capacity and cultural competency to implement the Stronger
    Futures measures
  • compliance with the Racial Discrimination Act 1975 (Cth).[52]

As the
Stronger Futures legislation is due to commence in August 2012, ongoing
monitoring will be necessary to assess compliance against human rights
standards.

4.5 Access to
justice

Nationally, Aboriginal and Torres Strait Islander people are 14.3 times more
likely to be imprisoned than non-Indigenous
people.[53] Indigenous juveniles are
28 times more likely to be placed in juvenile detention than their
non-Indigenous counterparts.[54]

These imprisonment rates for Indigenous people are unacceptably high. The
impact of incarceration is compounded because the communities with high
imprisonment rates are already
disadvantaged.[55] This makes them more vulnerable to the disruption and drain caused by
imprisonment, sustaining the cycle of crime.

The Commission remains concerned that since the final report of the Royal
Commission’s Inquiry into Aboriginal Deaths in Custody more than 20 years
ago there is little improvement in Aboriginal and Torres Strait Islander
peoples’ access to justice.

For example, the Commission recently witnessed two devastating examples of
the ramifications of Aboriginal and Torres Strait Islander incarceration and
over-policing with the death of Mulrunji Doomagee on Palm Island in Queensland,
and on the other side of the country, Mr Ward, who died of heat stroke as a
result of being transported from Laverton to Kalgoorlie in the back of a prison
van.[56]

The Commission also remains
concerned about the impact of mandatory sentencing regimes on Aboriginal and
Torres Strait Islander young people. Mandatory sentencing applies to young
people between 10–18 years in Western
Australia.[57] The court must seriously consider a custodial sentence for repeat
offenders on their third proven serious conviction. Victoria has also indicated
its intention to introduce statutory minimum sentences for gross violence
offences.[58]

Mandatory sentencing has an
additional impact on Aboriginal and Torres Strait Islander people as they are
more likely to have criminal histories and inadequate access to diversion
programs.

The Commission has been calling for a new approach to address Aboriginal and
Torres Strait Islander overrepresentation in the justice system by way of
‘justice reinvestment’. Justice reinvestment diverts a portion of
the money that would have been spent on prison to communities where there is a
high concentration of offenders. The funds are then spent on crime prevention,
diversion and support programs.

The Commission has also been advocating for national
justice targets to be included in the Close the Gap strategy. This could include
specific targets to reduce the overrepresentation of Aboriginal and Torres
Strait Islander young people in the juvenile justice system. Setting justice
targets at the Council of Australian Government level will provide
accountability as well as greater cooperation between Commonwealth and state and
territory governments.

4.6 Native
title

Article 27 of the United Nations Declaration on the Rights of Indigenous
Peoples
requires that States shall:

establish and implement, in conjunction with indigenous peoples concerned, a
fair, independent, impartial, open and transparent process, giving due
recognition to indigenous peoples’ laws, traditions, customs and land
tenure systems, to recognize and adjudicate the rights of indigenous peoples
pertaining to their lands, territories and resources, including those which were
traditionally owned or otherwise occupied or used. Indigenous peoples shall have
the right to participate in this process.

The Native Title Act 1993 (Cth) provides the federal legislative
framework for the recognition at common law of the rights of Aboriginal and
Torres Strait Islander peoples to their lands, territories and natural
resources.

However, as previously reported to this Committee, the Commission holds a
number of concerns regarding the recognition of native title in Australia,
including:

  • the inconsistency between the Native Title Act and Australia’s
    international obligations under the Convention on the Elimination of All
    Forms of Racial Discrimination
  • the adversarial nature of the native title system
  • the lack of equality afforded to traditional owners engaging in negotiations
    concerning their lands, territories and natural
    resources.[59]

Since
Australia last appeared before the Committee, the Australian Government has
enacted a number of legislative changes, including amendments to the Native
Title Act, aimed at improving the operation of the native title system. They
include:

  • Native Title Amendment Act 2009 (Cth)
  • Native Title Amendment Act (No 1) 2010 (Cth)
  • The Indigenous Economic Development Strategy
  • Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth).

The Commission acknowledges efforts to increase
the effectiveness and flexibility of the native title system, particularly in
terms of resolving claims and encouraging agreement making. However, the
Commission remains concerned that native title legislative and policy reforms
continue to prioritise the interests of non-Indigenous stakeholders. Amendments
to date do not make any real change that meaningfully achieve the rights and
protect the interests of traditional owners to their lands, territories and
natural resources.

The Commission has recommended an independent review of the Native Title Act
to develop reforms to ensure that the Native Title Act complies with
international standards including the Declaration.

The terms of reference for any such review should be developed in full
consultation with all relevant stakeholders, particularly Aboriginal and Torres
Strait Islander peoples. The review should at least involve an inquiry into:

  • the current burden of proving native title
  • the operation of the law regarding extinguishment
  • the future act
    regime.[60]

5 Asylum seekers and
immigration detention (articles 7, 9, 10, 14 and 24)

5.1 Mandatory and
indefinite detention

The Commission continues to hold concerns about Australia’s system of
mandatory immigration detention which has led to prolonged and indefinite
detention for many people. The Commission has consistently called for an end to
the system of mandatory and indefinite immigration detention because it places
Australia in breach of its obligations under the ICCPR to ensure that no one is
arbitrarily detained.[61]

The Commission welcomes the fact that many people who arrived to Australia by
boat as asylum seekers have been released from closed immigration detention over
the last two years into community based arrangements; either placed into
community detention or granted a bridging visa while their immigration status is
being resolved.[62] However,
Australia’s system of mandatory detention continues to lead to the
prolonged detention of many asylum seekers, refugees and stateless
people.[63] The Commission
acknowledges that the use of immigration detention may be legitimate in certain
circumstances for a strictly limited period of time. To avoid detention being
arbitrary, there should be an individual assessment of the necessity of
detention for each person, as soon as possible after a person is taken into
detention. A person should only be held in an immigration detention facility if
they are individually assessed as posing an unacceptable risk to the Australian
community and that risk cannot be managed in a less restrictive way. Otherwise,
they should be permitted to reside in the community while their immigration
status is resolved – if necessary, with appropriate conditions imposed to
mitigate any identified risks. Australia’s system of mandatory detention
of all unlawful non-citizens is fundamentally inconsistent with this
approach.

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

5.2 Children in
immigration detention

For many years the Commission has repeatedly raised particular concerns about
the mandatory immigration detention of children, the high number of children in
closed immigration detention facilities, and the long periods of time many
children are spending in immigration
detention.[64]

In October 2010 the Australian Government announced that it would begin
moving the majority of children and families into community
detention.[65] In November 2011 it
also announced that following initial health, security and identity checks,
selected asylum seekers who arrive in Australia by boat would be released into
the community on bridging
visas.[66] While
the Commission has welcomed the transfer of a significant number of families and
unaccompanied minors out of closed immigration detention facilities into
community detention, it remains concerned that there are still significant
numbers of children who remain detained in closed
facilities.[67]

5.3 Conditions of
detention

Over the past two years, the Commission has visited immigration detention
facilities in seven locations and produced six reports on the conditions within
those facilities.[68] The
Commission’s main concerns with conditions include the impacts of
detention in remote locations, overcrowding, inadequate health and mental health
services in some facilities, and inadequate provision of education, activities
and excursions in some facilities. People detained in remote locations often
have few opportunities for visitors or excursions and limited access to services
including health care, legal advice and appropriate cultural and religious
support. Holding people in remote locations can make detention operations less
visible, transparent and open to public scrutiny. Finally, the physical
environment is often harsh. Immigration detainees continue to be held in
extremely remote locations, including detention facilities at Christmas Island,
Leonora in the Western Australian desert, Curtin Immigration Detention Centre in
far north Western Australia and the Scherger Royal Australian Air Force base on
Cape York Peninsula in far north Queensland.

5.4 Indefinite
detention of people who have received adverse security assessments and people
who are stateless

The Commission is concerned that the indefinite detention of refugees who
have received adverse security assessments from the Australian Intelligence and
Security Organisation (ASIO) amounts to arbitrary detention, in breach of
article 9(3) of the ICCPR. Refugees with adverse security assessments are
currently not considered for community placement but remain indefinitely
detained in closed facilities. Many of these people have already spent prolonged
periods in detention. Furthermore, security assessment processes are subject to
inadequate procedural safeguards, as refugees who have received adverse
assessments are not told the reasons for ASIO’s decision nor are they
provided with any substantive opportunity for
appeal.[69]

Australian law permits the indefinite detention of people who are
stateless.[70] The Commission holds
serious concerns about the prolonged and indefinite detention of people who have
been assessed by the Australian Government as not being refugees, but who are
stateless or otherwise cannot be returned to their country of origin or habitual
residence. As at 15 May 2012, there were 555 people in closed detention in
Australia who identified as being stateless, 114 of whom had been detained for
over 540
days.[71]

5.5 Third country
processing

The Commission holds serious concerns regarding the stated intention of both
the Australian Government and the political party in opposition to send asylum
seekers who arrive in Australia by boat to third countries for processing of
their claims. There is a high risk that such arrangements will result in
breaches of Australia’s human rights obligations. Transferring asylum
seekers to third countries may lead to serious breaches of Australia’s
international human rights obligations, most significantly, to breaches of
Australia’s non-refoulement obligations (both direct and
indirect),[72] as well as those
relating to non-discrimination[73] and family unity.[74]

6 Issues related to
detention (articles 7, 10 and 14)

6.1 Prolonged
detention of Indonesian nationals suspected of people smuggling offences
including those who say that they are children (articles 9, 10 and
14)

(a) Prolonged pre-charge
detention

The Commission has serious concerns about the length of pre-charge detention
of Indonesian nationals suspected of people smuggling offences, including those
who say that they are children. Individuals suspected of people smuggling
offences are held in immigration detention until they are either removed from
Australia or charged with an offence. The Commission considered the issue of
pre-charge detention in its recent Inquiry into the treatment of individuals
suspected of people smuggling offences who say that they are
children
.[75] The Commission
found that young Indonesians who were ultimately charged with people smuggling
and who ultimately had their prosecutions discontinued, spent an average of 186
days in immigration detention prior to charge. The Australian Federal Police
informed the Commission that the average time taken by the AFP to complete an
investigation is currently 104.5
days.[76] The Commission believes
that these are unacceptably long periods of pre-charge detention.

(b) Mandatory sentencing
of Indonesian nationals convicted of people smuggling offences

The Migration Act provides a mandatory minimum penalty of five years, with a
non-parole period of three years for the aggravated offence of people
smuggling.[77] The Commission
considers that these mandatory minimum sentences imposed on offenders convicted
of the aggravated offence of people smuggling can be disproportionate to their
level of culpability. Generally, people who work as crew on boats that bring
asylum seekers to Australia are recruited from poor fishing communities on the
Indonesian coast. The Commission believes that the majority of those who face
people smuggling charges are low-level crew, who often have little prior
knowledge of the nature or purpose of their role before departing Indonesia. As
a consequence, the Commission considers that the mandatory minimum sentences
currently applicable under s 236B of the Migration Act are not proportionate and
may violate the protection against arbitrary detention in article 9(1) of the
ICCPR. In addition, where a court imposes the mandatory minimum penalty provided
by law for the aggravated offence of people smuggling, there is no right of
appeal against the sentence. The Commission submits that this is in breach of
Australia’s obligations under article 14(5) of the
ICCPR.[78]

(c) Age assessment of
Indonesian nationals suspected of people smuggling offences

The Commission has recently released An age of uncertainty, the report
of the Inquiry into the treatment of individuals suspected of people
smuggling offences who say that they are children
. The Inquiry found that
between late 2008 and late 2011 many young Indonesians suspected of people
smuggling who said that they were children were not given the benefit of the
doubt and treated as children. Instead, their age was assessed by relying on
wrist x-ray analysis, with those assessed to be skeletally mature often spending
long periods of time in detention, including in adult correctional facilities.
It is now clear that many young Indonesians assessed to be adults on the basis
of wrist x-ray analysis were in fact children at the time of their apprehension,
or are very likely to have been children at that time. The approach to the age
assessment of young Indonesians suspected of people smuggling has now changed,
and wrist x-ray analysis is no longer relied upon in practice. However, the
Commission is concerned that there remains a risk that errors in age assessment
may again be made until the Crimes Act 1914 (Cth) is amended to prevent
the use of wrist x-ray analysis as a means of age assessment in the context of
criminal justice proceedings.[79]

6.2 Juveniles
detained with adults (article 10(2)(b))

Australia continues to have a reservation to article 10 of the ICCPR, which
requires that accused juvenile persons be separated from adults.

While in most cases across Australia child offenders are held in specific
juvenile detention facilities, there are instances when young people under 18
years of age may be detained in adult facilities. For example, in the state of
Queensland 17 year olds are treated as adults in the criminal justice and
corrections systems, and consequently they can be placed on remand or sentenced
to a term of imprisonment in adult correctional facilities. A number of
organisations, including the Commission, have raised concerns about the
Queensland law since its introduction, and have recommended that it be
amended.[80] As
required under the Queensland law, the majority of 17 year olds are generally
held separately from the wider prison population. However, they are still held
within adult correctional
centres.[81]

Further, as discussed above with regard to Indonesian minors suspected of
people smuggling who say that they are children, the Commission found that the
Australian Government failed to ensure that children in detention were separated
from adults, as required under the CRC (article 37(c)).

6.3 Ratification of
OPCAT (articles 7 and 10)

The Commission welcomes the Australian Government’s indication of its
intention to accede to the Optional Protocol of the Convention against
Torture
(OPCAT). An inspections regime envisaged under OPCAT would provide
independent monitoring of the conditions in all places of detention including
immigration detention facilities and juvenile and adult correctional facilities.
An independent monitoring mechanism would assist to prevent the mistreatment of
individuals deprived of their liberty in Australia. In June 2012 the federal
Parliament’s Joint Standing Committee on Treaties recommended that
Australia ratify OPCAT.[82] The
Commission urges the Australian Government to ratify OPCAT as soon as possible.

7 Protection from
torture and cruel, inhuman and degrading treatment (article 7)

Although the Commission does not have jurisdiction to monitor the
implementation of the CAT, the Commission has investigated complaints regarding
allegations of violations of the freedom from cruel, inhuman and degrading
treatment under the ICCPR and
CRC.[83]

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

  • the Commission is unable to investigate complaints of a breach of a
    person’s human rights under the CAT
  • the Commission’s function to receive human rights complaints does not
    generally apply to acts or practices that occur in state or territory
    prisons
  • the Commission’s complaints handling function is reactive rather than
    preventative because it deals with individual complaints which occur after the
    breach
  • the Commission has no specific power to compel entry into places of
    detention.[84]

8 Trafficking (articles
2, 3, 7, 8, 9, 12 and 23(3))

The UN Special Rapporteur on Trafficking undertook a formal mission to
Australia in November 2011.

The Special Rapporteur’s report on the mission (to which the Commission
made a submission) was submitted to the UN Human Rights Council in June 2012
with recommendations that Australia:

  • adopt a cohesive national plan of action to prevent and protect trafficked
    persons with clear indicators for measuring outcomes and success
  • develop a new collaborative framework for collecting data on trafficked
    persons
  • increase capacity-building activities for government departments and
    agencies
  • redress weaknesses in the support program and services for trafficking
    victims, in particular in relation to: delinking government support and
    temporary and permanent residency from assistance with the criminal justice
    process; providing specialised services for trafficked children; and improved
    access to legal services, housing and assistance services
  • develop a federal victim’s compensation scheme
  • ensure ongoing regional engagement to strengthen national responses that
    target the causes of trafficking in sending countries, including the creation of
    more opportunities for safe labour
    migration.[85]

The
Special Rapporteur also expressed concern that trafficked persons including
children were arrested, detained for protracted periods of time and deported for
breach of migration regulations without proper identification. The Australian
Government is currently considering these recommendations.

In May 2012, the Australian Government tabled the Crimes Legislation
Amendment (Slavery, Slaverylike Conditions and People Trafficking) Bill 2012 in
the federal Parliament. The Bill seeks to insert offences of forced labour,
forced marriage, organ trafficking and harbouring a victim, as well as extend
the application of existing offences of slavery, deceptive recruiting and
servitude, and increase the penalties for debt bondage.

The Commission welcomed the Exposure Draft Bill for bringing Australian laws
on trafficking and slavery into line with Australia’s human rights
obligations. The Commission has also called for the criminal code to be amended
to ensure that trafficking victims are not liable to prosecution or punishment
for offences committed as a direct consequence of their status as a trafficking
victim.

In relation to the proposed offence for forced marriage, the Commission noted
the importance of undertaking culturally appropriate forms of engagement with
communities within which forced marriage may be occurring. Accessible and
appropriate awareness raising programs need to be undertaken with affected
communities, including provision of culturally aware and linguistically
appropriate information. Cultural competency training should also be provided to
service providers, Australian Federal Police and legal services in ensuring that
any victims of forced marriage are able to access culturally appropriate support
services and accommodation.

9 Legal recognition of
sex in official records (articles 2, 12, 16, 17 and 26)

There are significant limitations in the way that government records and
official documents[86] record sex
and gender.[87] For example, while
Australia has some systems that enable the sex marker on official documents to
be changed, not all people of diverse sex and/or gender can access those
systems. In particular, current systems for changing the sex marker on some
official documents can only be accessed by people who have undergone sex
affirmation surgery.[88] Having
documents that contain accurate information about sex and gender is crucial to
the full participation in society of people who are sex and gender diverse.

The Commission is encouraged by the Australian Government’s commitment
to a number of actions in Australia’s draft National Human Rights Action
Plan which will address some of these
limitations,[89] however a number of
recommendations made by the Commission with regard to this issue remain
outstanding.[90] The Australian
Government should implement the outstanding recommendations from the Sex
Files
report to enable broader access to systems legally recognising sex
identity and by streamlining the process for amending documents to make it more
user-friendly.[91]

10 Homelessness and
public space laws (articles 2, 7, 9, 12, 17, 19, 21 and 22)

As raised in the Commission’s previous submission to the Human Rights
Committee in 2008, people experiencing homelessness are unable to enjoy many of
the human rights set out in the ICCPR to the same extent as other Australians,
including the right to liberty and security of the person, the right to privacy
and the right to non-discrimination. They may also be adversely affected by laws
and policies that regulate public spaces, which are currently in existence
across states and territories. These laws may disproportionately impact on
homeless people, who rely heavily on using public space, and enforcement of the
laws by way of fines or other criminal sanctions exacerbates disadvantage faced
by homeless people. Human rights affected by public space laws include:

  • the right to freedom of movement and freedom of association
  • the right to freedom of expression
  • the right to freedom from cruel, inhuman or degrading treatment or
    punishment.

In 2009, the House of Representatives Standing Committee
on Family, Community, Housing and Youth conducted an Inquiry into homelessness
legislation. It recommended that the Australian Government, in cooperation with
state and territory governments, conduct an audit of laws and policies that
impact disproportionately on people experiencing homelessness, including public
space laws. The Australian Government subsequently committed to introduce
homelessness legislation, and in June 2012, released an exposure draft of the
legislation for comment. However, the Inquiry’s recommendation to conduct
an audit of public space laws has yet to be implemented.

11 Australia’s
reservations to the ICCPR

During Australia’s Universal Periodic Review in 2011, the Australian
Government committed to establishing a systematic process for the regular review
of Australia's reservations to international human rights treaties, which
includes reservations to the
ICCPR.[92] The Commission welcomes
the Australian Government’s commitment to review the reservations and
urges progress on this initiative.


[1] See Australian Human Rights
Commission, Comments to the United Nations Human Rights Committee on issues
relevant to Australia’s fifth periodic report under the ICCPR
(30
September 2008). At http://humanrights.gov.au/legal/submissions/united_nations/20080930_ICCPR.html (viewed 8 August 2012).
[2] Australian Human Rights Commission, Submission to the National Human Rights
Consultation
(June 2009). At http://www.humanrights.gov.au/legal/submissions/2009/200906_NHRC_complete.pdf (viewed 8 August 2012).
[3] For
information on Australia’s Human Rights Framework, see Australian
Government, Australia’s Human Rights Framework, http://www.ag.gov.au/humanrightsframework (viewed 8 August 2012).
[4] Australia’s human rights obligations are considered to be those rights set
out in the following core international instruments: the International
Convention on the Elimination of all Forms of Racial Discrimination
, 1965;
the International Covenant on Economic, Social and Cultural Rights, 1966;
the International Covenant on Civil and Political Rights, 1966; the Convention on the Elimination of All Forms of Discrimination Against
Women
, 1979; the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
, 1984; the Convention on the Rights of
the Child
, 1989; and the Convention on the Rights of Persons with
Disabilities
, 2006.
[5] Documents and updates are available at Attorney-General’s Department, National Human Rights Action Plan, http://www.ag.gov.au/ (viewed 8 August 2012).
[6] Office
of the United Nations High Commissioner for Human Rights, Handbook on
National Human Rights Plans of Action
, Professional Training Series No. 10
(2002). At www.ohchr.org/Documents/Publications/training10en.pdf (viewed 8 August 2012).
[7] Australian Human Rights Commission, Submission to the
Attorney-General’s Department Consultation on Exposure Draft of National
Human Rights Action Plan
(6 March 2012). At http://www.humanrights.gov.au/legal/submissions/2012/20120309_NHRAP.html (viewed 8 August 2012).
[8] For
information on Australia’s Human Rights Framework, see Australian
Government, Australia’s Human Rights Framework, http://www.ag.gov.au/humanrightsframework (viewed 8 August 2012).
[9] Australian Government, Australia’s Human Rights Framework (2010), p
4. At http://www.ag.gov.au/humanrightsframework (viewed 8 August 2012).
[10] As
of June 2011, the draft version of the learning area ‘ethical
understanding’ mentions ‘human rights’ as one possible ethical
framework: see Australian Curriculum, Assessment and Reporting Authority, Ethical Behaviour (2011). At http://www.australiancurriculum.edu.au/GeneralCapabilities/Ethical-behaviour (viewed 8 August 2012). Significant historical human rights events are also
included in the History Curriculum: see Australian Curriculum, Assessment and
Reporting Authority, History (2011). At http://www.australiancurriculum.edu.au/History/Curriculum/F-10 (viewed 8 August 2012). It is also anticipated that human rights will be
included in the ‘civics and citizenship’ learning area currently
under development.
[11] For
documents including the Australian Government’s Discussion Paper and
submissions in response from the Commission and other organisations, see
Australian Government, Australia’s Human Rights Framework,
‘Consolidation of Commonwealth anti-discrimination laws’, http://www.ag.gov.au/ (viewed 8 August 2012).
[12] Australian Government, Gender Balance on Australian Government Boards Report
2010–2011
(2012). At http://www.fahcsia.gov.au/our-responsibilities/women/publications-articles/government-international/gender-balance-on-australian-government-boards-report-2010-2011 (viewed 8 August 2012).
[13] Australian Human Rights Commission, Submission to the
Attorney-General’s Department Consultation on Exposure Draft of National
Human Rights Action Plan
(6 March 2012). At http://www.humanrights.gov.au/legal/submissions/2012/20120309_NHRAP.html (viewed 8 August 2012).
[14] Australian Institute of Company Directors, Gender Diversity on Boards
–Statistics: Appointment to ASX 200 Boards
(2012). At http://www.companydirectors.com.au/Director-Resource-Centre/Governance-and-Director-Issues/Board-Diversity/Statistics (viewed 8 August 2012).
[15] In
June 2012, Fair Work Australia made an equal remuneration order to increase pay
by up to 45 per cent over eight years for workers in the highly feminised social
and community services sector: Fair Work Australia, Equal Remuneration
Case
, http://www.fwa.gov.au/index.cfm?pagename=remuneration&page=introduction (viewed 8 August 2012). The Australian Government is also currently considering
reforms to the Equal Opportunity for Women in the Workplace Act 1999 (Cth), which include focusing on gender equality, equal pay, and establishing
gender equality indicators. The Commission has welcomedthe proposed
reforms to the Act.
[16] The
Australian Government introduced a paid parental leave scheme in 2011 which
provides government-funded parental leave pay at the national minimum wage for
18 weeks and an additional two weeks paid parental leave for partners of the
primary care giver: Department of Families, Housing, Community Services and
Indigenous Affairs, Parental Leave Scheme, http://fahcsia.gov.au/our-responsibilities/families-and-children/programs-services/paid-parental-leave-scheme (viewed 8 August 2012).
The Commission has called for:

  • amending the National Employment Standard to extend ‘right to
    request’ provisions to accommodate family and caring responsibilities,
    including caring for older people and people with disabilities
  • reviewing the provision of superannuation on paid parental leave and
    extending the superannuation co-contribution scheme
  • ensuring effective and equitable access to affordable and appropriate child
    care, early childhood education and out-of-school care.

See
further, Australian Human Rights Commission, Consultation on exposure draft
National Human Rights Action Plan: Australian Human Rights Commission Submission
to the Attorney-General’s Department
, at http://humanrights.gov.au/legal/submissions/2012/20120309_NHRAP.html#Heading233 (viewed 8 August 2012).
[17] See
Disability Representative, Advocacy, Legal and Human Rights Organisations, Australian Civil Society Shadow and Baseline Report to the UN Committee on
the Rights of Persons with Disabilities
(June 2012). At http://www.daru.org.au/resource/australian-civil-society-shadow-and-baseline-report-to-the-un-committee-on-the-rights-of-persons-with-disabilities (viewed 8 August 2012); J Dillon, Violence Against People with Cognitive
Impairments: Report from the Advocacy/Guardianship Program
, Office of
the Public Advocate, Victoria (2010). At http://www.publicadvocate.vic.gov.au/file/file/Research/Reports/Violence%20and%20disability%20report%202010.rtf (viewed 8 August 2012); S Price-Kelly and M Attard, Accommodating
Violence: The Experience of Domestic Violence and People with Disability Living
in Licensed Boarding Houses
, People with Disability Australia (2010). At http://www.pwd.org.au/documents/pubs/Accommodating%20Violence%20Report.doc (viewed 8 August 2012). More than two Department of Human Services clients were
attacked every day on average in Victoria, with almost 1800 assaults, sex
attacks or rape allegations reported in the period January 2009 – July
2011. In more than 500 cases (approximately 28%) state-appointed staff and
carers were accused: see P Mickelburough,Carers prey on
vulnerable children and the disabled’, Herald Sun, 13 February
2012. At
http://www.heraldsun.com.au/news/more-news/carers-prey-on-vulnerable-children-and-the-disabled/story-fn7x8me2-1226269125327 (viewed 3 August 2012).
[18] See
the issues raised in the Australian Human Rights Commission, Report of the UN
Special Rapporteur on Violence against Women Australian Study Tour
, April
2012 (forthcoming 2012); J Dillon, Violence Against People with Cognitive
Impairments: Report from the Advocacy/Guardianship Program
, Office of
the Public Advocate, Victoria (2010). At http://www.publicadvocate.vic.gov.au/file/file/Research/Reports/Violence%20and%20disability%20report%202010.rtf (viewed 8 August 2012).
[19] Committee on the Elimination of Discrimination against Women, Concluding
Observations: Australia
, UN Doc CEDAW/C/AUL/CO/7 (2010), para 43. At http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/485/48/PDF/N1048548.pdf?OpenElement (viewed 8 August 2012).
[20] See
Australian Human Rights Commission, Supplementary submission to the
Attorney-General’s Department Consolidation of Commonwealth Discrimination
Law – Domestic and Family Violence
(23 January 2012). At http://humanrights.gov.au/legal/submissions/2012/20120123_consolidation.html (viewed 8 August 2012).
[21] Human Rights Council, Report of the Working Group on the Universal Periodic
Review: Australia
, UN Doc A/HRC/17/10 (24 March 2011). At http://www.ohchr.org/EN/HRBodies/UPR%5CPAGES%5CAUSession10.aspx (viewed 8 August 2012 2012), as cited in Australian Human Rights Commission, Report of the UN Special Rapporteur on Violence against Women Australian
Study Tour
, April 2012 (forthcoming
2012).
[22] Committee on the
Elimination of All forms of Discrimination against Women, General
Recommendation No. 19 adopted at the 11th session
(1992). At http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19 (viewed 8 August 2012); R Coomaraswamy, Violence against Women (Addendum):
Policies and Practices that Impact Women’s Reproductive Rights and
Contribute To, Cause or Constitute Violence against Women
, Report of the
Special Rapporteur on Violence against Women, Its Causes and Consequences, UN
Doc E/CN.4/1999/68/Add.4 (1999), para 51. At http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/4cad275a8b5509ed8025673800503f9d?Opendocument (viewed 8 August 2012).
[23] See
Committee on the Rights of the Child, Concluding Observations: Australia,
UN Doc CRC/C/15/Add.268 (20 October 2005), paras 45–46. At http://www.unhcr.org/refworld/publisher,CRC,,AUS,45377eac0,0.html (viewed 8 August 2012); Committee on the Elimination of Discrimination against
Women, Concluding Observations: Australia, UN Doc CEDAW/C/AUL/CO/7
(2010), para 43. At http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/485/48/PDF/N1048548.pdf?OpenElement (viewed 8 August 2012), as cited in Australian Human Rights Commission, Report of the UN Special Rapporteur on Violence against Women Australian
Study Tour
, April 2012 (forthcoming
2012).
[24] G Innes, Disability
Discrimination Commissioner, Correspondence to Hon R McClelland, Australian
Government Attorney-General, 13 July 2011.
[25] Safe Work Australia, Key
Workers Compensation Information Australia
(2011), p 4. At http://www.safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/Publications/Documents/579/WC_Information
per cent20booklet per cent202011_web.pdf
(viewed 8 August
2012).
[26] Australian Taxation
Office, Super contributions – too much super can mean extra tax, 3
July 2012, http://www.ato.gov.au/individuals/PrintFriendly.aspx?ms=individuals&doc=/content/00106372.htm (viewed 8 August 2012); Super Guide, Super contributions beyond the age of
75
, http://www.superguide.com.au/superannuation-basics/super-contributions-beyond-the-age-of-75 (viewed 8 August 2012).
[27] The
Commission can receive complaints alleging discrimination on the basis of
‘sexual preference’ in employment or occupation: Australian Human
Rights Commission Act 1986
(Cth), s 3 and Australian Human Rights
Commission Regulations 1989
(Cth), s 4. The Commission can also receive
complaints alleging that an act or practice done by or on behalf of the
Commonwealth is inconsistent with, or contrary to any human right: Australian
Human Rights Commission Act 1986
(Cth), ss 11(1)(f), 20(1). However, in both
cases, remedies are not enforceable. ‘Human right’ is defined in Australian Human Rights Commission Act 1986 (Cth), s
3.
[28] Australian Government, Consolidation of Commonwealth Anti-Discrimination Laws Discussion Paper (2011), p 6. At http://www.ag.gov.au/ (viewed 8 August 2012).
[29] This
is discussed further in Australian Human Rights Commission, Submission to the
Attorney-General’s Department Consolidation of Commonwealth Discrimination
Law
(6 December 2011), paras 76−88. At http://www.humanrights.gov.au/legal/submissions/2011/20111206_consolidation.html (viewed 8 August 2012).
[30] ‘Marriage’ is currently defined in federal legislation as the union
of a man and a woman to the exclusion of all others, voluntarily entered into
for life: Marriage Act 1961 (Cth), s
5.
[31] For further discussion
see Australian Human Rights Commission, Submission to the Senate Legal and
Constitutional Affairs Legislation Committee Inquiry into the Marriage Equality
Amendment Bill 2010
(29 March 2012). At http://www.humanrights.gov.au/legal/submissions/2012/20120329_marriageEquality.html (viewed 8 August 2012).
[32] See
Australian Human Rights Commission, Sex Files: The legal recognition of sex
in documents and government records
(2009), section 8. At http://www.humanrights.gov.au/genderdiversity/index.html (viewed 8 August 2012).
[33]Births, Deaths and Marriages Registration Act 1995 (NSW); Birth Deaths
and Marriages Registration Act 1997
(ACT); Births, Deaths and Marriages
Registration Act 1996
(Vic); Sexual Reassignment Act 1988 (SA); Births, Deaths and Marriages Registration Act (NT); Births Deaths and
Marriages Registration Act 1999
(Tas); Gender Reassignment Act 2000 (WA); Births Deaths and Marriages Registration Act 2003 (Qld).
[34]Sex Discrimination
Act 1984
(Cth), s 40(5). This amendment was made in contravention of
recommendation 1 from the Commission’s Sex Files Report: Australian
Human Rights Commission, Sex Files: The legal recognition of sex in documents
and government records
(2009). At http://www.humanrights.gov.au/genderdiversity/index.html (viewed 8 August 2012). For further discussion see: Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional Affairs
Committee Inquiry into the Sex and Age Discrimination Legislation Amendment Bill
2010
(3 November 2010), section 5.2. At http://www.humanrights.gov.au/legal/submissions/2010/20101103_inquiry_SDA.html (viewed 2 August 2012).
[35] Australian Government, Australia’s Human Rights Framework (April
2010), p 7. At http://www.ag.gov.au/Humanrightsandantidiscrimination/Australiashumanrightsframework/ (viewed 8 August 2012).
[36] See
for example, Committee on the Rights of the Child, Consideration of reports
submitted by States parties under article 44 of the Convention: Concluding
observations: Australia,
UN Doc CRC/C/AUS/CO/4 (2012). At http://www2.ohchr.org/english/bodies/crc/crcs60.htm (viewed 8 August 2012); Human Rights Council, Report of the Working Group on
the Universal Periodic Review: Australia
, UN Doc A/HRC/17/10 (2011).
At http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx (viewed 8 August 2012); Committee on the Elimination of Racial Discrimination, Concluding observations of the Committee on the Elimination of Racial
Discrimination
, UN Doc CERD/C/AUS/CO/15-17, (2010). At http://www2.ohchr.org/english/bodies/cerd/cerds77.htm (viewed 8 August 2012).
[37] For
information on the Expert Panel, see Department of Families, Housing, Community
Services and Indigenous Affairs, Constitutional recognition of Indigenous
Australians
, http://www.fahcsia.gov.au/our-responsibilities/indigenous-australians/programs-services/recognition-respect/constitutional-recognition-of-indigenous-australians (viewed 8 August 2012).
[38] National Congress of Australia’s First Peoples, Congress Facts, http://nationalcongress.com.au/about-us/ (viewed 8 August 2012).
[39] Minister for Families, Community Services and Indigenous Affairs,
‘National emergency response to protect Aboriginal children in the
NT’ (Media Release, 21 June 2007). At http://www.formerministers.fahcsia.gov.au/3581/emergency_21june07/ (viewed 8 August 2012).
[40]Northern Territory National Emergency Response Act 2007 (Cth), s 6.
[41] The Stonger Futures Bills
consist of the Stronger Futures in the Northern Territory Bill 2011 (Cth), the
Stronger Futures in the Northern Territory (Consequential and Transitional
Provisions) Bill 2011 (Cth), and the Social Security Legislation Amendment Bill
2011 (Cth).
[42]Stronger
Futures in the Northern Territory (Consequential and Transitional Provisions)
Act 2012
(Cth), Schedule
1.
[43] The Minister has
discretion to approve community alcohol management plans: Stronger Futures in
the Northern Territory Act 2012
(Cth), Part 2.
[44]Stronger Futures in the
Northern Territory Act 2012
(Cth), s 8, inserting s 75B(1) into the Liquor Act 2012 (NT).
[45]Social Security Legislation Amendment Act 2012 (Cth), Schedule
2.
[46] Australian Human Rights
Commission, Submission to the Senate Community Affairs Legislation Committee
Inquiry into the Stronger Futures in the Northern Territory Bill 2011 and two
related Bills (6 February 2012). At http://www.humanrights.gov.au/legal/submissions/2012/20120206_stronger.pdf (viewed 8 August 2012).
[47]Stronger Futures in the Northern Territory Act 2012 (Cth), ss 34,
35.
[48]Stronger Futures in
the Northern Territory Act 2012
(Cth), Part
4.
[49]Stronger Futures in
the Northern Territory (Consequential and Transitional Provisions) Act 2012
(Cth), Schedule 3.
[50]Stronger Futures in the Northern Territory (Consequential and Transitional
Provisions) Act 2012
(Cth), Schedule
4.
[51]Social Security
Legislation Amendment Act 2012
(Cth), Schedule 1, s 6.
[52] Australian Human Rights
Commission, Submission to the Senate Community Affairs Legislation Committee
Inquiry into the Stronger Futures in the Northern Territory Bill 2011 and two
related Bills
(6 February 2012). At http://www.humanrights.gov.au/legal/submissions/2012/20120206_stronger.pdf (viewed 8 August 2012).
[53] Australian Bureau of Statistics, 4517.0 – Prisoners in Australia,
2011
(December 2011). At http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4517.0Explanatory%20Notes12011?OpenDocument (viewed 8 August 2012).
[54] Steering Committee for the Review of Government Service Provision, Overcoming
Indigenous Disadvantage: Key Indicators 2009,
Productivity Commission
(2009). At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2009 (viewed 8 August 2012).
[55] National Institute of Justice, When Neighbours Go to Jail: Impact on
Attitudes About Formal and Informal Social Control,
US Department of Justice
(1999). At http://www.ncjrs.gov/pdffiles1/fs000243.pdf (viewed 8 August 2012).
[56] The
Australian Human Rights Commission made a submission in the Coroners Court of
Queensland Inquest into the death of Mulrunji on Palm Island on 19 November
2004: see http://www.humanrights.gov.au/legal/submissions_court/intervention/mulrunji.html (viewed 8 August 2012). The Australian Human Rights Commission made a submission
in the Coroners Court of Western Australia Inquest into the death of Mr Ward:
see http://www.humanrights.gov.au/legal/submissions_court/intervention/2009/Ward_final20090528.html (viewed 8 August 2012).
[57]Young Offender Act 1994 (WA), ss
124–130.
[58] Attorney-General, ‘Vic Govt welcomes Sentencing Advisory Council report on
gross violence offences’ (Media Release, 10 November 2011). At http://www.premier.vic.gov.au/media-centre/media-releases/2444-vic-govt-welcomes-sentencing-advisory-council-report-on-gross-violence-offences-.html (viewed 8 August 2012).
[59] M
Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2011, Australian Human Rights Commission (2011). At http://www.humanrights.gov.au/social_justice/nt_report/ntreport11/index.html (viewed 8 August 2012).
[60] T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2009, Australian Human Rights Commission (2009) pp
77–104. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport09/index.html (viewed 8 August 2012).
[61] Australian Human Rights Commission, Submission to the Joint Select Committee
on Australia’s Immigration Detention Network
(August 2011). At http://www.humanrights.gov.au/legal/submissions/2011/201108_immigration.html (viewed 8 August 2012).
[62] Australian Human Rights
Commission, Community arrangements for asylum seekers, refugees and stateless
persons: Observations from visits conducted from December 2011 to May 2012
(July 2012), p 14. At http://www.humanrights.gov.au/human_rights/immigration/2012community-arrangements/index.html (viewed 8 August 2012).
[63] Australian Human Rights Commission, Community arrangements for asylum
seekers, refugees and stateless persons: Observations from visits conducted from
December 2011 to May 2012
(July 2012), pp 7–12. At http://www.humanrights.gov.au/human_rights/immigration/2012community-arrangements/index.html (viewed 8 August 2012).
[64] See,
for example, the Commission’s national inquiry reports: Australian Human
Rights Commission, A last resort? National Inquiry into Children in
Immigration Detention
(2004). At http://humanrights.gov.au/human_rights/children_detention_report/report/PDF/alr_complete.pdf (viewed 8 August 2012); Human Rights and Equal Opportunity Commission, Those
who’ve come across the seas: Detention of unauthorised arrivals
(1998). At http://humanrights.gov.au/human_rights/immigration/seas.html (viewed 8 August 2012); see also Commission reports of inspections of
immigration detention facilities: Australian Human Rights Commission, Immigration Detention and Human Rights (2011). At http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9_3 (viewed 8 August 2012); see further Commission reports of complaints about
alleged human rights breaches in immigration detention at Australian Human
Rights Commission, Reports to the Minister under the Australian Human Rights
Commission
Act (2010). At http://humanrights.gov.au/legal/humanrightsreports/index.html (viewed 8 July 2011). Further information about the
Commission’s activities relating to immigration detention is available at
Australian Human Rights Commission, Immigration detention and human
rights
, http://humanrights.gov.au/human_rights/immigration/detention_rights.html#9 (viewed 8 August 2012).
[65] Minister for Immigration and Citizenship and Prime Minister, ‘Government
to move children and vulnerable families into community-based
accommodation’ (Media Release, 18 October 2010). At http://www.minister.immi.gov.au/media/cb/2010/cb155484.htm (viewed 6 June 2012).
[66] Minister for Immigration and Citizenship, ‘Bridging visas to be issued for
boat arrivals’ (Media Release, 25 November 2011). At http://www.minister.immi.gov.au/media/cb/2011/cb180599.htm (viewed 8 August 2012). For more information about Bridging Visas, including the
numbers granted to asylum seekers to date, see Department of Immigration and
Citizenship, Onshore Processing Statistics, http://www.immi.gov.au/media/statistics/onshore-processing.htm (viewed 8 August 2012).
[67] As
at 30 June 2012 there were 591 children in immigration detention: Department of
Immigration and Citizenship, Immigration Detention Statistics Summary, 30
June 2012. At http://www.immi.gov.au/managing-australias-borders/detention/facilities/statistics/ (viewed 8 August 2012).
[68] The Commission’s reports on inspections of immigration detention
facilities are available at Australian Human Rights Commission, Immigration
detention, asylum seekers and refugees
, http://humanrights.gov.au/human_rights/immigration/index.html (viewed 8 August 2012).
[69] Australian Human Rights Commission, Community arrangements for asylum
seekers, refugees and stateless persons: Observations from visits conducted from
December 2011 to May 2012
(July 2012), section 6.2. At http://www.humanrights.gov.au/human_rights/immigration/2012community-arrangements/index.html (viewed 8 August 2012).
[70]Al-Kateb v Godwin (2004) 219 CLR 562.
[71] Commonwealth, Official
Committee Hansard: Senate Legal and Constitutional Affairs Legislation Committee
– Estimates
(21 May 2012), pp 97–98 (John Moorhouse, Deputy
Secretary, Immigration Detention Services Group, Department of Immigration and
Citizenship). At http://parlinfo.aph.gov.au/ (viewed 8 August 2012), as cited in Australian Human Rights Commission, Community arrangements for asylum seekers, refugees and stateless persons:
Observations from visits conducted from December 2011 to May 2012
(July
2012), p 32. At http://www.humanrights.gov.au/human_rights/immigration/2012community-arrangements/index.html (viewed 8 August 2012).
[72] Australia is prohibited under article 33(1) of the Convention Relating to the
Status of Refugees
, 1951, from expelling or returning refugees to
territories where their lives or freedom would be threatened on the basis of
their race, religion, nationality, membership of a particular social group or
political opinion. Australia has further and broader non-refoulement obligations under articles 6 and 7 of the International Covenant on Civil and
Political Rights
, articles 6 and 37 of the Convention on the Rights of
the Child
and article 3 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
, which prevent the
removal of anyone from Australia to a country where they are in danger of death,
torture or other mistreatment including arbitrary
detention.
[73] Article 31 of the Convention Relating to the Status of Refugees prohibits state parties
from penalising asylum seekers on account of their unlawful entry. Further,
Australia is bound to respect the right of everyone to equality and
non-discrimination under article 26 of the International Covenant on Civil
and Political Rights
, and article 22 of the Convention on the Rights of
the Child
affirms the right of child asylum seekers and refugees to receive
appropriate protection and assistance. The principle of non-discrimination in
article 2 of the Convention on the Rights of the Child means that all
children seeking asylum are entitled to the same level of assistance and
protection of their rights, regardless of how or where they arrive.
[74] Articles 17(1) and 23(1) of
the International Covenant on Civil and Political Rights and article 8(1)
of the Convention on the Rights of the Child provide that everyone has
the right to freedom from interference with their family. Article 10(1) of the Convention on the Rights of the Child specifically states that
‘applications by a child or his or her parents to enter or leave a State
Party for the purpose of family reunification shall be dealt with ... in a
positive, humane and expeditious
manner’.
[75] Australian
Human Rights Commission, An age of uncertainty: Inquiry into the treatment of
individuals suspected of people smuggling offences who say that they are
children
(2012). At http://www.humanrights.gov.au/ageassessment/report/index.html (viewed 8 August 2012).
[76] Australian Human Rights Commission, An age of uncertainty: Inquiry into the
treatment of individuals suspected of people smuggling offences who say that
they are children
(2012), Chapter 7, section 2.2(a). At http://www.humanrights.gov.au/ageassessment/report/chapter7.html#Heading3180 (viewed 8 August 2012).
[77]Migration Act 1958 (Cth), s 236B.
[78] See Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional Affairs
Committee Inquiry into the Migration Amendment (Removal of Mandatory Minimum
Penalties) Bill 2012
(27 February 2012). At http://www.humanrights.gov.au/legal/submissions/2012/20120227_migration_amendment.html (viewed 8 August 2012).
[79] Australian Human Rights Commission, An age of uncertainty: Inquiry into the
treatment of individuals suspected of people smuggling offences who say that
they are children
(2012). At http://www.humanrights.gov.au/ageassessment/report/summary.html#Heading135 (viewed 8 August 2012).
[80] Australian Law Reform Commission and the Australian Human Rights Commission, Seen and heard: Priority for children in the legal process, ALRC Report
No 84 (1997), paras 18.21–18.22. At http://www.alrc.gov.au/publications/report-84 (viewed 8 August 2012); JJ Kennedy, Commission of Review into Corrective
Services in Queensland – Final Report
(1998), p 126. At http://www.correctiveservices.qld.gov.au/Publications/Corporate_Publications/ (viewed 8 August 2012); Anti-Discrimination Commission Queensland, Women in
Prison: A report by the Anti-Discrimination Commission Queensland
(2006), p
117. At http://www.adcq.qld.gov.au/pubs/WIP_report.pdf (viewed 8 August 2012).
[81] Section 18(2) of the Queensland Corrective Services Act 2006 (Qld)
provides that a prisoner who is under 18 years of age must be kept apart from
other prisoners who are 18 years or older unless it is in the prisoners best
interests not to be kept
apart.
[82] Joint Standing
Committee on Treaties, Parliament of Australia, Report 125 (21 June
2012). At http://www.aph.gov.au/ (viewed 8 August 2012).
[83] The
reports of these findings can be found at Australian Human Rights Commission, Reports to the Minister under the AHRC Act, http://www.humanrights.gov.au/legal/humanrightsreports/index.html (viewed 8 August 2012). See for example, Australian Human Rights Commission, Report of an inquiry into a compliant by Mr AV of a breach of his human
rights while in immigration detention
, HREOC Report No. 35 (April 2006). At http://www.humanrights.gov.au/legal/humanrightsreports/hrc_report_35.html (viewed 8 August 2012).
[84] Australian Human Rights Commission, Comments on Australia’s
compliance with the Convention Against
Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment
(February 2007). At http://humanrights.gov.au/ (viewed 8 August 2012). See also Australian Human Rights Commission, Submission to the Joint Standing Committee on Treaties’ Inquiry into
the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment
. At http://www.humanrights.gov.au/legal/submissions/jscot.html (viewed 8 August 2012).
[85] J
Ngozi Ezeilo, Mission to Australia, Report of the Special Rapporteur on
trafficking in persons, especially women and children to the Human Rights
Council 20th session, UN Doc A/HRC/20/18/Add.1 (2012), para 1. At http://www.ohchr.org/EN/Issues/Trafficking/Pages/Visits.aspx (viewed 8 August 2012).
[86] Such
as passports, birth certificates and citizenship
records.
[87] See Australian
Human Rights Commission, Sex Files: The legal recognition of sex in documents
and government records
(2009), section 9. At http://www.humanrights.gov.au/genderdiversity/index.html (viewed 8 August 2012).
[88] See
Australian Human Rights Commission, Sex Files: The legal recognition of sex
in documents and government records
(2009). At http://www.humanrights.gov.au/genderdiversity/index.html (viewed 8 August 2012).
[89] See
Australian Government, Australia’s National Human Rights Action Plan
Exposure Draft
(2012). At http://www.ag.gov.au/ (viewed 8 August 2012).
[90] See
Australian Human Rights Commission, Sex Files: The legal recognition of sex
in documents and government records
(2009). At http://www.humanrights.gov.au/genderdiversity/index.html (viewed 8 August 2012).
[91] See
Australian Human Rights Commission, Sex Files: The legal recognition of sex
in documents and government records
(2009), section 10. At http://www.humanrights.gov.au/genderdiversity/index.html (viewed 8 August 2012).
[92] Australian Government, Australia’s Universal Periodic Review, http://www.ag.gov.au/Humanrightsandantidiscrimination/Internationalhumanrights/Pages/default.aspx (viewed 8 August 2012).