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National Human Rights Consultation - Appendix 2

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Friday 14 December, 2012

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Appendix
2 – Further specific measures that would better protect human rights in
Australia

word icon Appendix 2: Further specific measures that would better protect human rights in Australia

 

Contents


  1. Throughout the main body of this submission, the Commission recommends five
    major reforms to Australia’s system for the protection and promotion of
    human rights, namely:

    • a Human Rights Act for Australia
    • streamlined and strengthened anti-discrimination legislation
    • constitutional reforms to remove racially discriminatory provisions and
      protect the fundamental principle of equality in Australia
    • better human rights education in Australia
    • a stronger role for the Australian Human Rights Commission
  2. In the Commission’s view, the implementation of any one of these
    reforms will help to better protect and promote human rights, and a combination
    of these reforms will achieve even greater results.
  3. However, neither one nor all of those reforms will solve all of
    Australia’s human rights problems. In some cases, there will need to be
    additional and specific measures to address long-standing human rights issues.
  4. The Commission has over two decades of experience working on the major human
    rights issues in Australia. Drawing on this experience, Part B of this
    submission includes a very brief list of some examples of the ways in which
    human rights are insufficiently promoted and protected in Australia.
  5. This Appendix discusses, in more detail, some of the examples mentioned in
    Part B of the main submission and other examples of systemic human rights
    problems in Australia.
  6. Where possible, this Appendix hypothesises about how these human rights
    problems might be, or might have been, more effectively addressed if the
    Commission’s suggested reforms were a reality. It also notes where
    additional measures would need to be introduced.
  7. The human rights issues covered in this Appendix include those relating
    to:

    • Aboriginal and Torres Strait Islander peoples
    • asylum seekers, refugees and migrants
    • people trafficking
    • counter-terrorism legislation
    • gender equality
    • protection against discrimination on the basis of sexual orientation, sex
      identity and gender identity
    • the National Strategy for implementation of the Convention on the Rights of
      Persons with Disabilities (Disability Convention)
    • the right to vote.
  8. The material in this Appendix is largely a compilation of the
    Commission’s recent comments to the UN Human Rights Committee and the UN
    Committee on Economic, Social and Cultural Rights.It is not a
    comprehensive discussion of all human rights problems in Australia. Rather, it
    provides a summary of some key areas of concern to the Commission and of how
    those concerns might be addressed.

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1 Aboriginal
and Torres Strait Islander peoples

  1. The Aboriginal and Torres Strait Islander Social Justice Commissioner has
    specific functions to report annually on the impact of laws and policies on the
    human rights of Aboriginal and Torres Strait Islander peoples (Indigenous
    peoples). Since 1993, the annual Social Justice Report and Native
    Title Report
    (which began in 1994) have assessed the human rights impact on
    Indigenous peoples across a vast array of areas. These include, inter alia,
    education, health, housing, employment, land rights, heritage protection,
    climate change, criminal justice and violence.
  2. It is envisaged that a national Human Rights Act would provide improved
    protection in order to remedy the breaches of human rights that have been
    identified by the Social Justice Commissioner over time.

1.1 Equality
between Indigenous and non-Indigenous people in Australia

  1. Indigenous peoples continue to experience significant inequalities in the
    realisation of their human rights. Inequality in the right to life is of
    particular concern. Between 1996 and 2001, there was an estimated difference of
    17 years between Indigenous and non-Indigenous life expectancy in
    Australia.[1]
  2. Underlying this inequality in the right to life is a range of social and
    economic inequalities including lower incomes, higher rates of unemployment,
    poorer educational outcomes and lower rates of home ownership. For example, in
    2001 the unemployment rate for Indigenous peoples was 20% – three times
    higher than the rate for non-Indigenous
    Australians.[2]
  3. Many of these existing inequalities can be attributed to the impact of
    previous laws and policies that have discriminated against Indigenous peoples
    and which have not provided them with equal life chances. This has resulted in
    systemic barriers to full participation in Australian society.
  4. The Commission notes that a national Human Rights Act would have a critical
    role to play in identifying the systemic impact of new laws and policies on
    Indigenous peoples. As outlined in the body of this submission, the Commission
    also believes that a Human Rights Act should be accompanied by amendments to
    Australia’s Constitution to guarantee racial equality and prohibit
    discrimination into the future.
  5. The Commission notes that at the Indigenous Health Equality Summit in 2008,
    the Australian Government made accountable and measureable commitments to
    achieving equality in health status and life expectancy between Indigenous and
    non-Indigenous Australians by 2030. The Council of Australian Governments has
    similarly committed to closing the life expectancy gap within a generation,
    halving the mortality gap for children under five within a decade and halving
    the gap in reading, writing and numeracy within a decade.
  6. Having committed itself to applying this human rights based framework to
    address Indigenous health, the Australian Government should take steps to
    equally apply a human rights based framework to all aspects of Indigenous
    affairs policy, programs and service delivery. This should include the Northern
    Territory Emergency Response.
  7. The Commission believes that a vital step in setting up a human rights
    framework is to introduce an Australian Human Rights Act that requires public
    authorities delivering public services and programs to act compatibly with human
    rights. This will significantly impact on policy-making in relation to
    Indigenous peoples and has the potential to achieve better outcomes from service
    delivery to Indigenous peoples.

1.2 United
Nations Declaration on the Rights of Indigenous Peoples and self-determination

  1. The Commission welcomes the Australian Government’s statement of
    support for the United Nations Declaration on the Rights of Indigenous
    Peoples
    (Declaration on the Rights of Indigenous
    Peoples).[3] The statement notes that:

    The Declaration recognises the legitimate entitlement of Indigenous
    people to all human rights – based on principles of equality, partnership,
    good faith and mutual benefit...

    Australia’s existing obligations under international human rights
    treaties are mirrored in the Declaration's fundamental principles.

    The Declaration needs to be considered in its totality - each provision as
    part of the whole.

  2. The Declaration on the Rights of Indigenous Peoples provides a framework for
    the protection of the rights of Indigenous peoples to be applied consistently
    with Australia’s existing human rights obligations. It does not create new
    rights – it merely describes how existing rights are relevant and apply to
    Indigenous peoples in accordance with their cultures, identity and way of
    life.
  3. One of the most important human rights for Indigenous Australians is the
    right to self-determination. With the adoption of the Declaration on the Rights
    of Indigenous Peoples, there is now international recognition that the right to
    self-determination applies to Indigenous peoples.
  4. Consistent with this, it is notable that the UN Committee on Economic,
    Social and Cultural Rights has also recognised that Indigenous peoples’
    rights to culture and identity are protected under article 1 (the right to
    self-determination) of the International Covenant on Economic, Social and
    Cultural Rights
    (ICESCR).[4]
  5. In its statement of support for the Declaration on the Rights of Indigenous
    Peoples, the Australian Government also stated that:

    Through the
    Article on self-determination, the Declaration recognises the entitlement of
    Indigenous peoples to have control over their destiny and to be treated
    respectfully.

    Article 46 makes it clear that the Declaration cannot be used to impair
    Australia’s territorial integrity or political unity.

    We want Indigenous peoples to participate fully in Australia’s
    democracy.

    Australia's Indigenous peoples must be able to realise their full potential
    in Australian and international affairs.

    We support Indigenous peoples’ aspiration to develop a level of
    economic independence so they can manage their own affairs and maintain their
    strong culture and identity.

    Australia is a longstanding party to the International Covenant on Economic,
    Social and Cultural Rights and the International Covenant on Civil and Political
    Rights and supports their aims and principles.

  6. The Declaration provides a firm basis for advancing greater recognition and
    protection of Indigenous peoples’ rights to self-determination in
    Australia. The Commission looks forward to working with the government on
    mechanisms for implementing the Declaration within Australia. Strengthening the
    powers of the Commission so that it can take the Declaration into account in
    exercising its human rights functions, as well as providing greater resourcing
    and capacity to the Commission, would contribute to the future operation of the
    Declaration in Australia.
  7. The establishment of a new national Indigenous representative body is
    another government initiative that is critical to both the implementation of the
    Declaration and the advancement of self-determination of Indigenous peoples in
    Australia. By July 2009, the Steering Committee convened by Aboriginal and
    Torres Strait Islander Social Justice Commissioner, Tom Calma, will present a
    preferred model for a new national Indigenous representative body to the
    Australian Government, with recommendations to establish an interim body from
    August 2009.

1.3 The
Racial Discrimination Act and the Northern Territory Emergency
Response

  1. The Commission is concerned that the application of the Racial
    Discrimination Act 1975
    (Cth) (RDA) continues to be suspended in
    relation to the Northern Territory Emergency Response
    (NTER).[5]
  2. The legislation enacted for the NTER declares itself, and any acts done
    pursuant to it, to be a special measure for the purposes of the RDA and exempt
    from the operation of Part II of the Act. It also declares that, where relevant,
    it is exempt from Northern Territory and Queensland anti-discrimination
    legislation.[6]
  3. The Social Justice Report 2007 assessed the NTER’s compliance
    with Australia’s human rights obligations and found that:

    • the government did have an obligation to promote and protect the right of
      Indigenous peoples to be free from family violence and child abuse
    • the NTER legislation is inappropriately classified as a ‘special
      measure’ under the RDA because of the negative impacts of some of the
      measures on Indigenous people and the absence of adequate consultation or
      consent by Indigenous peoples to the measures
    • the NTER legislation contains a number of provisions that are racially
      discriminatory
    • some provisions raised concerns for the compliance with human rights
      obligations (for example, the lack of access to review of social security
      matters and the compulsory acquisition of land without just
      compensation).[7]
  4. In accordance with the International Covenant on Civil and Political Rights
    (ICCPR), the promotion and protection of one right, namely freedom from violence
    and abuse, cannot be undertaken in a discriminatory manner, nor can it be at the
    expense of other rights, including the right to procedural fairness and an
    effective remedy, equality before the law and the right to
    participation.[8]
  5. The Social Justice Report 2007 also found that, despite being
    entitled a ‘national emergency’, the NTER does not meet the
    requirements of a ‘public emergency’ as articulated in article 4 of
    the ICCPR. Further, the extent of the derogation allowed for in article 4 is
    limited. The NTER is not a situation that justifies introducing measures that
    place restrictions on the rights of Indigenous people, such as overriding the
    principles of non-discrimination or safeguards for procedural fairness.
  6. The UN Committee on the Elimination of Racial Discrimination, the UN Human
    Rights Committee and the UN Committee on Economic Social and Cultural Rights
    have all expressed concerns about the
    NTER.[9]
  7. A formal, independent review of the NTER legislation and its operation has
    been conducted by a Review Board. The Review Board’s report, released in
    October 2008, found that the NT Intervention had made some positive changes in
    the Northern Territory, for instance in terms of increased police presence in
    communities, measures to reduce alcohol-related violence, improving quality and
    availability of housing, the health and wellbeing of communities and education.
    The Review Board noted that local communities saw the significant government
    investment under the NT Intervention as ‘an historic opportunity wasted
    because of its failure to galvanise the partnership potential of the Aboriginal
    community’.[10] The inclusion
    of racially discriminatory measures in the NTER was also seen as a significant
    failure that contributed to a lack of faith and trust from Indigenous peoples in
    the Australian Government’s approach.
  8. In May 2009, the government announced its final response to the review of
    the NTER.[11] This included a budget
    commitment of $807.4 million funding over three years, with specific measures in
    the areas of: welfare reform and employment, law and order, education, families,
    child and family health, housing and land reform and coordination. Importantly
    the government confirmed its commitment to introduce legislation in 2009 to make
    the RDA and the Northern Territory anti-discrimination legislation applicable to
    the NTER legislation.
  9. The government also released its ‘Future Directions for the Northern
    Territory Emergency Response Discussion Paper’ on 21 May
    2009,[12] which it intends to use as
    the basis for consultations with 73 prescribed communities on NTER measures.
    These consultations are necessary steps to make sure the NTER does not continue
    to discriminate against Aboriginal people on the basis of their race, and to
    improve any continuing measures, through the participation of Indigenous
    peoples.
  10. While the government’s response addresses several of the
    recommendations outlined in the Social Justice Report 2007 and the NTER
    Review Board’s report, aspects of some of these recommendations have not
    been adopted or are not fully addressed, for instance in areas such as income
    management, CDEP, funding arrangements, governance, and resetting the
    relationship between the government and Aboriginal people.
  11. A Human Rights Act that preserved parliamentary supremacy would not have
    prevented the introduction of the NTER. However, it would have required the
    Australian Government to publicly justify why it believed the only way to
    achieve the legitimate objectives of the NTER was to suspend the RDA. By making
    the government more accountable for deciding to breach human rights, a Human
    Rights Act could help build a culture of respect for human rights.
  12. The only way to guarantee that future Australian Governments will not
    suspend legal protection from racial discrimination to enact discriminatory
    legislation is to amend the Australian Constitution to guarantee racial equality
    and prohibit discrimination. Such a clause would prevent legislative
    protections against racial discrimination from being overridden or suspended by
    the federal Parliament.
  13. Any constitutional change can only occur with the support of the Australian
    people. As detailed in the body of the submission, the Commission supports a
    comprehensive national inquiry into protecting the right to equality in the
    Constitution.

1.4 Indigenous
family support and protection of children and young people

  1. As highlighted by reports such as the Little Children are Sacred Report (NT) and the Breaking the Silence Report (NSW), child abuse, child
    sexual abuse and family violence are critical issues for Indigenous
    communities.[13] An Indigenous child
    is six times more likely to be involved with the statutory child protection
    system than a non-Indigenous child, but four times less likely to have access to
    child care or preschool service that can offer family support to reduce the risk
    of child abuse.[14]
  2. In recognition of Indigenous children’s rights to maintain a
    connection to their family, community and culture, all Australian jurisdictions
    recognise the Aboriginal Child Placement Principle (ACPP). The ACPP states that
    Indigenous children should be placed with Indigenous carers. Children should
    first be placed with the child’s extended family; if that is not available
    they should be placed within the child’s community; failing that they
    should be placed with other Indigenous people. However, the overriding priority
    is still the best interests of the child.
  3. The rate of Indigenous children placed in accordance with the ACPP varies
    across states and territories. It is as high as 84% in NSW but drops to 48% in
    the Northern Territory and only 36% in
    Tasmania.[15] Continued capacity
    building and Indigenous engagement is needed to ensure that the ACPP remains a
    guiding principle in Indigenous child protection.
  4. A new National Framework for Protecting Australia’s Children
    2009-2020
    was endorsed by the Australian Government and all state and
    territory governments in April 2009. The framework provides for an integrated
    response to child protection across all governments. The framework identifies
    several measures for ensuring Indigenous children are supported and safe in
    their families and
    communities.[16]
  5. As part of the development of this framework, the government has looked to
    introduce income management schemes, where welfare incomes are quarantined or
    deducted subject to the enrolment and participation of children in schools.
    These measures raise a number of human rights concerns, including the right to
    social security.
  6. The Commission has recommended against the introduction of such schemes as
    part of the national child protection framework. The Commission has called for
    the government to adopt a human rights-based approach to the framework that
    would uphold the best interests of the child, non-discrimination, and the
    child’s right to life and right to participation.
  7. The Commission’s report, Ending Family Violence and Abuse in
    Aboriginal and Torres Strait Islander Communities
    highlights the need for
    support for Indigenous community initiatives and networks, human rights
    education, government action, and robust accountability and
    monitoring.[17]
  8. Arguably, some forms of income management could be undertaken consistent
    with the right to social security. For example, it is likely that the model
    proposed by the Cape York Institute in its report From hand out to hand
    up
    contains the appropriate procedural guarantees and participatory
    requirements to enable those proposed measures to potentially be characterised
    as a special measure and as consistent with the right to social
    security.[18]
  9. The provisions on income management in the NTER legislation could be amended
    to ensure they are compatible with obligations arising from the right to social
    security.
  10. As noted above, in May 2009, the Australian Government announced
    consultations to review income management arrangements under the NTER to ensure
    that they are consistent with human rights. The outcomes of this process will
    need to ensure the right of individuals and groups to participate in
    decision-making processes that affect their exercise of the right to social
    security.
  11. In the National Framework for Protecting Australia’s Children
    2009-2020
    the government indicates that it will evaluate income management
    trials in WA, NT and Cape York over
    2009-2010.[19]

1.5 Indigenous health
inequality

  1. The Close the Gap Campaign and the closing the gap commitments of all
    Australian governments have the potential to be a turning point in Indigenous
    affairs in Australia.[20] The
    Australian Government has already made substantial investments, backed up by
    emerging health system reforms. The Australian Government has elevated the
    urgency of dealing with the Indigenous health crisis to a national priority.
  2. The groundwork has now been laid to make inroads into this longstanding
    issue. It is, however, a task that will take a generation. And there remains
    significant work to be done. This includes:

    • the creation of a new partnership between Indigenous Australians and their
      representatives and Australian governments to underpin the national effort to
      achieve Indigenous health equality
    • the development of an appropriately funded, long-term national plan of
      action to achieve Indigenous health equality, in part to coordinate the many
      different streams of activity underway that have the potential to contribute to
      that end
    • the establishment of adequate mechanisms to coordinate and monitor the
      multiple service delivery roles of governments that impact on Indigenous health,
      and to monitor progress towards the achievement of Indigenous health
      equality.
  3. The adoption of targeted approaches to Indigenous health equality was
    substantially progressed by the establishment of the Close the Gap Campaign for
    Indigenous Health Equality. This is an historic event, being the first time that
    such authoritative and influential peak bodies and key organisations from
    Australian civil society have worked together in partnership in such a sustained
    manner towards a single goal – Indigenous health equality.
  4. It should be noted that recent revisions of the Indigenous life expectancy
    gap from 17 years to around 10 years underscore the importance of improved data
    collection.[21] A firm data
    foundation is essential to plan and implement for Indigenous health equality by
    2030.
  5. A key element of the Close the Gap Campaign has been the development of
    National Indigenous Health Equality Targets over a period of six months by three
    working groups. A notable Indigenous person with extensive health experience led
    each working group.
  6. The targets represent the ‘industry perspective’ on what needs
    to be done and the time frame for doing so in relation to achieving Indigenous
    health. This unprecedented body of work is intended to be the basis of
    negotiations with Australian governments as to the main elements and time frames
    of a national plan to achieve Indigenous health equality by 2030.
  7. The integration of the Close the Gap targets into policy settings remains an
    ongoing concern of the Campaign partners. The targets in the Statement of
    Intent, for example, are still not reflected in the government’s Overcoming Indigenous Disadvantage Framework.
  8. The Campaign partners have a further concern in relation to partnership and
    the achievement of Indigenous health equality. While the Campaign partners have
    been encouraged by the commitment to partnerships including by the Prime
    Minister in the apology to Australia’s Indigenous
    peoples[22] there are few signs that the Australian Government is otherwise embracing a
    partnership approach. In part, this could be because the Australian Government
    is waiting for the establishment of the national Indigenous representative body
    as a vehicle for partnership.
  9. Particularly in relation to a national primary health care strategy,
    Aboriginal representative bodies must be active participants in development and
    implementation. Aboriginal community controlled health services must be involved
    in health planning at the local and regional level with the National Aboriginal
    Community Controlled Health Organisation, and State/Territory NACCHO Affiliates
    at national and jurisdictional levels respectively. Where relevant, additional
    partners would include the Indigenous health professional bodies and a national
    Indigenous representative body when it is established.
  10. The recent progress made in Indigenous health policy is an excellent example
    of the way in which policy can be developed within a human rights framework.
    This kind of approach would be more likely if Australia had a Human Rights Act.

1.6 Indigenous
housing and homelessness

  1. Indigenous people are likely to experience homelessness because of their
    high levels of social and economic disadvantage. According to the 2006 census,
    there were 4116 Indigenous people who were homeless on census
    night.[23] In every state and
    territory, Indigenous clients of Supported Accommodation Assistance Program
    services were substantially over-represented relative to the proportion of
    Indigenous people in those
    jurisdictions.[24]
  2. In 2006, the UN Special Rapporteur on Adequate Housing identified an
    Indigenous housing crisis in Australia. He argued that the following factors
    have led to a ‘severe housing crisis’ which is likely to worsen in
    coming years as a result of the rapid rate of population growth in Indigenous
    communities:

    • lack of affordable and culturally appropriate housing
    • lack of appropriate support services
    • significant levels of poverty
    • underlying
      discrimination.[25]
  3. Further factors that contribute to Indigenous homelessness include:
    • many Indigenous people enter poverty and homelessness as a result of poor
      educational and employment opportunities
    • Indigenous people are vulnerable to homelessness when they are forced to
      move in order to access employment and income support
    • the removal or temporary suspension of welfare benefits which can increase
      the chances of an Indigenous person becoming homeless
    • inadequate housing which can severely impact on the health of residents
    • a lack of culturally appropriate
      housing.[26]
  4. The UN Committee on Economic Social and Cultural Rights has noted its
    concern that the incidence of homelessness has increased in Australia over the
    last decade, mainly affecting Indigenous peoples, and has recommended the
    government implement the recommendations of the UN Special Rapporteur on the
    Right to Adequate Housing contained in the report of his mission to
    Australia.[27]
  5. In addition to wider housing reforms to address homelessness and housing
    affordability, including for Indigenous peoples in urban and regional
    areas,[28] the Council of Australian
    Governments’ National Partnership Agreement on Remote Indigenous
    Housing
    took effect on 1 January 2009. The Agreement provides for $1.94
    billion over 10 years to improve the living standards of Indigenous peoples in
    remote areas by reducing overcrowding, homelessness, poor housing conditions and
    severe housing shortages. Under this Agreement the Australian Government will
    provide funding for remote Indigenous housing. The state and Northern Territory
    governments will be responsible for delivering the reform package, including the
    provision of housing and associated tenancy management
    reforms.[29]
  6. This is complemented by the Indigenous Remote Service Delivery National
    Partnership which will provide $291.2 million over six years to improve
    access to services by Indigenous peoples in 26 identified remote Indigenous
    locations.[30]
  7. However, the government has deemed provision of housing and other services
    under the National Partnership Agreement on Remote Indigenous Housing to
    be conditional upon Indigenous land owners providing 40 year leases over their
    lands to the government, despite communities’ reluctance to provide such
    leases; and transferring tenancy agreements from Indigenous community housing
    providers to public housing providers.
  8. Indigenous community housing providers such as Tangentyere Council have
    argued for a community housing system accredited against the National Community
    Housing Standards in preference to public housing management for the Alice town
    camps.[31] In the absence of an
    agreement being reached, the government has indicated it will use the NTER
    legislation to compulsorily acquire the lands against the communities’
    wishes.
  9. Such conditions on access to the right to adequate housing undermine the
    rights to land and culture and the right of Indigenous peoples to participate in
    decisions about their land and development as recognised in the Declaration on
    the Rights of Indigenous
    Peoples.[32]
  10. There are also concerns that insufficient government funds and resources may
    be allocated for meeting the need for housing and services in remote Indigenous
    communities other than the 26 identified communities. This concern arises both
    under the federal policy and the Northern Territory Government’s Homelands / Outstations policy – Working Future – Fresh ideas /
    real results
    .
  11. Under its Homelands / Outstations policy the NT Government has indicated it
    will focus on the establishment of 20 towns across the Territory, with
    government services to outstations/homelands in most cases involving a form of
    remote delivery, based from the closest or most accessible hub town. The NT
    Government has indicated it will not provide funding to construct housing on
    outstations in the NT.
  12. The Laynhapuy Homelands Association has expressed concerns that ‘the
    decision not to fund new housing for our homelands condemns Yolngu to further
    overcrowding, declining living conditions and ultimately the extinguishment of
    our traditional culture’.[33] The concern is that people will be forced to move from their traditional lands
    into the 20 hub towns in order to access basic rights to housing, health and
    education.[34]

1.7 Indigenous
language, culture and arts

  1. The National Indigenous Languages Survey Report shows that of the
    original estimated 250 Indigenous languages, only about 145 exist today and the
    majority of these are critically
    endangered.[35]
  2. A major finding of the report is that Australia’s Aboriginal and
    Torres Strait Islander languages are critically endangered and urgent action is
    required to preserve them for the future. The vast majority of the 145
    Indigenous languages that are still spoken or partially spoken are severely
    endangered. Less than 20 languages are strong and not currently on the
    endangered list.[36] This situation
    was noted with concern by the UN Committee on Economic, Social and Cultural
    Rights.[37]
  3. Indigenous languages and cultures are closely intertwined. Safeguarding
    languages preserves Indigenous culture and identity.
  4. Currently, the promotion and protection of Indigenous languages and cultures
    is not sufficiently prioritised by the Australian Government. If languages are
    to survive, genuine commitment and policies are required for language
    maintenance and language revitalisation programs at all levels of
    Australia’s educational institutions. This means making schools culturally
    familiar and appropriate for Indigenous children and embedding Indigenous
    perspectives across the curriculum.
  5. Additionally, the Commission is concerned that the protection of Indigenous
    cultural and intellectual property by the mainstream legal system is inadequate.
    Instruments such as the Copyright Act 1986 (Cth) that provide legal
    protections for the life of the artist plus fifty years are not equipped to
    protect knowledge systems and artistic designs that are thousands of years old.
    Nor are they capable of recognising and protecting collective ownership of
    artistic content and products, which is common in Indigenous
    cultures.[38]
  6. A Human Rights Act could provide protection for the cultural rights
    recognised in article 27 of the ICCPR and article 15 of ICESCR. This would mean
    that that the government would need to consider the cultural rights of
    Indigenous peoples when developing new laws and policy. This would help redress
    the historical and continuing failure to recognise and protect Indigenous
    cultural rights.

1.8 Indigenous
education

  1. While some small improvements have been made in the education outcomes of
    Indigenous students in Australian schools, the disparity of outcomes for remote
    students compared with their urban counterparts remains unacceptable. The
    provision of quality education services in remote Australia continues to be of
    concern.
  2. The vast majority of the Australian continent is defined as remote or very
    remote. In 2006 there were 1,187 discrete Indigenous communities in Australia
    with 1,008 of these communities in very remote areas. Of the very remote
    communities, 767 had population sizes of less than 50 persons. In 2006 there
    were 69,253 Indigenous people living in very remote
    Australia.[39]
  3. Remoteness has obvious implications for school education, including limiting
    access to early childhood services, primary and secondary schools as well as
    other resources such as libraries and information technology. In remote areas,
    road access may be limited during times of the year and prevent access during
    the wet season for months on end. If internet access is available in remote
    Australia, it is usually via satellite, offering a dial-up service with slow
    internet speeds.
  4. Indigenous children in remote areas have, on average, much lower rates of
    school attendance, achievement and retention than Indigenous children in urban
    areas and other Australian
    children.[40] In remote areas of the
    NT, only 3 to 4% of Indigenous students achieved the national reading benchmark
    in 1999.[41]
  5. In May 2009, the UN Committee on Economic, Social and Cultural Rights
    expressed concerns about the delivery of education to Indigenous peoples. It
    stated:

    The Committee notes with concern the persistence in the
    State party of disparities in access to the educational system for indigenous
    peoples, including those living in remote areas, compared with the rest of the
    population, as well as the deficient quality of education provided to persons
    living in remote areas, in particular indigenous peoples. It regrets that access
    to pre-school education is not equally guaranteed throughout the State party.
    (art. 2.2 and 13)[42]

  6. The Commission is of the view that a Human Rights Act would provide a
    benchmark against which the right to education could be regularly assessed and
    would ensure more consistent and improved accountability mechanisms for
    governments. It would provide a more systemic approach to protecting the
    economic, social and cultural rights of the most vulnerable sectors of the
    community.
  7. The Commission is also concerned about the threat to bilingual education for
    Aboriginal students. Of the 9,581 schools that exist in Australia today, nine
    schools are bilingual schools, instructing students in their first Indigenous
    language.
  8. In 2009 the NT Government implemented a policy-making it mandatory for
    schools to begin each school day with four hours of English literacy. The impact
    of this policy will be felt most markedly by the bilingual schools. In fact, the
    four hours of English is likely to destroy the bilingual education model.
    Dismantling bilingual education potentially endangers some of the remaining
    Indigenous languages.
  9. Bilingual education is an example of Indigenous controlled education.
    Students are instructed in their first language, learning educational concepts
    in their own language and learning their first literacies in their
    mother-tongue. English language and literacies are gradually introduced in the
    primary years.
  10. Bilingual education is considered to be one way to keep Indigenous language
    and culture alive. Bilingual programs are supported by local Indigenous
    community members with the aim of protecting and promoting Indigenous languages
    and culture through school education.
  11. 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.[43]
  12. The Commission supports the protection and promotion of bilingual education.
    A human rights approach to policy development could require consideration of
    whether education promoted and protected the cultural rights of Indigenous
    children.

1.9 Indigenous
people and the criminal justice system

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

    • Indigenous prisoners represented 24% of the total national prisoner
      population at 30 June 2008[44]
    • Indigenous adults are 13 times more likely to be imprisoned that non-
      Indigenous adults[45]
    • Indigenous young people are 23 times more likely to be in juvenile detention
      that non-Indigenous young people, and make up roughly half of the national
      juvenile detention
      population.[46]
  2. The UN Committee against Torture recently recommended that the Australian
    Government reduce overcrowding in prisons, implement alternatives to detention,
    abolish mandatory sentencing and prevent and investigate deaths in
    custody.[47]
  3. In light of the continued over-representation of Indigenous people,
    particularly women, in the criminal justice system, there is a pressing need for
    the continued implementation of the 339 recommendations contained in the Report
    of the Royal Commission into Aboriginal Deaths in Custody, including any
    outstanding recommendations.
  4. The Commission is also concerned about developments under federal law which
    undermine the role of Aboriginal customary law. These developments prevent a
    court from taking into account ‘any form of customary law or cultural
    practice’ as a mitigating factor in sentencing, or in the context of
    granting bail.[48]
  5. The Commission opposes this for a number of reasons, including the
    importance of recognising the right of minorities to enjoy their own culture,
    which applies to Indigenous peoples and imposes a positive obligation on
    governments to protect their
    cultures.[49]
  6. People who are convicted of criminal offences should be appropriately
    punished. This is best achieved by ensuring that courts can consider the full
    range of factors relevant to the commission of the offence, including a
    person’s culture. The right to enjoy culture cannot be enjoyed at the
    expense of the rights of others and must be consistent with other human rights
    in the ICCPR and the rights of women and children as protected by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[50] and the Convention on the Rights of the Child (CRC)[51].
  7. The Commission notes that although the NT Parliament made changes to the
    mandatory sentencing laws for property offences effective from 2001, the Sentencing Act 1995 (NT) still contains forms of mandatory sentencing in
    cases involving offences of
    violence.[52]

1.10 Stolen
Generations

  1. The Commission is concerned at the number of outstanding recommendations of
    the Bringing them home report of the National Inquiry into the Separation
    of Aboriginal and Torres Strait Islander Children from Their Families, which
    documents the experiences of the Stolen Generations, who were forcibly removed
    from their families under the guise of
    welfare.[53]
  2. This report recommended that reparation be made in recognition of the
    history of gross violations of human rights, and that the van Boven
    principles
    guide the reparation measures, which should consist of:

    • acknowledgment and apology
    • guarantees against repetition
    • measures of restitution
    • measures of rehabilitation
    • monetary compensation.
  3. The Commission welcomed the Australian Government’s apology to the
    Stolen Generations in February 2008 for:

    laws and policies of
    successive Parliaments and governments that have inflicted profound grief,
    suffering and loss on these our fellow Australians ... especially for the
    removal of Aboriginal and Torres Strait Islander children from their families,
    their communities and their
    country.[54]

  4. However, the other recommendations for reparation remain outstanding,
    including the provision of healing programs for the Stolen Generations and their
    families, and monetary compensation.
  5. The only compensation scheme established specifically for the Stolen
    Generations to date has been in Tasmania. Redress schemes have been established
    in Queensland and WA for children who have experienced abuse in state care, but
    they are not Stolen Generations specific.

1.11 Indigenous
stolen wages

  1. The issue of ‘stolen wages’ has contributed to the entrenched
    and inter-generational disadvantage experienced by Indigenous people in
    Australia, and the consequent discrimination and inequality that contravenes the
    non-discrimination and equality provisions in articles 2 (1) and 26 of the
    ICCPR.
  2. The stolen wages compensation schemes are a critical means for Indigenous
    people to access their right to remedy for the human rights violations they
    experienced, as required under article 2 of the ICCPR, and as the UN Human
    Rights Committee recommended in
    2000.[55]
  3. Stolen wages compensation schemes have been established in Queensland and
    NSW to compensate Indigenous people for the withholding, non-payment and
    underpayment of wages in the control of government. Investigations and
    consultations on the nature and extent of stolen wages issues in WA are also
    underway.
  4. The right to an effective remedy remains unfulfilled in areas where
    compensation schemes have not been established. The Commission notes the need
    for stolen wages compensation schemes to be established in other states and
    territories as appropriate.
  5. The Commission also has significant concerns about the adequacy and fairness
    of the regimes established, particularly by the Queensland Government, to
    address injustices inflicted on Indigenous peoples through the underpayment of
    wages.[56]
  6. In December 2006 the Senate Standing Committee on Legal and Constitutional
    Affairs published Unfinished business: Indigenous stolen wages, which
    recommended the following to strengthen the existing compensation schemes:

    • governments provide unhindered access to archives for the purposes of
      researching the stolen wages issue as a matter of
      urgency
    • funding be made available for education and awareness in Indigenous
      communities about, and preliminary legal research, into stolen wages
      issues.[57]
  7. These recommendations have not been adopted.

1.12 Native Title system reform

  1. The Native Title Act 1993 (Cth) (Native
    Title Act) is the primary mechanism through which Indigenous peoples access
    their cultural rights to land. The Act was intended to advance and protect
    Indigenous people by recognising their traditional rights and interests in the
    land.[58]
  2. However, in practice, there are a number of limitations of the native title
    system, including the following:

    • The courts have construed the Native Title Act as requiring that Indigenous
      people claiming native title prove traditional laws and customs at sovereignty
      and their continued observance generation by generation until
      today.[59] One of the cruel
      consequences is that the greater the impact of colonisation on Indigenous
      peoples (for example, if they were forcibly removed from their land), the less
      likely that they will be able to prove native title under Australian law.
    • Indigenous peoples bear the burden of proof and strict rules of evidence
      generally apply. The result is that Indigenous peoples whose culture is based on
      the oral transmission of knowledge must prove every aspect, including the
      content of the law, and custom and genealogy, back to the date of sovereignty
      (up to almost 200 years) in a legal system based on written evidence.
    • Only the traditional laws and customs that existed at the time of
      sovereignty and which are still observed and practiced today will be recognised.
      There is little room for revival of cultural traditions or adaptation of the
      traditions to
      today.[60] Similarly, the rights recognised are severely limited in terms of how Indigenous
      peoples can utilise any resources associated with that land for economic or
      social benefit.
  3. Recent reforms to the native title system do not reach far enough to
    overcome the limitations of the system or enable the full realisation of rights
    to land and culture.[61]
  4. Further, the native title system is in a state of
    gridlock.[62] Between 1 January 1994
    (when the Native Title Act came into effect) and 31 December 2008, 117
    determinations of native title were made, while over 500 claims are still
    waiting to be determined. Litigated determinations take an average of nearly
    seven years. On current estimates it will take another 30 years to finalise the
    remaining claims.[63]
  5. The system is in a state of gridlock for a number of reasons. It is in part
    due to the technical and aggressive attitude of government parties in an
    adversarial setting. Another relevant factor is the inadequate funding by
    government for Indigenous peoples pursuing their
    rights.[64] Although some amendments
    to the system were made in 2007, and some are currently being considered by
    government, these measures do not adequately improve the process.
  6. The Commission is concerned that while the system continues to progress so
    slowly, Indigenous peoples’ rights are being denied and Indigenous elders
    are dying.

1.13 Land rights
under the Northern Territory Emergency Response

  1. The NTER legislation has allowed the Australian Government to acquire a wide
    range of interests in land, including:

    • compulsory acquisition of five-year leases over certain lands
    • control of leases for town camps in Darwin, Katherine, Tennant Creek and
      Alice Springs including the power to forfeit the lease and resume the land
    • power to acquire all rights, titles and interests in the land subject to a
      town camp lease
    • rights in construction areas, and buildings and infrastructure constructed
      on Aboriginal land.
  2. The NTER legislation significantly reduces the protection of Aboriginal
    peoples’ rights and interests in their traditional lands as provided by
    both the Aboriginal Land Rights (Northern Territory) Act 1976 (NT) and
    the Native Title Act. However, this legislation also impacts on the ability of
    those Aboriginal people affected to leverage economic, social and cultural
    development through the future acts regime.
  3. Any native title rights and interests, to the extent that they may occur
    over the area covered by a five year lease, are not expressly preserved by the
    legislation. While the legislation states that the non-extinguishment principle
    applies to the granting of a five year lease and other specified acts as
    determined by the NTER legislation, the legislation does ensure the suspension
    of the future acts regime.[65]
  4. Under a Human Rights Act, proposed legislation that impacts on the land
    rights of Indigenous peoples would need to be accompanied by a statement which
    explains what impact the legislation will have on human rights. This process of
    justification would mean that the implications for human rights would be firmly
    before the Parliament when making decisions about amendments such as those
    described above.

1.14 Indigenous
participation in environmental management

  1. Indigenous peoples have had limited influence and participation in policies
    which affect their rights to land and waters, such as policies on environmental
    management, cultural heritage and climate change. For example, while the
    Australian Government has been developing a policy for climate change, and water
    use and access, there has been minimal consultation or discussion with
    Indigenous peoples.
  2. A Human Rights Act that recognised Indigenous cultural rights and the right
    to self-determination, as well as economic, social and cultural rights, would
    mean that those rights would be considered when law and policy is developed. The
    Commission believes that this increased focus on human rights would lead to
    improved consultation with Indigenous peoples about issues of environmental
    management and policy.

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2 Asylum
seekers, refugees and migrants

2.1 Immigration
detention

  1. Over the last decade, Australia’s treatment of asylum seekers and
    other people in immigration detention has repeatedly breached Australia’s
    international human rights obligations. This has damaged Australia’s
    international reputation and, more importantly, the lives of many individuals
    and families.
  2. The Commission has done extensive work on immigration detention over the
    past decade, including investigating complaints from individuals in
    detention;[66] conducting annual
    inspections of detention
    facilities;[67] making submissions to parliamentary
    inquiries;[68] and conducting two national
    inquiries.[69]
  3. Most recently, the Commission released its 2008 report about conditions in
    Australia’s immigration detention
    facilities.[70] The key
    recommendations of the report included the following:

    • Australia’s mandatory detention law should be repealed.
    • The Migration Act 1958 (Cth) (Migration Act) should be amended so
      that people are only detained when it is necessary. Detention must be for a
      minimal period, be reasonable and be a proportionate means of achieving at least
      one of the aims outlined in international
      law.[71]
    • The Migration Act should be amended so that the decision to detain a person
      is subject to prompt review by a court; periodic independent reviews of the
      ongoing need to detain an individual are undertaken; and a maximum time limit
      for immigration detention is specified.
    • Minimum standards for conditions and treatment of persons in immigration
      detention should be set out in law and should reflect international human rights
      standards.
    • People should not be held in immigration detention on Christmas Island. All
      unauthorised arrivals who make claims for asylum should have those claims
      assessed through the refugee status determination process on the Australian
      mainland.
    • The Australian Government should implement all of the recommendations of the
      National Inquiry into Children in Immigration
      Detention.[72]
  4. If Australia had a Human Rights Act, many of the breaches of human rights
    identified by the Commission may have been prevented. A Human Rights Act would
    mean that any future changes to Australia’s immigration laws would need to
    be assessed against the human rights protected by the Human Rights Act.

(a) Mandatory
detention laws can result in arbitrary detention

  1. Australia’s system of mandatory detention has led to the prolonged and
    indefinite detention of many people. The Commission has repeatedly urged the
    Australian Government to repeal the provisions of the Migration Act that have
    led to indefinite and arbitrary detention in breach of the
    ICCPR.[73] Mandatory detention has
    also led to other human rights breaches including the breach of a child’s
    right to be detained only as a matter of last resort and for the shortest
    appropriate period of time.[74]
  2. While detention may be acceptable for a short period in order to conduct
    security, identity and health checks, currently the mandatory detention
    provisions of the Migration Act empower immigration officials to detain people
    for unlimited periods of time. There is no way for the Australian courts to
    review whether a person’s detention is arbitrary in breach of
    international law.
  3. The Commission’s 2008 report highlighted that, despite improvements in
    the physical conditions of immigration detention facilities over the past few
    years, the most critical issue remains: some people are still detained for
    prolonged and indefinite periods, without knowing when they will be released or
    whether they will be allowed to stay in Australia when that happens. It is well
    established that detaining people in these circumstances leads to negative
    impacts on their mental health.[75]
  4. The Commission is also concerned that children continue to be held in some
    immigration detention facilities, both on the mainland and on Christmas Island.
    For children and their families, the psychological effects of being detained can
    be devastating, and these facilities are inappropriate for anything but the
    briefest of periods.
  5. On 29 July 2008, the Minister for Immigration and Citizenship, Chris Evans,
    announced new directions for Australia’s immigration detention
    system.[76] The new directions
    provide for a shift in policy, away from the requirement that all unlawful
    non-citizens be detained, towards a presumption that detention will occur as a
    last resort and for the shortest practicable period.
  6. While the Commission has welcomed this development, it remains to be seen
    how the new directions will be implemented in practice, and in particular how
    the changes will be enforced or guaranteed.

(b) Detention
should be subject to judicial review

  1. The Commission has raised repeated concerns that the Australian courts
    cannot review the legality of a person’s immigration detention on the
    grounds that it breaches the prohibition on arbitrary
    detention.[77]
  2. The Australian 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 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 the ICCPR.
  3. The UN Human Rights Committee has said that the right to challenge the
    ‘lawfulness’ of one’s detention under article 9(4) of the
    ICCPR must include the opportunity to challenge detention which is
    arbitrary.[78]
  4. The Commission believes that any decision to detain a person should be
    subject to prompt review by a court; there should be periodic independent
    reviews of the ongoing need to detain an individual; and there should be a
    specified legal limit on the period of time for which immigration detention is
    permitted.
  5. These safeguards should be entrenched in legislation. If Australia had a
    Human Rights Act they would also need to be interpreted and applied consistently
    with the rights protected by a Human Rights Act.

(c) People
should not be detained in excised offshore places like Christmas Island

  1. Australia’s excision legislation creates a dual processing system for
    asylum seekers that, in the Commission’s view, is unjustified. People who
    arrive in excised offshore places are unable to make a valid visa application
    under the Migration Act unless the Minister exercises his non-compellable
    discretion to permit them to do
    so.[79] Further, people who arrive
    at excised places are not able to have their cases reviewed in the Refugee
    Review Tribunal or the Australian
    courts.[80]
  2. Until recently, detainees on Christmas Island were not entitled to legal or
    migration assistance. In July 2008, the Minister indicated that asylum seekers
    on the island would be given access to publicly funded assistance, as well as
    access to independent review of negative refugee status assessment
    decisions.
  3. The Commission welcomed these developments. However, it has ongoing concerns
    given the lack of lawyers and migration agents on the island; the lack of
    transparency surrounding the non-statutory refugee status assessment process
    applied on the island; and the lack of clarity regarding the system for
    conducting independent merits reviews.
  4. The Commission remains concerned that the practice of processing asylum
    seekers offshore undermines Australia’s international obligations under
    the Convention Relating to the Status of
    Refugees
    [81] (Refugee
    Convention), the ICCPR and the CRC. The lack of legal safeguards increases the
    risk of a person genuinely in need of Australia’s protection being
    returned to a place of persecution, and can also lead to breaches of
    children’s
    rights.[82]

(d) There
are no legal guarantees that detainees will be treated humanely in detention

  1. The Commission has long been concerned about the absence of adequate
    mechanisms to ensure that immigration detainees are treated in accordance with
    Australia’s international human rights obligations. In particular, the
    Commission remains concerned that, despite its repeated recommendations,
    Australian law does not set out minimum standards for conditions and treatment
    of immigration detainees.[83]
  2. Since 1998, immigration detention services have been provided by private
    sector providers under contract to the Australian Government. Detention service
    providers are required to meet service requirements, including conditions for
    immigration detainees, as part of their contractual obligations. However, the
    Commission considers that these have provided insufficient guidance on what
    service providers must do to ensure that conditions comply with human rights
    standards. Further, these service requirements do not provide people in
    immigration detention with a cause of action or other effective remedy for
    breaches of their human rights.
  3. Currently, if a person in immigration detention makes a complaint to the
    Commission alleging that the way they have been treated in detention breaches
    their human rights (for example, their right not to be subjected to cruel,
    inhuman or degrading treatment), the Commission can investigate the complaint.
    If the Commission finds that a breach of human rights has occurred, the
    Commission can table a report in federal Parliament. However, the
    Commission’s recommendations are not legally binding and may be ignored by
    the government.
  4. A Human Rights Act could impose a legal obligation on the Australian
    Government, and private companies that run detention services on behalf of the
    Australian Government, not to act inconsistently with the human rights of people
    in immigration detention. Under a Human Rights Act, a person could seek a
    legally enforceable remedy for a breach of their human rights while in
    immigration detention.

2.2 Non-refoulement
obligations

  1. The Commission has repeatedly recommended that a system of complementary
    protection should be introduced to protect people who do not fall within the
    definition of refugee under the Refugee Convention, but who nonetheless must be
    protected from refoulement under the ICCPR, the CAT or the
    CRC.[84]
  2. Australia does not have an effective system of protection for these asylum
    seekers, who may risk death, torture or cruel, inhuman or degrading treatment or
    punishment if returned. Instead, their claims can only be considered after they
    have been rejected at each stage of the refugee determination process and then
    seek a personal intervention by the Minister. Although the Minister may consider
    Australia’s obligations under other human rights treaties, the
    Minister’s decisions in these cases are non-compellable and
    non-reviewable.
  3. In May 2009, the Australian Government committed to provide $4.8 million
    over four years to implement a system of complementary protection for people to
    whom Australia has non-refoulement obligations. This announcement is welcome and
    the Commission looks forward to seeing this system implemented as soon as
    possible.

2.3 Formal
citizenship test

  1. In 2007, the Australian Government introduced a formal citizenship test as
    part of the requirements for applying for Australian citizenship. The test aims
    to verify that applicants have demonstrated English competence and understanding
    of Australian values.
  2. The Commission recognises the right of the Australian Government to
    introduce a formal citizenship test that is pursuant to a legitimate aim,
    proportionate to achieving this aim, and based on reasonable and objective
    criteria.
  3. However, the Commission is concerned that the particular test introduced may
    disadvantage certain categories of people, particularly refugees and
    humanitarian applicants, and deprive them the right to equal treatment under
    articles 2 and 26 of the ICCPR.
  4. The Commission believes that the formal citizenship test for migrants and
    refugees who wish to become Australian citizens should be assessed against human
    rights standards, in order to ensure that it does not have a discriminatory
    impact.
  5. The Commission believes that humanitarian applicants should not have to
    demonstrate English language competency or an understanding of Australian values
    in order to find permanent refuge and settlement in Australia. It would also be
    inappropriate to require family reunion applicants, such as applicants for aged
    parent or spouse visas, to pass language or values
    tests.[85]

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3 People
trafficking

  1. While slavery, sexual servitude and the trafficking of people for
    exploitation are crimes under Australian law, these practices still occur in
    Australia. The Commission believes that the Australian Government
    Anti-Trafficking Strategy needs a greater focus on the human rights of people
    who are trafficked to Australia.[86]
  2. The government funded Victim Support Program is only available to victims of
    people trafficking who are assessed by the Australian Federal Police as eligible
    for a visa under the People Trafficking Visa Framework. The Commission is
    concerned that this framework fails to protect the rights of trafficked people
    who are not of interest or assistance to police. The Commission expressed these
    concerns to a Department of Immigration and Citizenship review of the visa
    framework in 2008.
  3. People who have been trafficked to Australia are non-citizens and, in many
    cases, are in Australia without a valid visa. Access to victim support,
    culturally appropriate assistance and legal advice is vital to help trafficked
    people recover from their experience and understand their legal rights.
  4. The Commission hopes that the outcome of the 2008 review of the visa
    framework will mean that people who have been trafficked to Australia will
    receive support and protection on the basis of need.This is
    consistent with the recent recommendation by the United Nations Human Rights
    Committee that Australia should ‘provide equal assistance and protection
    to all victims identified regardless of their participation or otherwise in
    criminal proceedings against
    perpetrators’.[87]
  5. Australia’s response to trafficking shows that insufficient attention
    to human rights in the law- and policy-making process can result in inadequate
    protection of human rights. For example, a recent report found that government
    departments had not considered the policy implications of cases where alleged
    victims of trafficking were not mentally fit to decide whether to assist police,
    ‘nor developed a way forward on managing mentally impaired victims, to
    ensure that their rights and interests are adequately
    protected’.[88]
  6. Similarly, insufficient efforts have been made to ensure that people who
    have been trafficked to Australia have access to effective remedies outside the
    criminal justice system. To date, the Commission is only aware of one award of
    compensation to a person who was trafficked to
    Australia.[89] The Commission urges
    the Australian Government to explore legal options to improve the ability of
    people who have been trafficked to seek
    compensation.[90]
  7. These weaknesses in Australia’s response to trafficking could have
    been avoided if there had been a greater focus on the human rights of trafficked
    people at the time anti-trafficking laws and polices were first introduced. This
    might have occurred if Australia had a Human Rights Act at the time.
  8. As Australia begins to respond to emerging issues such as labour trafficking
    outside the sex industry and trafficking for forced marriage, new laws and
    policies should be formulated within a human rights framework. A Human Rights
    Act could make sure that human rights are placed at the centre of efforts to
    address and prevent trafficking.
  9. Australia also needs to develop ‘best practice models for identifying
    and responding to possible victims of labour trafficking, including
    investigating the effectiveness of responses based on education about rights,
    rather than victims’.[91]

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4 Counter-terrorism
legislation

  1. Since the terrorist attacks in the United States on 11 September 2001, the
    Australian Government has introduced over 40 new counter-terrorism laws. The
    Commission has repeatedly raised concerns that a number of the new laws may
    breach, or allow for the breach of, Australia’s human rights obligations.
  2. The Commission believes the best way to ensure that future efforts to
    protect Australia’s national security comply with Australia’s human
    rights obligations is to introduce a Human Rights Act.

4.1 Inadequate
safeguards against human rights violations

  1. The Commission is concerned that a number of Australia’s
    counter-terrorism laws fail to minimise the risk of human rights violations
    occurring. Two examples are outlined here, relating to the right to liberty and
    security of the person,[92] and the
    right of a detainee to be brought before a judicial officer to seek a ruling on
    the lawfulness of their
    detention.[93]
  2. The Anti-Terrorism Act 2004 (Cth) introduced special powers for the
    Australian Federal Police (AFP) to arrest a person suspected of committing a
    terrorism offence, and detain that person for the purpose of investigating
    whether that person had committed any terrorism offence.[94] Pursuant to these special powers,
    the AFP can hold a person for questioning for four
    hours,[95]and a magistrate can
    authorise an extension of up to 20
    hours.[96] This means a person can
    be held without charge for 24 hours for the purpose of questioning.
  3. However, ‘dead time’ can be excluded from the total questioning
    time.[97] ‘Dead time’
    includes a range of periods of time, such as allowing the detainee to rest, or
    conveying a person to a place of detention. But ‘dead time’ also
    includes allowing the investigating officer to request further time for
    investigating a terrorism
    offence.[98] The investigating
    officer can specify how much ‘dead time’ is required for this
    purpose. The effect of these ‘dead time’ provisions is that a person
    could be held for much longer than 24 hours.
  4. For example, Dr Mohammed Haneef was held in pre-charge detention for 12 days
    pursuant to the operation of one of the ‘dead time’
    provisions.[99] Dr Haneef’s
    case demonstrates that there are inadequate safeguards in the operation of the
    ‘dead time’ provisions to prevent a person being held for an
    extended period of time (far beyond 24 hours), without proper review of the
    lawfulness of that detention. If a Human Rights Act had been in place at the
    time the ‘dead time provisions’ were being drafted, the provisions
    may have been accompanied by stronger and more effective safeguards.
  5. Similarly, the Australian Security Intelligence Organisation Legislation
    Amendment (Terrorism) Act 2003
    (Cth) gave ASIO special powers to question,
    or question and detain, a person suspected of having information related to an
    anti-terrorism investigation, even if that person is not suspected of a
    terrorist offence.[100] Under
    these powers, a person who is not suspected of a terrorism offence can be
    detained for up to seven
    days.[101] The grounds for
    detention can be kept secret.[102]
  6. The Commission considers that this power of ASIO to detain an individual who
    is not suspected of any crime creates a serious risk of violating a
    person’s right to liberty and security of the person, and a detained
    person’s right to be brought before a judicial officer to rule on the
    lawfulness of their detention.
  7. These laws are subject to a sunset clause which means their operation must
    be reviewed in 2016. The Commission believes that when Parliament decides
    whether to extend the sunset clause, the laws should be assessed within a human
    rights framework. This could be achieved by introducing a Human Rights Act which
    provides guidance on when human rights can be legitimately limited.

4.2 Inadequate
assessment of the human rights compatibility of Australia’s
counter-terrorism laws

  1. Counter-terrorism laws have often been enacted in haste and without adequate
    assessment of their impact on fundamental rights and freedoms.
  2. Introducing a Human Rights Act could ensure that in the future, proposed
    counter-terrorism measures are assessed in a human rights framework before they
    are adopted. It would mean that:

    • human rights are identified and protected
    • legitimate restrictions on human rights are justified
    • government agencies consider the human rights impact of counter-terrorism
      measures
    • courts act as a safeguard against executive overreach in individual
      counter-terrorism cases.

4.3 Australia’s
counter-terrorism laws should be independently reviewed

  1. With over 40 counter-terrorism laws enacted since 2001, there is a need to
    ensure that the operation of these laws, both individually and collectively, is
    subject to independent review. Current mechanisms for the review of
    counter-terrorism laws are ad hoc, and pay insufficient attention to compliance
    with human rights standards.
  2. The Commission has consistently called for the establishment of an
    Independent Reviewer of counter-terrorism laws to examine how Australia’s
    counter-terrorism laws are working in practice, and whether any significant
    human rights concerns have arisen as a result of the operation of these
    laws.[103]
  3. Reports by bi-partisan parliamentary committees and independent reviews of
    Australia’s counter-terrorism laws have all said that Australia needs to
    establish an independent body to provide a comprehensive and holistic review of
    the operation of counter-terrorism
    laws.[104]
  4. On 23 December 2008, the Australian Government announced that it would amend
    certain counter-terrorism offences and establish a National Security Legislation
    Monitor to review the practical operation of counter-terrorism legislation on an
    annual basis. The National Security Legislation Monitor will be a new statutory
    office in the Prime Minister’s Portfolio and will report to
    Parliament.[105]
  5. While it would appear that the Australian Government has stopped short of
    establishing a mechanism of regular independent review of Australia’s
    counter-terrorism laws, the Commission welcomes the government’s decision
    to implement many of the recommendations made by the Inquiry by the Hon John
    Clarke QC into the case of Dr Mohamed Haneef, the Review of Sedition Laws in
    Australia, and the reports of the Parliamentary Joint Committee on Intelligence
    and Security.[106] The Commission
    understands a discussion paper and exposure draft of legislation to implement
    these changes will be released in 2009.
  6. The Commission believes it is vital that all new counter-terrorism laws
    comply with Australia’s human rights obligations. A Human Rights Act could
    make sure that, in future, all proposed counter-terrorism laws are accompanied
    by a human rights compatibility statement.

4.4 Counter
discrimination and promote social inclusion

  1. Many Arab and Muslim Australians are concerned that counter-terrorism
    legislation is being implemented in a way that has a disproportionate impact on
    their communities.[107] Uncertainties around the definition of terrorism and terrorist organisations
    have fuelled confusion and
    fear.[108]
  2. In 2004, the Commission published its report Ismaع–Listen:
    National consultations on eliminating prejudice against Arab and Muslim
    Australians
    .[109]
  3. The report found that members of Muslim and Arab communities had experienced
    increasing levels of discrimination since the terrorist attacks on 11 September
    2001.
  4. The Ismaع report identified three main trends within Muslim and Arab
    communities:

    • an increase in fear and insecurity
    • the alienation of some members of the community
    • a growing distrust of authority.
  5. In June 2006 the Security Legislation Review Committee expressed
    ‘serious concern’ about the way in which counter-terrorism
    legislation is perceived by some members of Muslim and Arab communities in
    Australia.[110]
  6. The 2006 report of the Parliamentary Joint Committee on Intelligence and
    Security found that ‘one of the most damaging consequences of the
    terrorist bombings in the US, the UK, Europe and Indonesia has been a rise in
    prejudicial feelings towards Arab and Muslim
    Australia’.[111] It also
    expressed concern about ‘reports of increased alienation attributed to new
    anti-terrorist measures, which are seen as targeting Muslims and contributing to
    a climate of suspicion.[112]
  7. Both the Security Legislation Review Committee and the Parliamentary Joint
    Committee on Intelligence and Security supported remedying these problems
    through measures which promote social inclusiveness and which counter
    discrimination.[113] The ongoing
    work of the Commission with Muslim and Arab communities is vital in this
    context.[114]

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5 Gender
equality

  1. While the Commission acknowledges the progress made towards achieving
    equality between women and men, the Commission remains concerned about the
    ongoing and persistent gender inequality entrenched in Australian life.
  2. Introducing a Human Rights Act could help ensure that law and policy makers
    actively look for ways in which new laws and policies could promote gender
    equality.
  3. The Sex Discrimination Commissioner has identified a number of areas of
    gender inequality requiring action by the Australian
    Government.[115]In July 2008, the
    Sex Discrimination Commissioner released her Plan of Action towards Gender
    Equality, setting out five priority areas for her term of
    office.[116] The Commission has
    since made a number of submissions to Australian Government inquiries to
    progress these reforms at the national level.

5.1 Strengthening
laws to prevent sex discrimination and promote gender equality

  1. The Commission is concerned about the limited ability of the Sex
    Discrimination Act 1984
    (Cth) (SDA) to achieve substantive gender equality
    in a number of areas of public and private
    life.[117] The SDA does not fully implement Australia’s international human rights
    obligations, particularly under CEDAW.
  2. The Senate and Legal Constitutional Affairs Committee recently completed an
    inquiry into the effectiveness of the SDA in eliminating discrimination and
    promoting gender equality. The Commission made 54 recommendations for immediate
    reform of the SDA and also proposed a more extensive second stage of inquiry to
    consider 11 more extensive reform
    proposals.[118] The majority of
    the Commission’s recommendations were adopted by the Senate Committee
    Inquiry.[119] The Australian Government is yet to respond to the Senate Committee’s
    report.
  3. The Commission’s previous proposals for strengthening laws to prevent
    sex discrimination should inform the implementation of the Commission’s
    recommendation to strengthen and streamline Australian federal discrimination
    law.

5.2 Paid
parental leave

  1. The Commission has congratulated the Australian Government on its recent
    historic announcement that it will fund a national legislated scheme of paid
    parental leave (the Scheme), with a commencement date of 1 January 2011. The
    Commission has been a long-standing advocate of the need to establish such a
    scheme.
  2. It is important to now ensure that the Scheme is appropriately implemented,
    including an effective awareness-raising and education campaign for both
    employees and employers. Further, there is a need for a continuous program of
    monitoring and evaluation so the effectiveness of the Scheme is maximised.
  3. The Commission believes the Scheme is an important first step towards
    securing a world class paid parental leave system in Australia. There are a
    number of improvements to the Scheme that remain outstanding, including
    achieving:

    • superannuation on the leave entitlement
    • full coverage for all workers, not only primary carers in receipt of $150
      000 or less

      • income replacement, rather than payment at the rate of the Federal Minimum
        Wage
      • availability of at least two weeks supporting parent leave (commonly known
        as paternity leave)
      • availability of additional supporting parent leave (ideally four weeks, to
        be taken on a ‘use it or lose it’ basis)
      • a total of one year of paid parental leave for new parents.
  4. The Commission has welcomed the Australian Government’s commitment to
    undertake a review of the Scheme two years after implementation, during which
    the above measures can be considered.
  5. The Commission recommends that the Australian Government remove its
    reservation to article 11(2)(b) of CEDAW.
  6. The Commission also recommends that the Australian Government take steps
    towards ratification of the Maternity Protection Convention 2000 (No 183)
    and ensure compliance with other provisions of that
    Convention.[120]
  7. For further detail about the Commission’s recommendations regarding
    achieving a world class system of paid parental leave for Australia, see the
    Commission’s two submissions to the Productivity Commission’s
    Inquiry into Paid Maternity, Paternity and Parental Leave
    (2008).[121]

5.3 Balancing
work and caring responsibilities

  1. The Commission believes that there needs to be greater structural support
    for men and women to balance paid work and caring
    responsibilities.[122] This is
    essential for eliminating discrimination against women in employment as required
    by article 11 of CEDAW.
  2. The Commission is concerned that the new National Employment
    Standards
    , established as part of the Australian Government’s new
    workplace relations framework, provide inadequate protection for workers with
    caring responsibilities. The new right to request flexible working arrangements
    under the National Employment Standards is limited to workers with
    children under school age or children with disability under the age of 18 and
    does not apply to workers unless they have completed 12 months of continuous
    service. These limitations will have a disproportionate impact on women and men
    with wide-ranging care dependent relationships that can develop at any point
    over the work-life
    cycle.[123]
  3. The Commission is also concerned that the family responsibilities provisions
    of the SDA provide extremely limited coverage for employees experiencing this
    form of discrimination. Currently, protection against discrimination on the
    grounds of family responsibilities is limited to situations of direct
    discrimination and dismissal from
    employment.[124] These problems
    should be addressed by strengthening federal discrimination laws.
  4. For the Commission’s recommendations about improving the SDA to
    protect workers from discrimination on the grounds of family and carer
    responsibilities, see the Commission’s submission to the Inquiry into the
    Effectiveness of the Sex Discrimination
    Act.[125]

5.4 Women’s economic security in
retirement

  1. The Commission is concerned about the significant disparity between the
    retirement savings and income of men and women. Current figures show that
    women’s superannuation balances are less than half of those of
    men.[126] This stark figure is a
    clear marker of gender inequality in Australia.
  2. Linking superannuation exclusively to engagement in paid work disadvantages
    women and other groups with marginal labour force attachment and lower earnings.
    Superannuation is a type of social insurance under article 9 of the ICESCR. Due
    to superannuation being linked to paid work, women do not currently equally
    enjoy the right to social security in Australia.
  3. Women are more likely to have broken paid work patterns due to caring
    responsibilities and have lower life-time earnings due to pay inequity. This
    means that, not only do women generally have lower levels of superannuation
    coverage over their lifetime, but when they do engage in paid work, they
    accumulate lower amounts of superannuation. Forms of age discrimination can
    create further barriers to participation in the paid workforce.
  4. With women generally retiring earlier and living longer than men, many women
    face prospects of financial insecurity and poverty in retirement, often solely
    relying on the Age Pension. Of all household types in Australia, elderly single
    women are at the greatest risk of
    poverty.[127] Around 73% of those
    on the single rate of the Age Pension are
    women.[128]
  5. The Australian Government is currently reviewing the retirement income
    system as part of a broader review of the national tax system. The Commission
    has expressed concern that that current system does not enable women to equally
    enjoy their right to social security and subsequently, equally enjoy their right
    to an adequate standard of
    living.[129] If a Human Rights Act was introduced, the Australian Government would be
    required to formally assess the human rights implications of any legislative
    changes to the tax system.
  6. The Commission has recommended actions in the following areas to increase
    women’s economic security in retirement:

    • removing barriers to women’s labour market participation (see
      above)
    • increasing life-time earnings for women by reducing the gender pay gap (see
      below)
    • extending initiatives to increase superannuation contributions for low
      income earners and those on welfare payments, including investigation of a
      system to recognise the value of unpaid caring work
    • ensuring that the Age Pension protects individuals from poverty and fulfils
      Australia’s international human rights obligations for women and men to
      equally enjoy a right to an adequate standard of living, and to social
      security
    • regular monitoring and reporting of the gender impact of federal budgets and
      reforms (see below)
    • independent monitoring and reporting of Australia’s progress towards
      achieving substantive gender equality.
  7. The Commission welcomes the recent commitment by the Australian Government
    to increase the rate of the Age Pension. However, this measure alone will not be
    sufficient to address the gender gap between women and men in their retirement
    income and savings over the lifecycle.

5.5 Gender pay gap

  1. There is a gender pay gap in Australia, with female workers earning 16.7%
    less than male workers.
  2. The gender pay gap in Australia is measured using data on average weekly
    earnings collected by the Australian Bureau of Statistics. In August 2008, women
    working full-time were earning 83.3% in the male dollar – this equates to
    a 16.7% pay gap. When part-time and casual work is included, women were earning
    around two thirds of what men earn. Although the pay gap for full-time earnings
    has hovered between 15-19 percentage points in the last three decades, in recent
    years the gender pay gap has widened slightly.
  3. In a submission to the House of Representatives Inquiry into Pay Equity and
    associated issues related to increasing female participation in the workforce,
    the Commission recommended that the Australian Government:

    • Amend the SDA in accordance with the recommendations of the Senate Inquiry
      report into the effectiveness of the
      SDA,[130] particularly to: provide
      for full protection from discrimination in employment on the grounds of family
      and carer responsibilities; impose a positive duty on employers to reasonably
      accommodate the needs of workers in relation to pregnancy or family and carer
      responsibilities; and expand the powers of the Commission and the Sex
      Discrimination Commissioner to undertake inquiries, and to initiate complaints.
    • Amend the federal industrial relations laws (formally the Workplace
      Relations Act 1996
      (Cth), which the federal Government is replacing with the Fair Work Act 2009 (Cth) (Fair Work Act)), in relation to equal
      remuneration provisions.
    • Improve national institutional arrangements, and data collection and
      monitoring mechanisms, including providing for the Commission to independently
      monitor and regularly report on progress in achieving gender equality at the
      national level.
    • Increase funding to the Commission to enable it to exercise its existing and
      proposed new powers and functions in this
      area.[131]
  4. The Commission welcomes the new equal remuneration provisions in the Fair
    Work Act which have substantially adopted one of the Commission’s
    proposals for legislative reform in this area.

5.6 Sexual
harassment

  1. Despite nearly 25 years of legislative protection under the SDA, the
    Commission is concerned that sexual harassment remains a problem in Australian
    workplaces.
  2. Elimination of sexual harassment is critical to achieving gender equality in
    the workplace and implementing Australia’s obligations under CEDAW. The
    widespread incidence of sexual harassment in the workplace also impacts on the
    capacity of women to equally enjoy their right to safe and healthy working
    conditions, as set out in articles 3 and 7(b) of ICESCR.
  3. Addressing sexual harassment is one of the five priority areas for the term
    of the current Sex Discrimination Commissioner, set out in her Plan of Action
    Towards Gender Equality.
  4. In 2008, the Commission conducted its second national telephone survey about
    the nature and extent of sexual harassment in Australian workplaces. The
    national telephone survey was first conducted in 2003. The survey found that 22%
    of females and 5% of males had experienced sexual harassment in the workplace at
    some time, compared to 28% of females and 7% of males in 2003.
  5. Arising out of the findings of the 2008 national telephone survey, the
    Commission made a number of recommendations for action. The recommendations
    include that the Australia Government should provide sufficient funding to:

    • enable the Commission to work with relevant Australian Government agencies
      and small business representatives to develop and promote the use of specific
      sexual harassment training guidelines for small business
    • expand the capacity of the Commission to provide information to ensure
      people understand their rights and responsibilities under the law, and ensure
      the ongoing provision of an efficient and effective complaint service
    • enable the Equal Opportunity for Women in the Workplace Agency or the
      Commission to develop an audit kit to assist employers to monitor the incidence
      of sexual harassment
    • enable the Commission to repeat its national telephone survey every five
      years in order to independently monitor trends in the nature and extent of
      sexual harassment in Australian
      workplaces.[132]
  1. In the 2008 Senate Inquiry into the effectiveness of the SDA in eliminating
    discrimination and promoting gender equality, sexual harassment was a specific
    terms of reference for the Inquiry. The Commission made a number of
    recommendations to the Inquiry to improve the capacity of the SDA to redress
    sexual harassment.
  2. The Commission highlighted the need for expanded legal protection and
    comprehensive education efforts to eliminate sexual harassment. The Commission
    also recommended that the Australian Government increase funding to the
    Commission to perform its policy development, education, research, submissions,
    public awareness and inquiry functions to eliminate discrimination and promote
    gender equality.[133]
  3. A number of the Commission’s recommendations were adopted by the
    Inquiry. As noted above, the Australian Government is yet to respond to the
    Senate Committee’s report. These issues should be addressed as part of
    efforts to strengthen and streamline federal discrimination law.

5.7 Gender-based
violence

  1. Gender-based violence is still a serious problem in Australia. Experiences
    of violence severely limit the capacity of women to equally enjoy their human
    rights.
  2. As many as one in three Australian women are affected by domestic and family
    violence.[134] Nearly one in five
    Australian women has experienced sexual violence since the age of
    15.[135] Domestic violence has
    been identified as the leading contributor to preventable death, disability and
    illness in women aged 15 to 44 in the state of
    Victoria.[136] Further, domestic
    violence is the most common reason cited by individuals seeking assistance with
    Australian housing services.[137] A high proportion of women with a disability experience domestic
    violence.[138]
  3. Since November 2007, the Australian Government has introduced some key
    initiatives to address gender-based violence. In May 2008, the Australian
    Government formed a National Council to Reduce Violence Against Women and
    Children (the National Council). The National Council was directed to develop a
    12 year National Plan to Reduce Violence Against Women and Children (the
    National Plan).
  4. In April 2009, the Australian Government released Time for Action: The
    National Council’s Plan for Australia to Reduce Violence against Women and
    their Children, 2009–2021
    along with the Australian Government’s
    response. The development, implementation and evaluation of the National Plan
    has been referred to the Council of Australian Governments (COAG). The
    Australian Government has also committed to implementing a selection of the
    urgent recommendations of the report.
  5. The Commission has welcomed these developments, while urging the Australian
    Government to ensure that:

    • The development, implementation and evaluation of the National Plan is
      supported with sustained commitment and proper resourcing.
    • The National Plan receives priority attention within COAG and is implemented
      by early 2010 in line with the Australian Government’s commitment.
    • The National Plan includes funding to adequately resource participatory
      decision making processes and to facilitate stakeholder and community input into
      implementation and evaluation.
    • The National Plan is regularly monitored by an independent body to measure
      progress. This includes developing strong data collection and evaluation
      mechanisms, as well as the setting of appropriate targets and
      benchmarks.

5.8 National
gender equality machinery

  1. The Commission notes the importance of Australia having in place robust
    national gender machinery, including gender budgeting analysis, accountability
    systems, independent monitoring and benchmarking, and a strong, well-supported
    civil society, in order to prevent sex discrimination and promote gender
    equality.[139]
  2. The Commission encourages the Australian Government to review the
    effectiveness of existing national gender machineries in Australia, particularly
    in the lead up to the 54th session of the UN Commission on the Status of Women
    in March 2010, as part of the review and appraisal of the implementation of the
    Beijing Declaration and Platform of Action and the outcome of the 23rd Special
    Session of the General Assembly on ‘Women 2000: gender equality,
    development and peace for the twenty-first century’ in June 2000.

(a) Gender
budgeting

  1. The Commission notes the particular importance of national gender
    machineries enabling appropriate gender budgeting to occur. The Commission has
    recommended that a Gender Analysis Unit should be established within Treasury to
    conduct gender disaggregated public expenditure analysis, gender disaggregated
    tax incidence analysis, and yearly gender budget
    statements.[140]

(b) Monitoring
and reporting gender equality indicators

  1. In Australia, there is no institutional arrangement in place for an agency
    independent of government to regularly report to Parliament and the Australian
    public, providing a considered evidence-based assessment of progress against an
    integrated set of national gender equality indicators and to benchmark progress
    against those indicators over time.
  2. The Commission has existing functions, such as its education and research
    function, which would enable ongoing monitoring and reporting on gender equality
    benchmarks and indicators at a national level. However, the Sex Discrimination
    Commissioner and the Commission have assessed that the Commission is not in a
    position to assume this important national role under existing funding
    arrangements.
  3. The Senate Standing Committee on Legal and Constitutional Affairs
    recommended that ‘the Act be amended to require the Sex Discrimination
    Commissioner to monitor progress towards eliminating sex discrimination and
    achieving gender equality, and to report to Parliament every four
    years’.[141]
  4. The Committee further recommended that the Commission be provided with
    additional resources to enable it to perform this
    role.[142] This recommendation
    should be implemented as part of action taken to strengthen and streamline
    Australia’s federal discrimination laws.

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6 Gay,
lesbian, bisexual, transgender and intersex people

6.1 Protection
against discrimination on the basis of sexual orientation, sex identity and
gender identity

  1. There remains insufficient protection against discrimination experienced by
    gay, lesbian, bisexual, transgender and intersex people in Australia. The best
    way to address these issues is through the implementation of the
    Commission’s recommendations to strengthen and streamline federal
    discrimination laws, and to begin a process of constitutional reform to protect
    the principle of equality for people in Australia.
  2. There is no federal law specifically prohibiting discrimination on the
    grounds of sexuality, sex identity or gender identity. While the Commission may
    investigate a complaint of discrimination in employment on the grounds of sexual
    orientation, and complaints of human rights breaches based on sex or gender
    identity, these protections are limited and any recommendations made by the
    Commission are not enforceable.
  3. Introducing a national Equality Act which provided a legal remedy for
    discrimination on the grounds of sexuality, and sex and gender identity, would
    send a strong message to the community that gay, lesbian, bisexual, transgender
    and intersex people are entitled to the same rights as any other person.
  4. In addition, same-sex couples in Australia do not enjoy equality of rights
    regarding relationship recognition, including civil marriage
    rights.

6.2 Official
documents and records for people who are sex and gender diverse

  1. Having documents that contain accurate information about sex and gender is
    crucial for the full participation in society of people who are sex and gender
    diverse. It is also an important aspect of freedom of expression and, in
    relation to travel documents, can affect a person’s freedom of movement
    and travel.[143]
  2. Some transgender, transsexual and intersex people have official documents
    that state an inappropriate sex. Although Australia has some systems that enable
    the sex marker on official documents to be changed, not all transgender,
    transsexual and intersex people can access those systems. In particular, current
    systems for changing the sex marker on some official documents can only be
    accessed by people who have undergone sex affirmation surgery. Further, the
    current systems do not allow for people who are married to change some or all of
    their documents.
  3. The absence of nationally consistent procedures to assist people who are sex
    and gender diverse to change their official documents and government records
    means that the process may be time consuming, frustrating and
    inconsistent.[144]
  4. In March 2009, the Commission launched the concluding paper from its sex and
    gender diversity project, Sex Files: the legal recognition of sex in
    documents and government records
    (Sex
    Files).[145] In Sex Files, the
    Commission recommended that:

    • Access to the system for having sex legally recognised to accord with sex
      identity should be broadened.
    • The process for amending documents and records to legally recognise sex
      identity should be streamlined and user-friendly.
  5. In Sex Files, the Commission further recommended that the federal government
    should take a leadership role in ensuring that there is a nationally consistent
    approach to the legal recognition of sex, in accordance with the concluding
    paper’s recommendations.

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7 National
strategy for implementation of the Convention on the Rights of Persons with
Disabilities

  1. The Commission has welcomed the government's decision to pursue a National
    Disability Strategy based on the Convention on the Rights of Persons with
    Disabilities
    (Disability Convention).
  2. The Disability Convention makes even clearer than previous human rights
    instruments that legal measures alone are not a sufficient response to
    Australia’s treaty obligations on human rights, or sufficient to ensure
    that human rights are fully and equally enjoyed in practice by all people in
    Australia.
  3. The Disability Convention, while intended to reflect rights already
    recognised in the human rights treaties, provides substantially more detail than
    previously available on the meaning of those rights in relation to people with
    disability and guidance on measures which should be adopted or considered in
    turning rights into realities.
  4. The obligations of parties to the Disability Convention (under article 4)
    include the general obligation:

    to adopt all appropriate
    legislative, administrative and other measures for the implementation of the
    rights recognized in the present Convention.

  5. Article 4(1)(c) of the Convention requires parties to ‘take into
    account the protection and promotion of the human rights of persons with
    disabilities in all policies and programmes’ (emphasis added),
    rather than only in those areas specifically targeted at disability issues.
  6. The Commission considers it clear that a comprehensive national strategy
    involving all areas and levels of government is necessary to implement this
    obligation.
  7. A National Disability Strategy should include:
    • development and implementation of more detailed disability strategies for
      all areas and levels of government, both on relevant aspects of each department
      and agency's specific responsibilities and elements common to all agencies
    • establishment of a co-ordination mechanism and monitoring
      framework
    • substantially enhanced resourcing for disability representative, advocacy
      and advisory bodies to ensure they are able to provide the input governments
      will require.[146]

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8 The
right to vote

  1. The Commission has repeatedly raised concerns about the ability of
    Australians to exercise their right to vote and participate in the political
    process without
    discrimination.[147] These
    concerns have included:

    • the lack of availability of electronic voting for people with a vision
      impairment
    • difficulties faced by people who are homeless
    • restrictions on the voting rights of prisoners.
  2. Electronically assisted voting for people with vision impairment was
    trialled at the 2007 federal election. In March 2009 the Joint Committee on
    Electoral Matters released a report on the trial, recommending that electronic
    voting be discontinued, largely due to the high level of expense
    involved.[148]
  3. However, the Commission believes it is important that this method of voting
    be made permanently available and be provided in as many locations as possible.
    Eligibility to use this method of voting should be extended to all people who
    are unable to complete a secret ballot using a pencil and paper, including
    people with physical disability and people who cannot effectively use written
    instructions in completing a ballot paper, whether by reason of intellectual or
    learning disability, or other language or literacy difficulties.
  4. People experiencing homelessness in Australia often face significant
    difficulties in exercising their right to vote. For example, some people may
    have difficulty meeting proof of identity requirements because they do not have
    and cannot afford to obtain the necessary identity documents. Further, the
    threat of monetary penalties for failure to vote or failure to register changes
    of address may also discourage homeless people from enrolling to vote.
  5. Under Australian law, persons serving sentences of imprisonment of three
    years of more are not eligible to
    vote.[149] The Commission is
    concerned that this restriction on the right of prisoners to vote may not be
    proportionate, as required by article 25 of the
    ICCPR.[150] Further, this
    restriction may have a disproportionate impact on groups who are overrepresented
    in the prison population, such as Indigenous peoples, people with mental illness
    and people with an intellectual disability.

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[1] These issues are discussed in
detail in: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2003 (2004), at http://www.humanrights.gov.au/social_justice/sj_report/sjreport03/index.html (viewed 4 June 2009). See also Australian Institute of Health and Welfare and
Australian Bureau of Statistics, The Health and Welfare of Australia's
Aboriginal and Torres Strait Islander Peoples 2005
(2005), at www.aihw.gov.au/publications/ihw/hwaatsip05/hwaatsip05.pdf (viewed 4 June 2009); Australian Institute of Health and Welfare, Australia's
Health No.11
(2008), at http://www.aihw.gov.au/publications/aus/ah08/ah08-c03.pdf (viewed 4 June 2009). In May 2009, the Australian Bureau of Statistics issued
new data indicating that the life expectancy gap between Indigenous and
non-Indigenous people is approximately 10 years and not 17 years as previously
estimated. See further Aboriginal and Torres Strait Islander Social Justice
Commissioner, ‘More accurate reporting needed to address life expectancy
gap’ (Press Release, 26 May 2009). At http://www.humanrights.gov.au/about/media/media_releases/2009/41_09.html (viewed 4 June 2009).
[2] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2003, note 1.
[3] The Hon J Macklin MP, Statement on the United Nations Declaration on the
Rights of Indigenous Peoples
(Speech delivered at Parliament House,
Canberra, 3 April 2009), at http://www.un.org/esa/socdev/unpfii/documents/Australia_official_statement_endorsement_UNDRIP.pdf (viewed 4 June 2009); The Hon R McClelland MP, Remarks in Support of the
United Nations Declaration on the Rights of Indigenous Peoples
(Speech
delivered at Parliament House, Canberra, 3 April 2009), at http://www.attorneygeneral.gov.au/www/ministers/robertmc.nsf/Page/Speeches_2009_3April2009-RemarksinSupportoftheUnitednationsDeclarationontheRightsofIndigenousPeoples (viewed 1 June 2009).
[4] UN
Committee on Economic, Social and Cultural Rights, Concluding Observations of
the Committee on Economic, Social and Cultural Rights: Australia
(Advance
Unedited Version), UN Doc E/C.12/AUS/CO/4 (2009), para 33. At http://www2.ohchr.org/english/bodies/cescr/docs/AdvanceVersions/E-C12-AUS-CO-4.doc (viewed 9 June 2009).
[5] Minister
for Families, Community Services and Indigenous Affairs, ‘National
emergency response to protect children in the NT’ (Media Release, 21 June
2007). At http://www.fahcsia.gov.au/internet/minister3.nsf/content/emergency_21june07.htm (viewed 4 June 2009). The catalyst for the measures was the release of Report of
the Northern Territory Board of Inquiry into the Protection of Aboriginal
Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle: ‘Little
Children are Sacred’
(2007). At http://www.inquirysaac.nt.gov.au/ (viewed 4 June 2009).
[6]Northern Territory National Emergency Response Act 2007 (Cth); Families, Community Services and Indigenous Affairs and Other Legislation
Amendment (Northern Territory National Emergency Response and Other Measures)
Act 2007
(Cth); Social Security and Other Legislation Amendment (Welfare
Payment Reform) Act 2007
(Cth).
[7] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007 (2008). At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html (viewed 4 June 2009).
[8] Aboriginal and Torres Strait Islander Social Justice Commissioner, above, pp 238
- 239.
[9] In response to an Early
Warning and Urgent Action Procedure, the UN Committee on the Elimination of
Racial Discrimination has asked Australia to submit further details and
information on the NTER no later than 31 July 2009. See F Victoire Dah,
Chairperson of the Committee for the Elimination of Racial Discrimination,
Correspondence to C Millar, Ambassador, Permanent Representative, Permanent
Mission of Australia to the United Nations at Geneva, 13 March 2009. At http://www2.ohchr.org/english/bodies/cerd/docs/early_warning/Australia130309.pdf (viewed 9 June 2009). See also UN Human Rights Committee, Consideration of
Reports Submitted by States Parties under Article 40 of the Covenant: Concluding
Observations of the Human Rights Committee – Australia
(Advanced
Unedited Version), UN Doc CCPR/C/AUS/CO/5 (2 April 2009), at http://www2.ohchr.org/english/bodies/hrc/docs/co/CCPR-C-AUS-CO5-CRP1.doc (viewed 9 June 2009); UN Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 4.
[10] Northern Territory Emergency Response Review Board, Northern Territory
Emergency Response: Report of the NTER Review Board
(2008), p 10. At http://www.nterreview.gov.au (viewed 4
June 2009).
[11]Australian
Government and Northern Territory Government Response to the Report of the NTER
Review Board
(21 May 2009). At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/response_to_reportNTER/Documents/Aust_response_1882953_1.pdf (viewed 4 June 2009).
[12] Australian Government, Future Directions for the Northern Territory Emergency
Response
Discussion Paper (21 May 2009). At http://www.fahcsia.gov.au/sa/indigenous/progserv/ntresponse/future_directions/Documents/discussion_paper_6.pdf (viewed 4 June 2009).
[13] Northern Territory Board of Inquiry into the Protection of Aboriginal Children
from Sexual Abuse, note 5; Aboriginal
Child Sexual Assault Taskforce, Breaking the Silence: Creating the Future.
Addressing child sexual assault in Aboriginal communities in NSW
(2006), at http://www.lawlink.nsw.gov.au/acsat (viewed 4 June 2009).
[14] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007
, note 7, p
116.
[15] Australian Institute
of Health and Welfare, Child Protection Australia 2007-2008, Child
Welfare Series No 45 (2009), p 65. At http://www.aihw.gov.au/publications/cws/cpa07-08/cpa07-08.pdf (viewed 4 June 2009).
[16] Council of Australian Governments, Protecting children is everyone’s
business: National Framework for Protecting Australia’s Children
2009-2020
(2009). At http://www.coag.gov.au/coag_meeting_outcomes/2009-04-30/docs/child_protection_framework.pdf (viewed 4 June 2009).
[17] 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. At http://www.humanrights.gov.au/social_justice/familyviolence/index.html (viewed 4 June 2009). See also Aboriginal and Torres Strait Islander Social
Justice Commissioner, Social Justice Report 2007, note 7, pp 194 - 195.
[18] Cape York Institute for
Policy and Leadership, From hand out to hand up (2007). At http://www.cyi.org.au/WEBSITE%20uploads/Welfare%20Reform%20Attachments/From%20Hand%20Out%20to%20Hand%20Up_Welfare%20Reform%20Report.pdf (viewed 4 June 2009).
[19] Council of Australian Governments, Protecting children is everyone’s
business
, note 16, p
19.
[20] Close the Gap, at http://www.closethegap.com.au, (viewed
4 June 2009).
[21] See Aboriginal
and Torres Strait Islander Social Justice Commissioner, ‘More accurate
reporting needed to address life expectancy gap’, note 1.
[22] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 167
(Hon Kevin Rudd MP, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 4 June 2009).
[23] Australian Bureau of Statistics, The Health and Welfare of Australia’s
Aboriginal and Torres Strait Islander Peoples
, note 1, p
46.
[24] Australian Bureau of
Statistics, above, p 47.
[25] UN
Human Rights Council, Report of the Special Rapporteur on adequate housing as
a component of the right to an adequate standard of living, Miloon Kothari,
Addendum - Mission to Australia
(31 July to 15 August 2006), UN 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 4 June 2009).
[26] The UN
Committee on Economic, Social and Cultural Rights has noted that cultural
adequacy is an essential aspect of housing adequacy: ‘the way housing is
constructed, the building materials used and the policies supporting these must
appropriately enable the expression of cultural identity and diversity of
housing’. UN Committee on Economic, Social and Cultural Rights, General
Comment 4: The right to adequate housing,
UN Doc E/1992/23, annex III (1991)
114, para 8(g). At http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+4.En?OpenDocument (viewed 4 June 2009).
[27] UN
Committee on Economic, Social and Cultural Rights, Concluding Observations:
Australia
(2009), note 4, para
26.
[28] See the National
Affordable Housing Agreement
and its associated National Partnerships (NPs)
and the Council of Australian Governments Commitments from February 2009:
Council of Australian Governments, Special Council Of Australian Governments
Meeting: Nation Building And Jobs Plan – Communiqué
(2009). At http://www.coag.gov.au/coag_meeting_outcomes/2009-02-05/docs/20090205_communique.pdf (viewed 4 June 2009).
[29] Council of Australian Governments, National Partnership on Remote Indigenous
Housing Agreement
, Fact Sheet. At http://www.coag.gov.au/coag_meeting_outcomes/2008-11-29/docs/20081129_remote_indigenous_housing_factsheet.pdf (viewed 4 June 2009).
[30] Both
of these partnerships fall within the Australian Government’s overarching National Indigenous Reform Agreement (NIRA). This provides a
summary of action being taken by all governments against the ‘Closing the
Gap’ targets, as well as the operation of the mainstream national
agreements in health, schools, vocational education and training, disability
services and housing and several National
Partnerships.
[31] Tangentyere
Council, ‘Tangentyere Supports Open and Transparent Tenancy Reform’
(Media Release, 25 May 2009). At http://www.tangentyere.org.au/publications/documents/TENANCYREFORM25MAY2009.pdf (viewed 4 June 2009).
[32]United Nations Declaration on the Rights of Indigenous Peoples (Declaration on the Rights of Indigenous Peoples), GA Resolution 61/295, UN Doc
A/61/L.67 (2007), arts 5, 8, 10, 19, 23, 27, 28. At http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (viewed 29 May 2009).
[33] Laynhapuy Homelands Association, ‘No future for Yolngu living on
homelands’ (Press Release, 21 May 2008). At http://stoptheintervention.org/facts/your-voice/laynhapuy-homelands-association (viewed 4 June 2009).
[34] Northern Territory Government, Working Future - Fresh ideas/real results:
Outstations/homelands policy - Headline Policy Statement
(2009). At http://www.workingfuture.nt.gov.au/download/Headline_Policy_Statement.pdf (viewed 4 June 2009).
[35] Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS)
in association with the Federation of Aboriginal and Torres Strait Islander
Languages (FATSIL), National Indigenous Languages Survey Report 2005 (2005), p 3. At http://www.arts.gov.au/__data/assets/pdf_file/0006/35637/NILS_Report_2005.pdf (viewed 4 June 2009).
[36] AIATSIS and FATSIL, above.
[37] UN Committee on Economic, Social and Cultural Rights, Concluding
Observations: Australia
(2009), note 4, para
33.
[38] See Hon John von Doussa
QC, Legal Protection of Cultural Artistic Works and Folklore in Australia (Presentation to the International Association for the Protection of
Intellectual Property and The Malaysia Bar Council’s Intellectual Property
Committee - Joint Conference, Kuala Lumpur, 1 September 2006). At http://www.humanrights.gov.au/about/media/speeches/speeches_president/2006/20060901_Malaysia.html (viewed 4 June 2009).
[39] AM
Fordham & RG Schwab, Summarising: Fordham (2007), Preliminary analyses of
access to education and discrete Indigenous communities in Australia, 2006
,
Centre for Aboriginal Economic Policy Research, Reference No 48 (2006), p 1. At http://www.anu.edu.au/caepr/educationfutures/ref048.pdf (viewed 1 June 2009).
[40] K
Storry, Tackling literacy in remote Aboriginal communities, Issue
Analysis No. 73, Centre for Independent Studies (2006). At http://users.tpg.com.au/dlynn/kirstenstorry/IA73 (viewed 1 June 2009).
[41] Steering Committee for the Review of Government Service Provision, Overcoming
Indigenous Disadvantage: Key Indicators 2007 Report
(2007), section 6. At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2007/keyindicators2007.pdf (viewed 4 June 2009).
[42] UN
Committee on Economic, Social and Cultural Rights, Concluding Observations:
Australia
(2009), note 4, para
31.
[43] Department of
Employment, Education and Training, Northern Territory Government, Indigenous
Languages and Culture in Northern Territory Schools Report 2004 –
2005
, pp 34 – 37. At http://www.det.nt.gov.au/education/indigenous_education/previous_publications/indigenous_languages_culture_report/indigenous_languages_culture_report.pdf (viewed 4 June 2009).
[44] Australian Bureau of Statistics, Prisoners in Australia (2008), p
3. At http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/F618C51B775B2CF7CA25751B0014A2D5/$File/45170_2008.pdf (viewed 1 June 2009).
[45] Australian Bureau of Statistics, above, p
6.
[46] Australian Institute of
Health and Welfare, Juvenile Justice in Australia 2006-2007 (2008). At http://www.aihw.gov.au/publications/juv/jjia06-07/jjia06-07.pdf (viewed 1 June 2009).
[47] UN
Committee against Torture, Concluding observations of the Committee against
Torture: Australia
, UN Doc CAT/C/AUS/CO/3 (2008). At http://www2.ohchr.org/english/bodies/cat/cats40.htm (viewed 4 June 2009)
[48]Crimes Amendment (Bail and Sentencing) Act 2006 (Cth).
[49]International
Covenant on Civil and Political Rights
(ICCPR), 1966, art 27, at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed 22 May 2009); UN Human Rights Committee, General Comment 23: The rights of minorities (Art 27), UN CCPR/C/21/Rev.1/Add.5 (1994), para
7, at http://www.unhchr.ch/tbs/doc.nsf/0/fb7fb12c2fb8bb21c12563ed004df111?Opendocument (viewed 4 June 2009). For further details, see Human Rights and Equal
Opportunity Commission, Senate Legal and Constitutional Affairs Committee on
the
Crimes Amendment (Bail And Sentencing) Bill 2006
(27 September 2006).
At: http://www.humanrights.gov.au/legal/submissions/crimes_amendment.html (viewed 4 June 2009).
[50]Convention on the Elimination of All Forms of Discrimination against
Women
(CEDAW), 1979. At http://www2.ohchr.org/english/law/cedaw.htm (viewed 29 May 2009).
[51]Convention on the Rights of the Child (CRC), 1989. At http://www.unhchr.ch/html/menu3/b/k2crc.htm (viewed 29 May 2009).
[52] See Sentencing Act 1995 (NT), ss 78BA,
78BB.
[53] Human Rights and Equal
Opportunity Commission, Bringing them home: National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from Their Families
(1997). At http://www.humanrights.gov.au/social_justice/bth_report/report/index.html (viewed 4 June 2009).
[54] Commonwealth, Parliamentary Debates, note 22, p
167.
[55] UN Human Rights
Committee, Concluding observations of the Human Rights Committee:
Australia
, UN Doc A/55/40 (2000). At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.55.40,paras.498-528.En?OpenDocument (viewed 2 June 2009).
[56] See
Human Rights and Equal Opportunity Commission, Submission to the Senate Legal
and Constitutional References and Legislation Committee Inquiry into Stolen
Wages
(1 August 2006), paras 13 - 24. At http://www.humanrights.gov.au/legal/submissions/stolen_wages_2006.html (viewed 4 June 2009).
[57] Senate
Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Unfinished Business: Indigenous Stolen Wages (2006). At http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/report/index.htm (viewed 4 June 2009).
[58]Native Title Act 1993 (Cth),
Preamble.
[59]Bodney v
Bennell
[2008] FCAFC 63, para 89 (Finn, Sundberg and Mansfrield JJ);
affirming Risk v Northern Territory of Australia [2006] FCA 404, para 97
(Mansfield J).
[60] See Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58,
paras 25 - 26, 44, 78 - 89 (Gleeson CJ, Gummow and Hayne JJ) for the High
Court’s comments on the Full Federal Court’s consideration of
‘traditional’, and for the level of adaptation of traditional law
and custom permitted. For commentary on the limitations of the Native Title Act
in recognising or allowing for revitalisation of culture, and limited adaptation
of cultural traditions, see Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2007 (2008), pp 178 - 181, at http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 4 June 2009) and Native Title Report 2008 (2009), pp 87 - 88, at http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/index.html (viewed 4 June 2009). See also Chief Justice RS French, Lifting the burden of
native title – some modest proposals for improvement
(Speech delivered
to the Native Title User Group, Adelaide, 9 July 2008). At http://www.fedcourt.gov.au/aboutct/judges_papers/speeches_frenchj35.rtf.
[61] The Native Title Act was
amended by the Native Title Amendment Act 2007 (Cth) and the Native
Title Amendment (Technical Amendments) Act 2007
(Cth). The Native Title
Amendment Bill 2009 was before Parliament at the time of writing.
[62] See Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2007,
note 60.
[63] National Native Title Tribunal, National Report: Native Title (2009). At http://www.nntt.gov.au/Applications-And-Determinations/Procedures-and-Guidelines/Documents/National%20Report%20Card%20-%20March%202009.pdf (viewed 4 June 2009).
[64] See
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007
, note 60.
[65]Northern Territory National Emergency Response Act 2007 (Cth), ss 51(1),
51(2).
[66] Australian Human
Rights Commission, Reports to the Minister under the Human Rights and Equal
Opportunity Commission Act 1986
(Cth). At http://www.humanrights.gov.au/legal/HREOCA_reports/index.html.
[67] Australian Human Rights
Commission, 2008 Immigration detention report: Summary of observations
following visits to Australia’s immigration detention facilities
(January 2009), at http://humanrights.gov.au/human_rights/immigration/idc2008.html (viewed 4 June 2009);
Human Rights and Equal Opportunity Commission, Summary of observations following the inspection of mainland immigration
detention facilities 2007
(December 2007), at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/summary_idc_report07.pdf;
Human Rights and Equal Opportunity Commission, Summary of observations
following the inspection of mainland immigration detention facilities 2006
(January 2007), at http://www.humanrights.gov.au/pdf/human_rights/HREOC_IDC_20070119.pdf (viewed 4 June 2009).
[68] See,
for example, Human Rights and Equal Opportunity Commission, Submission to the
Joint Standing Committee on Migration Inquiry into Immigration Detention in
Australia
(4 August 2008), at http://www.humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (viewed 4 June 2009).
[69] 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/report/PDF/alr_complete.pdf (viewed 2 June 2009); Human Rights and Equal Opportunity Commission, Those
who’ve come across the seas – Detention of unauthorised arrivals
(1998), at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf (viewed 2 June 2009).
[70] Australian Human Rights Commission, 2008 Immigration detention report,
note 67.
[71] Conclusion No 44 of the Executive Committee of the United Nations High
Commissioner for Refugees states that where the detention of asylum seekers is
deemed necessary, it should only be used to verify identity; to determine the
elements on which the claim to refugee status or asylum is based; to deal with
cases where refugees or asylum seekers have destroyed their travel and/or
identification documents in order to mislead the authorities of the State in
which they intend to claim asylum; or to protect national security or public
order. See United Nations High Commissioner for Refugees, Executive Committee, Conclusion No. 44 (XXXVII) - Detention of Refugees and Asylum Seekers (13
October 1986). At http://www.unhcr.org/refworld/docid/3ae68c43c0.html (viewed 4 June 2009).
[72] Human
Rights and Equal Opportunity Commission, A last resort?, note 69.
[73] ICCPR, note 49, art 9(1); CRC, note 51, art 37
(b).
[74] CRC, above, art
37(b).
[75] See, for example,
Human Rights and Equal Opportunity Commission, A last resort?, note 69, ch
9.
[76] C Evans, New
Directions in Detention – Restoring Integrity to Australia’s
Immigration System
(Speech delivered at the Centre for International and
Public Law Seminar, ANU, Canberra, 29 July 2008). At http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 4 June 2009).
[77] See,
for example, Human Rights and Equal Opportunity Commission, Commission
submission to Joint Standing Committee on Migration
, note 68, pp 13 -
15.
[78] UN Human Rights
Committee, A v Australia, Communication No 560/1993, UN Doc
CCPR/C/59/D/560/1993 (1997), at http://www.bayefsky.com/html/109_australiavws560.php (viewed 1 June 2009); UN Human Rights Committee, C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), at http://www.unhchr.ch/tbs/doc.nsf/0/f8755fbb0a55e15ac1256c7f002f17bd?Opendocument (viewed 2 June 2009); UN Human Rights Committee, Bakhtiyari v Australia,
Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003), at http://www.unhchr.ch/tbs/doc.nsf/0/8662db397d948638c1256de2003b3d6a?Opendocument (viewed 4 June 2009); UN Human Rights Committee, D & E v Australia,
Communication No 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (2006), at https://www1.umn.edu/humanrts/undocs/1050-2002.html (viewed 4 June 2009).
[79]Migration Act 1958 (Cth), s
46A.
[80]Migration Act
1958
(Cth), s 494AA.
[81]Convention Relating to the Status of Refugees, 1951. At http://www.unhchr.ch/html/menu3/b/o_c_ref.htm (viewed 5 June 2009).
[82] For
further details, see Australian Human Rights Commission, 2008 Immigration
detention report
, note 67, pp 70
- 79; Human Rights and Equal Opportunity Commission, Submission to Joint
Standing Committee on Migration
, note 68, pp 15 - 16; Human Rights and Equal
Opportunity Commission, Submission to the Senate Legal and Constitutional
Legislation Committee on the Migration Amendment (Designated Unauthorised
Arrivals) Bill 2006
(22 May 2006), at http://www.humanrights.gov.au/legal/submissions/migration20060522.html (viewed 4 June 2009)
[83] See
Human Rights and Equal Opportunity Commission, A last resort?, note 69, Recommendation 4, pp 877 - 880;
Australian Human Rights Commission, 2008 Immigration detention report, note 67, p 18; Australian Human
Rights Commission, Comments on Australia’s Compliance with the
Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment
(April 2008), at http://www.humanrights.gov.au/legal/submissions/2008/080415_torture.html (viewed 4 June 2009). In 2008, the UN Committee against Torture also recommended
that immigration detention standards be codified in legislation: Committee
against Torture, Concluding Observations: Australia, note 47.
[84] See Human Rights and Equal Opportunity Commission, Submission to Joint
Standing Committee on Migration
, note 68, pp 20 - 22; Australian Human Rights
Commission, Submission to the Senate Select Committee on Ministerial
Discretion in Migration
(2003), at http://www.humanrights.gov.au/legal/submissions/migration_matters.html (viewed 4 June 2009).
[85] See,
for example, Human Rights and Equal Opportunity Commission, Submission to the
Citizenship Taskforce on the discussion paper ‘Australian citizenship:
much more than just a ceremony’
(September 2006), at http://www.humanrights.gov.au/racial_discrimination/report/citizenship_paper_2006.html (viewed 4 June 2009); Human Rights and Equal Opportunity Commission, Submission to the Legal and Constitutional Affairs Committee on the
Australian Citizenship Amendment (Citizenship Testing Bill) 2007
(6 July
2007), at http://www.humanrights.gov.au/legal/submissions/2007/aust_citizenship_amendment.html (viewed 4 June 2009).
[86] This
is consistent with the UN High Commissioner for Human Rights, Recommended
Principles and Guidelines on Human Rights and Human Trafficking, Report of the
High Commissioner for Human Rights to the Economic and Social Council
, UN
Doc E/2002/68/Add.1 (2002). At http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/caf3deb2b05d4f35c1256bf30051a003?opendocument (viewed 4 June 2009). See further E Broderick, Slavery in the 21st Century: A Human Rights Challenge (Speech delivered at the Australian Human
Rights Commission, Sydney, 16 October 2008). At http://www.humanrights.gov.au/about/media/speeches/sex_discrim/2008/20081014_slavery.html (viewed 4 June 2009).
[87] UN
Human Rights Committee, Concluding Observations: Australia (2009), note 9, para
22.
[88] Australian National
Audit Office, Management of the Australian Government’s Action Plan to
Eradicate Trafficking in Persons,
Report No 30 (2008-2009), para 2.10. At http://www.anao.gov.au/director/publications/auditreports/2008-2009.cfm?pageNumber=3 (viewed 4 June 2009).
[89] The
award was made under the Victims Support and Rehabilitation Act 1996 (NSW) in response to a claim for compensation for sexual assault by a Thai
woman who was trafficked to Australia in 1995 when she was 13: N Craig,
‘Sex slave victim wins abuse claim’, The Age, 29 May 2007. At http://www.theage.com.au/news/national/sex-slave-victim-wins-abuse-claim/2007/05/28/1180205160434.html (viewed 4 June 2009).
[90] These
could include establishing a federal compensation scheme for victims of crime;
exploring the potential of the Proceeds of Crime Act 2002 (Cth) to
enable the forfeiture of an offender’s assets to provide compensation to
victims and pursuing reparations orders under the Crimes Act 1914 (Cth); and improving the access of trafficked people to information and
legal advice about their existing avenues for making compensation claims,
including claims for the recovery of unpaid wages.
[91] Australian Government
National Roundtable on People Trafficking, ‘Statement of Outcomes’
(23 October 2008). At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(C7C220BBE2D77410637AB17935C2BD2E)~TraffickingRoundtableOnPeopleTrafficking-StatementofOutcomes-October2008.doc/$file/TraffickingRoundtableOnPeopleTrafficking-StatementofOutcomes-October2008.doc.
See further Australian Institute of Criminology, Labour Trafficking: key
concepts and issues
, Transnational Crime Brief, No. 3 (2009). At http://www.aic.gov.au/publications/tcb/tcb003.html (viewed 4 June 2009).
[92] ICCPR,
note 49, art
9(1).
[93] ICCPR, above, art
9(4).
[94]Crimes Act 1914 (Cth), pt IC, div 2.
[95]Crimes Act 1914 (Cth), s
23CA(4)(b).
[96]Crimes Act
1914
(Cth), s 23DA(7).
[97]Crimes Act 1914 (Cth), s
23CA(8).
[98]Crimes Act
1914
(Cth), s
23CA(8)(m).
[99]Crimes Act
1914
(Cth), s
23CA(8)(m).
[100]Australian
Security Intelligence Organisation Act 1979
(Cth), pt III, div 3.
[101]Australian Security
Intelligence Organisation Act 1979
(Cth), s
34G(4).
[102]Australian
Security Intelligence Organisation Act 1979
(Cth), s
34ZS.
[103] See Human Rights
and Equal Opportunity Commission, Submission to the Security Legislation
Review Committee
(January 2006), at http://www.humanrights.gov.au/legal/submissions/security_legislation_review.html (viewed 4 June 2009); Human Rights and Equal Opportunity Commission, Submission to the Clarke Inquiry on the case of Dr Mohamed Haneef (May
2008), at http://www.humanrights.gov.au/legal/submissions/2008/200805_haneef.html (viewed 4 June 2009).
[104]Inquiry by the Hon. John Clarke QC into the case of Dr Mohamed Haneef (November 2008), Recommendation 4 at http://www.haneefcaseinquiry.gov.au (viewed 4 June 2009); Parliamentary Joint Committee on Intelligence and
Security, Parliament of Australia, Inquiry into the proscription of
‘terrorist organisations’ under the Australian Criminal
Code
(2007), Recommendation 7(b), at http://www.aph.gov.au/House/committee/pjcis/proscription/report/front.pdf (viewed 4 June 2009); Parliamentary Joint Committee on Intelligence and
Security, Parliament of Australia, Review of Security and Counter Terrorism
Legislation
(December 2006), Recommendation 2, at http://www.aph.gov.au/house/committee/pjcis/securityleg/report.htm (viewed 4 June 2009); Security Legislation Review Committee, Parliament of
Australia, Report of the Security Legislation Review Committee (2006),
para 18.2, at http://www.ag.gov.au/www/agd/agd.nsf/Page/National_securityReviewsSecurity_Legislation_Review_Committee (viewed 4 June 2009).
[105] The Hon R McClelland, Statement on the tabling of the Government’s
response to reviews of national security legislation and the public report of
the Inquiry by the Hon. John Clarke QC into the case of Dr Mohamed Haneef
(23 December 2008), paras 16 - 18. At http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/50GS6/upload_binary/50gs60.pdf;fileType=application/pdf (viewed 4 June 2009).
[106] Parliamentary Joint Committee on Intelligence and Security, Inquiry into the
proscription of ‘terrorist organisations’
, note 104, Recommendation 7(b); Parliamentary
Joint Committee on Intelligence and Security, Review of Security and Counter
Terrorism Legislation,
note 104,
p 21. The Review of Security and Counter Terrorism Legislation supported
many of the recommendations of the earlier report.
[107] Parliamentary Joint
Committee on Intelligence and Security, Review of Security and Counter
Terrorism Legislation
, note 104,
pp 23 – 38.
[108] See,
for example, reports by Australian Muslim Civil Rights Advocacy Network,
available at: http://www.amcran.org (viewed
4 June 2009).
[109] Human
Rights and Equal Opportunity Commission, Ismaع–Listen: National
consultations on eliminating prejudice against Arab and Muslim Australians,
2004. At http://www.humanrights.gov.au/racial_discrimination/isma/index.html (viewed 5 June 2009).
[110] Security Legislation Review Committee, note 104, p
12.
[111] Parliamentary Joint
Committee on Intelligence and Security, Review of Security and Counter
Terrorism Legislation
, note 104,
para 3.3.
[112] Parliamentary
Joint Committee on Intelligence and Security, above, para
3.5.
[113] Parliamentary Joint
Committee on Intelligence and Security, above; Security Legislation Review
Committee, note 104.
[114] Australian Human Rights
Commission, Muslim and Community Partnerships, http://www.humanrights.gov.au/partnerships/about.html (viewed 4 June 2009).
[115] Human Rights and Equal Opportunity Commission, Gender Equality: What matters
for Australian women and men
(2008). At http://www.humanrights.gov.au/sex_discrimination/listeningtour/index.html (viewed 4 June 2009).
[116] Human Rights and Equal Opportunity Commission, above, p 20.
[117] See Human Rights and
Equal Opportunity Commission, Submission to the Senate Standing Committee on
Legal and Constitutional Affairs on the Inquiry into the Effectiveness of the
Sex Discrimination Act 1984 (Cth) in Eliminating Discrimination and Promoting
Gender Equality
(1 September 2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 7 June 2009).
[118] Human Rights and Equal Opportunity Commission,
above.
[119] See Senate
Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating
discrimination and promoting gender equality
(2008). At http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm (viewed 7 June 2009).
[120]Maternity Protection Convention, 2000 (No 183). At http://www.ilo.org/ilolex/cgi-lex/convde.pl?C183 (viewed 9 June 2009).
[121] See
Human Rights and Equal Opportunity Commission, Submission (No 1) to the
Productivity Commission’s Inquiry into Paid Maternity, Paternity and
Parental Leave
(2 June 2008), at http://humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 4 June 2009); Human Rights and Equal Opportunity Commission, Submission (No 2) to the Productivity Commission’s Inquiry into Paid
Maternity, Paternity and Parental Leave
(24 November 2008), at http://humanrights.gov.au/legal/submissions/2008/20081124_maternity.html (viewed 4 June 2009).
[122] Publications from the Commission’s two-year Women, Men, Work and Family
project are available at http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 4 June 2009).
[123] Australian Human Rights Commission, Submission to the Australian Government
Department of Education, Employment and Workplace Relations on the Discussion
Paper National Employment Standards Exposure Draft
(4 April 2008). At http://humanrights.gov.au/legal/submissions/2008/20080404_deewr.html (viewed 4 June 2009).
[124] See
Human Rights and Equal Opportunity Commission, Submission to the Inquiry into
the Effectiveness of the
Sex Discrimination Act 1984, note 117,
recommendations.
[125] Human
Rights and Equal Opportunity Commission, above.
[126] R Clare, Retirement
Savings Update
(2008), p 3. At http://www.superannuation.asn.au/Reports/default.aspx (viewed 4 June 2009).
[127] The
poverty measurement tool for this study is 50% of the median income poverty
line. B Heady & D Warren, Families, Incomes and Jobs, Volume 3: A
Statistical Report on Waves 1 to 5 of the HILDA Survey
(2008), p 55. At http://www.melbourneinstitute.com/hilda/statreport/statreport-v3-2008.pdf (viewed 4 June 2009).
[128] R
Tanton et al, Old Single and Poor: Using Microsimulation and Microdata to
Analyse Poverty and the Impact of Policy Change Among Older Australians
(2008), p 15. At https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880 (viewed 4 June 2009).
[129] Australian Human Rights Commission, Submission to Australia’s Future
Tax System (Retirement Income System)
(27 February 2009). At http://www.humanrights.gov.au/legal/submissions/2009/20090227_tax.html (viewed 4 June 2009).
[130] Senate Committee on Legal and Constitutional Affairs, Effectiveness of the
Sex Discrimination Act 1984
, note 119.
[131] Australian Bureau of
Statistics, Average Weekly Earnings, August 2008, Cat no. 6302.0 (2008).
At http://www.abs.gov.au/ausstats/abs@.nsf/mf/6302.0/ (viewed
4 June 2009).
[132] Human
Rights and Equal Opportunity Commission, Sexual harassment: Serious business,
Results of the 2008 Sexual Harassment National Telephone Survey
(2008). At http://www.humanrights.gov.au/sexualharassment/serious_business/index.html (viewed 4 June 2009).
[133] Human Rights and Equal Opportunity Commission, Submission to the Inquiry into
the Effectiveness of the
Sex Discrimination Act 1984, note 117.
[134] J Mouzos and T Makkai, Women’s Experiences of Male Violence: Findings
from the Australian Component of the International Violence Against Women Survey
(IVAWS)
(2004), p 3. At http://www.aic.gov.au/publications/rpp/56/RPP56.pdf (viewed 4 June 2009).
[135] Australian Bureau of Statistics, Personal Safety Survey (Reissue) (2005),
p 11. At http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/056A404DAA576AE6CA2571D00080E985/$File/49060_2005%20(reissue).pdf (viewed 4 June 2009).
[136] VicHealth, The Health Costs of Violence: Measuring the burden of disease
caused by intimate partner violence
(2004), p 11. At http://www.vichealth.vic.gov.au/~/media/ProgramsandProjects/MentalHealthandWellBeing/DiscriminationandViolence/IntimatePartnerViolence/ipv.ashx (viewed 4 June 2009).
[137] Australian Institute of Health and Welfare, Homeless
people in SAAP: SAAP National Data Collection annual report 2006-07
Australia
(2008), p 35. At http://www.aihw.gov.au/publications/index.cfm/title/10523 (viewed 4 June 2009).
[138] Women With Disabilities Australia, Forgotten Sisters: A Global Review of
Violence against Women with Disabilities
(2007).
[139] CEDAW, note 50, art 2; United Nations Fourth World
Conference for Women, Beijing Platform for Action (1995), section h. At www.un.org/womenwatch/daw/beijing/platform/institu.htm (viewed 4 June 2009).
[140] Australian Human Rights Commission, Submission to the Review Panel on
Australia's Future Tax System
, note 129, recommendation 15.
[141] Senate Standing
Committee on Legal and Constitutional Affairs, Effectiveness of the Sex
Discrimination Act
, note 119,
recommendation 33.
[142] Senate Standing Committee on Legal and Constitutional Affairs, above,
recommendation 33.
[143] ICCPR,
note 49, arts 2, 12, 18,
19.
[144] See further Human
Rights and Equal Opportunity Commission, Report of initial consultation of
the Sex and Gender Diversity Project
(July 2008). At http://www.humanrights.gov.au/genderdiversity/consultation_report2008.html (viewed 4 June 2009).
[145] Australian Human Rights Commission, Sex Files: the legal recognition of sex
in documents and government records
, Concluding Paper of the sex and gender
diversity project (2009), at http://humanrights.gov.au/genderdiversity/sex_files2009.html (viewed 1 June 2009).
[146] The
Commission’s views on the role of a National Disability Strategy in
implementing the Disability Convention are set out in full in: Australian Human
Rights Commission, National Disability Strategy: Australian Human Rights
Commission Submission
(November 2008). At http://www.humanrights.gov.au/disability_rights/commonwealth/NDS.htm
[147] See, for example, Human
Rights and Equal Opportunity Commission, Submission to the Joint Standing
Committee on Electoral Matters Inquiry into the 2007 federal election
(15
May 2008). At http://www.aph.gov.au/house/committee/em/elect07/subs/sub097.pdf (viewed 4 June 2009).
[148] Joint Standing Committee on Electoral Matters, Report on the 2007 federal
election electronic voting trials, 16 March 2009. At Report on the 2007 federal
election electronic voting trials (viewed 11 June 2009).

[149] In 2006, the Australian Government passed legislation which excluded all people serving a sentence of imprisonment, of any length, from voting. The High Court later found that these amendments were constitutionally invalid: Roach v Electoral Commissioner (2007) 233 CLR 162.

[150] UN Human Rights Committee, General Comment No. 25: The right to participate
in public affairs, voting rights and the right of equal access to public service
(Art. 25)
, UN Doc CCPR/C/21/Rev.1/Add.7 (1996), para 14. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/d0b7f023e8d6d9898025651e004bc0eb?Opendocument (viewed 4 June 2009).