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Review of Australia’s Fourth Periodic Report on the Implementation of the International Covenant on Economic Social and Cultural Rights

Legal Legal
Friday 14 December, 2012

Review of Australia’s Fourth Periodic Report on the Implementation of
the International Covenant on Economic Social and Cultural Rights

Australian Human Rights Commission
Submission to the United Nations Committee on Economic Social and Cultural
Rights

17 April 2009


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Table of Contents


1 Introduction

  1. The Australian Human Rights and Commission (the Commission) makes this
    submission to the United Nations Committee on Economic Social and Cultural
    Rights (the Committee) for its Review of Australia’s Fourth Periodic
    Report on the implementation of the International Covenant on Economic Social
    and Cultural Rights (the Covenant/ ICESCR).[1]

2 Summary

  1. The Commission aims to provide the Committee with information on a number of
    key issues that the Commission believes may be relevant to its consideration of
    Australia’s implementation of the Covenant. The Commission does not intend
    to provide a complete assessment of Australia’s compliance with the
    Covenant, due to lack of available resources and competing domestic priorities
    at this time.
  2. The Commission’s comments reiterate some of its previous comments on a
    draft of the Common Core Document, which were provided to the Australian
    Government in February 2007.
  3. As expressed to the Australian Government in 2007, the Commission believes
    that the Common Core Document provides an incomplete picture of human rights
    compliance in Australia. In particular, the Common Core Document does not
    acknowledge the limitations of the current legal framework for human rights
    protection and fails to identify and explain significant human rights issues.
  4. The Commission notes the Human Rights Committee’s recent comments to
    this effect noting that ‘the fifth periodic report of Australia does not
    meet the requirements of article 40 of the Covenant regarding the provision of
    sufficient and adequate information on the measures adopted to give effect to
    the Covenant rights, as well as on the progress made in the enjoyment of those
    rights’.[2]

3 Recommendations

The Australian Human Rights Commission recommends that:

Recommendation 1: The Australian Government sign and ratify the
Optional Protocol to the International Covenant on Economic Social and Cultural
Rights

Recommendation 2: The Australian Government pass a federal Human
Rights Act that includes recognition and protection of economic, social and
cultural rights.

Recommendation 3: The Australian Government introduce federal
legislation to prohibit discrimination on the grounds of sexuality, sex identity
and gender identity.

Recommendation 4: The Australian Government adopt the
Commission’s proposals in relation to the development of the new National Plan of Action to Reduce Violence against Women and their
Children
.

Recommendation 5: Asylum seekers released from immigration detention
and those living in the community be granted work rights and access to Medicare.
Those who are unable to work be granted access to financial and medical
assistance.

Recommendation 6: The Australian Government take further action
to address sexual harassment in Australia, including implementation of the
Commission’s proposals contained in its 2008 National Telephone Survey and
Submission to the Senate Inquiry into the Effectiveness of the Sex
Discrimination Act 1984
(Cth).

Recommendation 7: The Australian Government introduce a national
statutory scheme of paid parental leave, including paid maternity leave.

Recommendation 8: The Australian Government take further action to
close the gender pay gap in Australia, including implementation of the
Commission’s proposals to the House of Representatives Inquiry into Pay
Equity
.

Recommendation 9: Australia’s mandatory detention law be
repealed.

Recommendation 10: The Migration Act be amended so that immigration
detention occurs only when necessary. Detention should be the exception, not the
norm. It 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. These
limited grounds for detention should be clearly prescribed in the Migration Act.

Recommendation 11: The Migration Act be amended so that the decision
to detain a person is subject to prompt review by a court, in accordance with
international law.

Recommendation 12: The Migration Act be amended to include periodic
independent reviews of the ongoing need to detain an individual, and a maximum
time limit for detention.

Recommendation 13: Only detain children as a measure of last resort
and for the shortest appropriate period of time.

Recommendation 14: The Australian Government audit populations and
projected populations of remote preschool and school-aged children and assess
whether the existing education infrastructure and services meets the needs of
remote Indigenous populations. Where the school provision does not meet
population needs, the government develop a national, funded plan to upgrade or
build quality preschool, primary and secondary school infrastructure where
populations warrant them.

4 Framework
for human rights protection

4.1 Formal protection for economic, social and
cultural rights

Summary of issue:

Under Australian law, a treaty only becomes a source of individual rights and
obligations when it is directly incorporated by legislation. Many of the
international human rights standards agreed to by the Australian Government,
including this Covenant, have not been fully incorporated into Australian law.
Individuals who experience human rights violations are often left without legal
remedies.

The federal Government has appointed an independent committee to undertake a
National Human Rights Consultation (Consultation). The committee is seeking the
views of all people in Australia on human rights protections. The Australian
Human Rights Commission will make a submission to the Consultation. In
particular, the Commission supports a Human Rights Act for Australia. A Human
Rights Act should contain economic, social and cultural rights.

Relevance to Covenant: Article 2

a) Australian Human Rights Commission

The Australian Human Rights Commission administers the Human Rights and
Equal Opportunity Commission Act
1986 (Cth) (HREOC Act). Under the
HREOC Act, the Commission is responsible for protecting and promoting human
rights, including through the exercise of the following functions:

  • inquiring into acts or practices by the Commonwealth which may be
    inconsistent with human rights
  • promoting an understanding and acceptance of human rights in Australia
  • undertaking research to promote human rights
  • examining enactments that may be inconsistent with human rights
  • advising the federal Attorney-General on laws and actions that are required
    to comply with our international human rights obligations.

The
Commission’s inquiry and examination of enactment functions may be
exercised on the Commission’s own motion. The Commission is also required
to exercise its inquiry function upon receipt of a written complaint. However,
those functions are limited by the definition of ‘human rights’ in s
3 of the HREOC Act, which includes those rights set out in the instruments
scheduled to the HREOC Act and other designated ‘relevant international
instruments’.

ICESCR is not scheduled to the HREOC Act and has not been declared
to be a ‘relevant international instrument’.
Therefore the
rights under ICESCR may not be the subject of a complaint or a self initiated
inquiry or examination of enactment conducted by the Commission, except to the
extent that those rights are also incorporated in other treaties within the
Commission’s statutory mandate. One treaty reflecting many of the rights
in ICESCR is the Convention on the Rights of the Child (CRC), which has been
designated as a ‘relevant international instrument’ for the purposes
of s 3 of the HREOC Act.

Under the HREOC Act, the Commission’s jurisdiction is also limited to
examining Commonwealth legislation and inquiring into acts by, or on behalf of,
the Commonwealth government. It does not have jurisdiction to directly
scrutinise the activities of State governments which are responsible for much of
the delivery of the economic, social and cultural rights protected under ICESCR.

If the Commission does find a breach of human rights, it is required to
report its findings to the Attorney-General (who must table the report in the
Commonwealth Parliament) and may make recommendations for action to be taken by
way of remedy (including financial compensation). However, the
Commission’s recommendations are not enforceable.

The functions of the Aboriginal and Torres Strait Islander Social Justice
Commissioner, as set out in section 46C of the HREOC Act, require the
Commissioner to report annually to the federal Parliament on the status and
enjoyment of human rights of Indigenous peoples; to promote awareness and
discussion of Indigenous human rights; examine enactments and proposed
enactments for compliance with Indigenous human rights; and conduct educational
activities. In exercising those functions, the Commissioner is specifically
required to have regard to ICESCR. The Commissioner is also empowered to obtain
information from state and territory government agencies.

The Commission notes that there is no other Australian independent review
body that has the specific jurisdiction to implement the Covenant.

The Commission further notes that the Committee’s Concluding
Observations in 2000 which recommended that ‘the State party incorporate
the Covenant in its legislation, in order to ensure the applicability of the
provisions of the Covenant in the domestic
courts’[3] remain largely
unimplemented.

b) Optional Protocol to the Covenant

The Commission welcomes the adoption by the General Assembly on 10 December
2008 of an Optional Protocol to the Covenant (GA resolution A/RES/63/117) which
provides the Committee competence to receive and consider individual
communications. The General Assembly took note of the adoption by the Human
Rights Council by its resolution 8/2 of 18 June 2008, of the Optional Protocol.
The Optional Protocol will be opened for signature at a signing ceremony in
2009.

The signature and ratification of the Optional Protocol is consistent with
the Federal Government’s commitment to improve mechanisms for human rights
protection in Australia.

The Optional Protocol is an important means of enabling individuals who have
exhausted all domestic remedies to lodge an individual communication with the
Committee to complain about a human rights violation.

The availability of this international remedy would enable Australians to
obtain recognition if their human rights have been violated. It would also
enable the Committee to provide guidance to the Federal Government as to the
specific action that should be taken to address the violation for any person
concerned.

The views of the Committee arising out of an individual communication under
the Optional Protocol would also assist the Federal Government to identify areas
where current domestic laws, policies, programmes or practices remain inadequate
to implement the Covenant obligations. In this way, the international review of
Australia’s domestic implementation of the Covenant would make a positive
contribution to promoting human rights in Australia.

The Commission recommends the Australian government sign and ratify the
optional protocol to the International Covenant on Economic Social and Cultural
Rights [Recommendation 1].

c) National Human Rights Consultation

On 10 December 2008, the Australian Government announced a National Human
Rights Consultation. An independent Committee has been appointed to undertake
the Consultation. The Committee is expected to report to the Australian
Government by 31 August 2009. The Committee is asking for submissions from the
public, and is holding a series of ‘community roundtables’ across
Australia (including in regional and remote areas). The Committee is asking the
Australian community three questions:

  • Which human rights (including corresponding responsibilities) should be
    protected and promoted?
  • Are these human rights currently sufficiently protected and promoted?
  • How could Australia better protect and promote human rights?

The
terms of reference of the National Human Rights Consultation exclude
consideration of ‘a constitutionally entrenched bill of rights’.
Full details about the National Human Rights Consultation can be found at www.humanrightsconsultation.gov.au.

The Australian Human Rights Commission strongly welcomes the Australian
Government’s National Human Rights Consultation. The Commission considers
this a unique opportunity to improve the protection of human rights in
Australia. The Commission will make a submission to the Committee in support of
a Human Rights Act, drawing on the Commission’s extensive work over many
years highlighting gaps in human rights protections.

The Commission has a range of materials to support participation in the
Government’s National Human Rights Consultation available on its website
at http://humanrights.gov.au/letstalkaboutrights/index.html.

d) Human Rights Act

The Australian Human Rights Commission supports the introduction of a federal
charter of rights (a Human Rights Act), as a statutory framework for protecting
human rights in Australia.

The Commission believes that a Human Rights Act created in consultation with
the Australian community could foster a human rights culture in Australian
government and society by:

  • making human rights an integral part of public decision-making, including
    law-making and policy-setting processes
  • requiring courts to interpret laws consistently with human rights where
    possible, and to identify laws which do not comply with human rights
  • providing accessible, appropriate and enforceable remedies for human rights
    breaches.

A Human Rights Act should hold the Australian government
accountable to its international human rights obligations. It should fill gaps
in Australia’s current system of human rights protection. In particular,
the Commission believes that a Human Rights Act should include economic, social
and cultural rights.

The Commission recommends the Australian Government pass a federal Human
Rights Act that includes recognition and protection of economic, social and
cultural rights [Recommendation 2].

5 Protection against Discrimination

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

Summary of issue:

The Australian Human Rights Commission has welcomed the Australian
Government’s recent amendments to 84 laws which discriminate against
same-sex couples and their children. The amendments follow the
Commission’s 2007 Same-Sex: Same Entitlements Inquiry, which recommended
amending laws which discriminate against same-sex couples and their children in
the area of financial and work-related entitlements and benefits.

However, there remains inadequate protection in Australia against
discrimination on the grounds of sexuality. Whereas all state and territory
anti-discrimination laws provide protection against discrimination on these
grounds, there is still no federal law specifically prohibiting discrimination
on the grounds of sexuality. While the Commission may investigate a complaint of
discrimination in employment on the grounds of sexual orientation, any
recommendations for remedies made by the Commission are not enforceable.

Further, there is inconsistent protection from discrimination on the basis of
sex identity and gender identity across Australia. At the federal level, the
Commission may investigate complaints of human rights breaches based on sex or
gender identity but these protections are limited and any recommendations for
remedies made by the Commission are not enforceable.

Relevance to Covenant: Article 2

a) Amendment of laws which discriminate against
same-sex couples

In 2006, the Commission conducted a National Inquiry into discrimination
against people in same-sex relationships in the area of financial and
work-related entitlements and benefits (Same-Sex: Same Entitlements Inquiry).
The final report, Same-Sex: Same Entitlements – National Inquiry into
Discrimination against People in Same-Sex Relationships: Financial and
Work-Related Entitlements and Benefits
, found that more than 58 laws
discriminate against people in same-sex relationships and their children in this
way.[4] These laws breach the right to
non-discrimination and equality before the law.

At the end of 2008 the Australian Parliament passed the two remaining bills
to remove discrimination against same-sex couples in most Commonwealth laws. The
Australian Government has now amended 84 discriminatory laws. The Commission
welcomes the reforms, which are a significant step to equality for same-sex
couples.

b) Inadequate protection from discrimination on the
basis of sexuality, sex identity and gender identity

Despite the above amendments to remove discriminatory provisions of
employment-related federal laws, the Commission submits that there remains
insufficient protection against discrimination experienced by gay, lesbian,
bisexual, transgender and intersex people.

There is still 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 for remedies
made by the Commission are not enforceable. In addition, same-sex couples in
Australia do not enjoy equality of rights regarding relationship recognition,
including civil marriage rights.

In the Same-Sex: Same Entitlements Inquiry, the Commission received a number
of submissions about the absence of federal anti-discrimination laws protecting
against discrimination on the basis of sexual
orientation.[5] It also heard directly
from people who had experienced homophobia, and others who had experienced
discrimination on the grounds of sex identity or gender identity.

In 2008, the Commission also conducted a project on the human rights concerns
of people who are sex and gender diverse. The project concentrated on the legal
recognition of sex identity in government
documents.[6] However, during the
course of the project consultations, discrimination in employment on the grounds
of sex identity and gender identity was raised as a human rights issue.

The Commission recommends the introduction of federal legislation to protect
against discrimination on the grounds of sexuality, sex identity and gender
identity.

Federal anti-discrimination legislation would not only provide a legal remedy
for discrimination, it would send a strong message to the community as a whole
that gay, lesbian, bisexual, transgender and intersex people are entitled to the
same rights as any other person.

The Commission recommends the Australian Government introduce federal
legislation to prohibit discrimination on the grounds of sexuality, sex identity
and gender identity [Recommendation 3].

5.2 Racial Discrimination under the Northern Territory Emergency
Response

Summary of issue:

The Commission notes with concern that the application of the Race
Discrimination Act 1975
(Cth) (Race Discrimination Act) continues to
be suspended in relation to the Northern Territory Emergency Response (NTER), an
intervention strategy introduced by the Australian Government in 2007 to protect
Aboriginal children in the Northern Territory from sexual abuse and family
violence.[7]

Relevance to Covenant: Articles 2, 11-14

Indigenous disadvantage is an indicator of the discrimination and inequality
faced by Aboriginal people.[8] Aboriginal and Torres Strait Islander people continue to experience significant
inequalities in the realisation of their economic, social and cultural rights.
This includes lower life expectancy, 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.

The Commission notes with concern that the application of the Race
Discrimination Act continues to be suspended in relation to the NTER, an
intervention strategy introduced by the Australian Government in 2007 to protect
Aboriginal children in the Northern Territory from sexual abuse and family
violence.[9]

The legislation enacted for the NTER declares itself, and any acts done
pursuant to it, to be a special measure for the purposes of the Race
Discrimination Act and exempt from the operation of Part II of the Race
Discrimination Act. It also declares that, where relevant, it is exempt from
Northern Territory and Queensland anti-discrimination
legislation.[10]

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

  • the Government has an obligation to promote and protect the right of
    Indigenous peoples to be free from family violence and child abuse.
  • the NTER legislation is inappropriately classified as a ‘special
    measure’ under the Race Discrimination Act because of the negative impacts
    of some of the measures on Indigenous peoples and the absence of adequate
    consultation or consent by Indigenous peoples to the measures.
  • the NTER legislation contains a number of provisions that are racially
    discriminatory.
  • some provisions raised concerns for the compliance with human rights
    obligations (e.g. the lack of access to review of social security matters and
    the compulsory acquisition of land without just
    compensation).[11]

While
the Commissioner highlighted the importance of government addressing family
violence and child abuse in Indigenous communities, he noted the need for this
to be done through measures that are not racially discriminatory.

The Commissioner recommended a ten point plan be implemented to address the
lack of compliance of the NTER with Australia’s human rights obligations.
The ten point plan sets out how to:

  • remove formal discrimination under the NTER legislation
  • ensure that schemes for income management and alcohol control are undertaken
    in a manner that is consistent with the Race Discrimination Act and that qualify
    as a ‘special measure’
  • transition from a crisis or emergency approach to a community development
    approach through ensuring participatory processes, the creation of community
    development plans and rigorous participatory based monitoring and
    reviews.

The Northern Territory Emergency Response Review Board was
supportive of such recommendations, and recommended that the Government respect
Australia’s human rights obligations and conform with the Race
Discrimination Act.

The ease with which the obligations under the Race Discrimination Act have
been set aside highlights the weak status of protections against race
discrimination in the Australian legal system. Underlying this weakness is the
absence of any constitutional protection against race discrimination and the
absence of a federal charter of rights.

The UN Committee on the Elimination of Racial Discrimination, in response to
an Early Warning and Urgent Action Procedure submitted in relation to the NTER,
has the asked the State party to submit further details and information on the
following issues no later than 31 July 2009:

  • Progress on the drafting of the redesigned measures, in direct consultation
    with the communities and individuals affected by the NTER, bearing in mind their
    proposed introduction to the Parliament in September 2009.
  • Progress on the lifting of the suspension of the Race Discrimination
    Act.

The UN Human Rights Committee has similarly noted in its recent
review its concerns at the negative impact of the NTER measures, the suspension
of the operation of the Racial Discrimination Act 1975 and the lack of
adequate consultation with Indigenous peoples. The Human Rights Committee
recommended the NTER measures be redesigned in consultation with the Indigenous
peoples concerned, to ensure that they are consistent with the Race
Discrimination Act and the International Covenant on Civil and Political
Rights.[12]

5.3 Gender-based violence

Summary of issue
Gender-based violence continues to be a serious
problem in Australia. Experiences of violence limit the capacity of women to
equally enjoy their economic, social and cultural rights. Since November 2007,
the Australian Government has introduced a number of initiatives to address
gender-based violence in Australia. The Commission has commended these
developments. However, the Commission has recommended that programs to address
violence against women and children should reflect human rights principles.
Relevance to Covenant: Articles 2(2), 3, 11 and 12

As many as one in three Australian women are affected by domestic and family
violence.[13] Further, nearly one in
five Australian women has experienced sexual violence since the age of
15.[14] 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.[15] Further, domestic
violence is the most common reason cited by individuals seeking assistance with
Australian housing services.[16]

During her national Listening Tour, the Sex Discrimination
Commissioner consistently heard from women about the ongoing impact of violence
and concerns about the shortage of appropriate services. Indigenous women, women
with disability and culturally and linguistically diverse women reported to the
Commissioner that there was a lack of appropriate and accessible services to
meet their specific needs.[17]

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 Council was directed to develop a 12
year National Plan to Reduce Violence Against Women and Children (the
National Plan).

The submissions and consultations to inform the development of the National
Plan highlighted a number of issues including the need for:

  • improving support and services for those effected by domestic violence and
    sexual assault
  • improving the legal system so that perpetrators are held to account
  • increasing primary prevention efforts so that more children and young people
    are educated about respectful relationships
  • increasing research and setting targets so that Australia can track its
    progress.[18]

The Commission has commended these developments, while making the
following recommendations to the Australian
Government[19]:

  • The Minister on the Status of Women should ensure that there is
    representation from the perspective of women with disability on the National
    Council.
  • The development, implementation and evaluation of the National Plan should
    reflect key human rights principles. The National Plan should include
    participatory decision-making processes; strategies to ensure
    non-discrimination; strong data collection and evaluation mechanisms; and
    independent monitoring and accountability mechanisms to assess the progress and
    implementation of the Plan.
  • The National Plan should include a comprehensive definition of violence that
    includes the range of behaviours that occur in private or public life resulting
    in physical, sexual, emotional or psychological harm. It should include
    strategies to address violence in all its forms, including sexual harassment,
    trafficking in women and children, race-based violence and reproductive violence
    such as forced and non-therapeutic
    sterilisation.[20]

The Commission recommends that the Australian Government adopt
the Commission’s proposals in relation to the development of the new National Plan of Action to Reduce Violence against Women and their
Children
[Recommendation 4]

6 Rights to work and welfare

6.1 Limited work rights, social security or
health care for asylum seekers on bridging visas

Summary of issue:

Restrictive conditions attached to some bridging visas in Australia have had
a significant impact on the ability of some asylum seekers and refugees to
exercise their basic human rights, including the right to work, the right to
social security, the right to an adequate standard of living and the right to
the highest attainable standard of health.

The Commission understands that the Department of Immigration and Citizenship
has indicated it will introduce some policy reforms in this area.

Relevance to Covenant: Articles 6, 9, 11 and 12

a) The impact on asylum seekers of restrictive
conditions attached to some bridging visas

A bridging visa is a temporary visa granted to people who are in the process
of applying for a longer-term visa or making arrangements to leave Australia.
Bridging visas are granted for many purposes, including to asylum seekers who
are seeking refugee status in Australia.

Bridging visas come with various conditions and restrictions, depending on
the class of the visa and the circumstances of the visa holder. These conditions
and restrictions may relate to

  • Permission to Work: Bridging visas may be subject to work
    restrictions, which prohibit the visa holder from working in Australia. This
    also means they are unable to do voluntary work or study. In cases of severe
    financial hardship, a visa holder may seek permission to work.
  • Social security: Bridging visa holders cannot access social security
    benefits (while some visa holders may be entitled to access financial and
    medical assistance through the Asylum Seeker Assistance Scheme (ASAS), many
    asylum seekers do not meet the eligibility criteria).
  • Health care: Bridging visa holders who are not allowed to work are
    also ineligible for healthcare entitlements under Medicare and the
    Pharmaceutical Benefits Scheme (although some states also provide healthcare
    entitlements to asylum seekers).

Bridging visas with these
restrictions are commonly granted to asylum seekers who:

  • come to Australia under a valid visa and wish to apply for a Permanent
    Protection visa, but do not lodge their application within 45 days of arriving
    in Australia
  • are released from immigration detention for reasons such as health or age
  • appeal a decision of the Refugee Review Tribunal
  • request a Ministerial intervention.

As a result of these
restrictions, many asylum seekers and refugees may face poverty and
homelessness. Without the ability to support themselves through work or social
security, they are entirely dependent on community services for their basic
subsistence. The restrictions on volunteer work and study also mean that many
people are unable to engage in any constructive or meaningful activity. These
conditions can have negative effects on the physical and social well-being of
asylum seekers, including anxiety, depression, mental health issues and family
breakdown.

The Commission understands that the federal Department of Immigration and
Citizenship has indicated it will introduce some policy reforms in this area.
The Commission welcomes this development and looks forward to the implementation
of these reforms.

The Commission recommends asylum seekers released from immigration
detention and those living in the community be granted work rights and access to
Medicare. Those who are unable to work be granted access to financial and
medical assistance [Recommendation 5].

6.2 Protecting migrant workers from exploitation

Summary of issue:

Temporary business visa holders (457 Visa Holders) have been vulnerable to
workplace exploitation, including discrimination, due to a limited knowledge and
understanding of Australian workplace rights, limited English language and the
ongoing reliance on a sponsor for their visa status.

The Commission has recommended that the Australian Government ensure that 457
Visa Holders and employers should receive more information about their rights
and responsibilities under workplace and anti-discrimination laws, and that
there be effective complaints and monitoring mechanisms in place.

In 2008, the Australian Government commissioned a review of the 457 temporary
business visa system. The recommendations from the review have been referred to
a Skilled Migration Consultative Panel consisting of representatives of business
and industry groups as well as state governments and unions.

Relevance to Covenant: Articles 2 and 7

a) Complaints to the Australian Human Rights
Commission

The Australian Human Rights Commission has received complaints from 457 Visa
Holders alleging discrimination in the workplace. The types of issues raised by
people making complaints include:

  • not being paid overtime
  • working longer hours or days than non-visa employees
  • limited access to sick leave and dismissal if the Visa Holder takes sick
    leave
  • dismissal because the Visa Holder is pregnant
  • dismissal for taking leave to care for a sick spouse or child
  • overcharges on rent or other expenses organised by the employer
  • sexual harassment.

Many 457 Visa Holders will be unaware of
their workplace rights under Australian law. As new arrivals, they may be
unfamiliar with mechanisms for protecting the rights of workers. This may be
compounded by English language difficulties.457 Visa Holders are also vulnerable
to exploitation because they rely on their employers, as sponsors, for their
visa status.

Because of this vulnerability, it is important for 457 Visa Holders to know
that they are protected by Australian anti-discrimination and workplace laws,
similar to any other worker in Australia.

In January 2007, the Commission made a submission to a parliamentary Joint
Standing Committee on Migration ‘Inquiry into eligibility requirements and
monitoring, enforcement and reporting arrangements for temporary business
visas’ in January 2007 (available at http://www.humanrights.gov.au/legal/submissions/2007/migration457.html).
In that submission, the Commission raised its concerns about the need for 457
Visa Holders to understand their rights, and for adequate monitoring of
employment of 457 Visa Holders.

On 14 April 2008 the Minister for Immigration and Citizenship, Senator Chris
Evans, announced the establishment of an independent integrity review process,
following concerns raised about the Subclass 457 visa program. The Commission
made a submission in response to Issues Paper Three of that Review.

The Commissioner recommended that

  • 457 Visa Holders should be properly informed of their rights under workplace
    and anti-discrimination laws
  • The Department of Immigration and Citizenship (DIAC) should inform
    sponsoring employers of their obligations towards 457 Visa Holders under
    workplace and anti-discrimination laws.
  • DIAC should ensure that 457 Visa Holders are able to access effective
    complaints mechanisms.
  • DIAC should ensure rigorous monitoring of 457 Visa Holders
    workplaces.

The final report of the Integrity Review was completed
in October 2008. The Minister for Immigration has referred the implementation of
the recommendations of the review to a Skilled Migration Consultative Panel
consisting of representatives of business and industry groups as well as state
governments and unions.

6.3 Human Trafficking

Summary of Issue

The Commission is concerned that the rights to work and just and favourable
conditions are violated by the trafficking of people to Australia for the
purpose of exploitation and the practices of slavery, sexual servitude, debt
bondage, and forced labour. The Commission believes that Australia’s
response to people trafficking will benefit from a stronger focus on protecting
the human rights of trafficked
people.[21]

Relevance to Covenant: Articles 6 and 7

a) Rights of trafficked persons in Australia

Article 6 of the Covenant protects the right of everyone to take the
opportunity to gain their living by work which they freely choose or accept and
obliges the Australia to take appropriate steps to safeguard this right.
Article 7 recognises the right of everyone to just and favourable conditions of
work.

The precise number of people trafficked to Australia each year is not
known.[22] Since 2004, 107 suspected
trafficking victims have been placed on the government funded victim support
program for trafficking victims.[23] The vast majority of people on the program have been trafficked into sex
industry.

The Commonwealth Anti-Trafficking Strategy seeks to address all form of
trafficking. Although the Australian Government’s response to the problem
of trafficking initially focused on the trafficking of women for sexual
servitude, recently there has been a growing focus on how to improve
Australia’s response to trafficking for labour
exploitation.[24]

At the 2008 National Roundtable on People Trafficking (NRPT) it was agreed
that Australia 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’.[25] The Commission
urges the Australian Government to develop and promote best practices models for
responding to labour trafficking.

The Commission notes that the problems of slavery, forced labour and debt
bondage needs to be distinguished from lesser forms of exploitation which do not
fall with the criminal offences of 'slavery', 'sexual servitude', 'trafficking
in persons', 'trafficking in children', and 'debt bondage' contained in the Criminal Code Act 1995 (Cth). However, it is also important that the
problem of labour trafficking is analysed within the broader context of
Australian labour laws. The application of labour laws could assist to protect
the rights of people who have been, or are at risk of,
trafficking.[26]

b) Visa options and access to victim support

People who have been trafficked to Australia and who find themselves in
conditions of sexual servitude, slavery, forced labour and debt bondage are
often non-citizens and, in many cases, in Australia illegally. Access to
culturally appropriate services (including medical treatment, counselling,
housing, social support and legal and migration advice) is vital to help
trafficked people recover from their experience and to enable them to enjoy
their rights to health, housing and family
life.[27]

The government funded and administered Victim Support Program is part of the
Commonwealth Government’s Anti-Trafficking
Strategy.[28] The Victim Support
Program is available to victims of people trafficking in Australia who are
assessed by the Australian Federal Police as eligible for visa under the People
Trafficking Visa Framework.[29]

The People Trafficking Visa Framework has been criticised by the Commission,
academics and anti-trafficking NGOs on the grounds that it fails to protect the
rights of people who are unable or unwilling to assist a criminal investigation
or prosecution.[30]

While trafficked persons may be able to apply for a refugee protection visa,
they may face particular difficulties ‘establishing the requisite link
between the persecution and the state’ and establishing that the reason
that they fear persecution is because of their membership of a particular social
group.[31]

The Commission advocates reforming the current people trafficking visa
framework so that access to victim support and protection is contingent upon the
needs of the trafficked person, and not conditional on a person’s ability
to assist police investigations and prosecutions. The Commission supports:

  • Extending the period of time that a bridging visa F can be granted for from
    30 days to 3 months so that people who may have been trafficked have time to
    reflect upon their experience and decide whether to assist police. Access to
    this visa should not be contingent on the person’s ability to assist
    police investigations but based on their status and needs as a victim of
    trafficking.
  • Restructuring of decision-making processes so that the permanent witness
    protection visa are granted early in the investigation and prosecution process,
    rather than at the end of the criminal justice process and abolishing the
    temporary witness protection visa.
  • Giving consideration to amending the Criminal Justice Stay Visa and the
    Witness Protection (Trafficking) Temporary visa to enable the reunion of a visa
    holder with his or her children. [32]

The Department of
Immigration and Citizenship (DIAC) is conducting a review of the people
trafficking visa regime. The Commission is hopeful that the outcome of this
review will mean that people who have been trafficked to Australia will receive
support and protection on the basis of need, regardless of whether they are of
interest or assistance to police.

In 2008 the Commission chaired a National Roundtable on People Trafficking
working group that developed guidelines for NGOs working with trafficked
people.[33] The accompanying
two-page ‘Know Your Rights’ fact sheet gives trafficked people
information about how they can get advice about their visa status, contact
police and access support services. It has been translated into Thai,
Vietnamese, Korean, Chinese and Tagalog.

The Commission urges the Government to continue to develop culturally
appropriate information for people who have been trafficked. The development of
these resources is vital so that migrant workers in Australia are aware that
slavery, sexual servitude, debt bondage and trafficking in persons are crimes
under the Australian Criminal Code and understand that their rights under the Workplace Relations Act 1996 (Cth). The Commission supports the development
of specific education and training packages which raise awareness of labour
trafficking and the rights of migrant workers under Australian law.

c) Providing an effective remedy: compensation for trafficking
victims

Article 6 (6) of the United Nations Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children supplementing the
Convention on Transnational Crime
provides Australia ‘shall ensure its
domestic legal system contains measures that offer victims of trafficking in
persons the possibility of obtaining compensation for damage suffered’.

To date, the Commission is only aware of one award of compensation to a
person who was trafficked to
Australia.[34] There are significant
practical obstacles that may prevent a trafficked person from making
compensation claims, including obstacles to obtaining legal advice about
claiming compensation, a lack of visa options to stay in Australia to pursue
compensation claims, and the limited legal avenues to pursue compensation
claims.

The Commission urges the Australian Government to explore a variety of legal
options which will improve the ability of people who have been trafficked with
effective access to
compensation.[35] These could
include:

  • establishing a federal compensation scheme for victims of
    crime;[36]
  • exploring the potential of the Proceeds of Crime Act 2002 to enable
    the forfeiture of an offender’s assets to provide compensation to the
    victim of trafficking or a related offence[37] and pursuing reparations orders
    under s 21B of the Crimes Act 1914 (Cth);[38] 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.[39]

6.4 Stolen
wages

Summary of Issue

The issue of ‘stolen wages’ has impacted on Aboriginal and Torres
Strait Islander peoples’ right to just and favourable conditions of work.
It has also contributed to the entrenched and inter-generational disadvantage,
and consequent discrimination and inequality, experienced by Indigenous peoples
in Australia.

Relevance to Covenant: Article 7

The Stolen wages compensation schemes are a means by which Indigenous peoples
access their right to a remedy for the human rights violations they experienced.
The Human Rights Committee recommended, in their concluding observations on
Australia in 2000,[40] such a remedy
be made available where rights have been violated.

Stolen wages compensation schemes have been established in Queensland and New
South Wales to compensate Indigenous peoples for the withholding, non-payment
and underpayment of wages in the control of
government.[41] Investigations and
consultations on the nature and extent of stolen wages are also underway in
Western Australia.

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

The Commission also has significant concerns about the adequacy and fairness
of the regimes established, particularly by the Queensland Government, to
address injustices inflicted on Aboriginal and Torres Strait Islander people
through the underpayment of
wages.[42]

In December 2006 the Senate Standing Committee on Legal and Constitutional
Affairs published a report titled Unfinished business: Indigenous stolen
wages
, which recommended that governments provide unhindered access to
archives for the purposes of researching the stolen wages issue as a matter of
urgency. They also recommended that funding be made available for education and
awareness in Indigenous communities as well as for preliminary legal research
into stolen wages issues.[43] These
recommendations have not been adopted.

6.5 Income management welfare schemes

Summary of Issue

As exemplified by reports such as the Little Children are Sacred Report (NT) and the Breaking the Silence Report (NSW), child abuse, child
sexual abuse and family violence are critical issues for Indigenous
communities.[44] 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.[45]

To address such issues the government has introduced a range of income
management welfare schemes, where welfare incomes are quarantined or deducted,
which raises a number of human rights concerns, including for the right to
social security.

Relevance to Covenant: Articles 9, 10 and 13

The Social Security and other Legislation Amendment (Welfare Payment
Reform) Act 2007
(Cth) provides for the quarantining and control of welfare
income available to Indigenous peoples in prescribed Northern Territory
Communities for a period of 12 months, with the possible extension of this for
up to five years. It also puts in place the legislative framework for delegated
legislation to be enacted to set up an administrative body called the Queensland
Commission to regulate income management in Cape York.

The new federal government is also currently developing a national framework
for child protection that consolidates the different state and territory child
protection systems, to ensure an integrated response across all government and
non-Government organisations. As part of this framework, the government has
looked to introduce income management schemes, where welfare incomes are
quarantined or deducted subject to the enrolment and participation of children
in schools.

The Social Justice Report 2007 provides a detailed review of the
income management measures under the NTER legislation. The income management
measures raise the following concerns relating to compatibility with the right
to social security:

  • The blanket application of the income management regime in the 73 prescribed
    communities in the NT means that the measures are applied to individuals that
    are not responsible for the care of children, do not gamble, and do not abuse
    alcohol or other substances. The criteria for being subject to the income
    management provisions is therefore solely on the basis of the race of the
    welfare recipient instead of being on the basis of need.
  • The scheme is also established so that it is difficult for individuals to be
    exempted from the income management provisions. A decision by the Minister is
    required for an exemption to be granted. It would be more appropriate for the
    decision-making about the applicability of the scheme to be inverted, so that
    for the scheme to operate in relation to a particular individual it would
    require a decision, based on clearly defined criteria, that the scheme should be
    applied.
  • This also means that the method for delivery of welfare provisions is
    extremely costly, with significantly increased bureaucratic involvement and
    costs. It is questionable that this is the most appropriate approach for
    delivering welfare. Better outcomes could be obtained at a more reasonable cost
    by focusing efforts on ensuring that there is appropriate education and
    awareness about social security issues in Indigenous communities.
  • As the income management measures are so broadly applied, there is a tenuous
    connection between the operation of the scheme and the object of addressing
    family violence and abuse. When coupled with the lack of participation and
    consultation with Indigenous communities, this renders it very difficult to
    support the view that these measures are appropriately characterised as a
    special measure.
  • If the measures were targeted solely to parents or families in need of
    assistance to prevent neglect or abuse of children, as they are in s123UC of the
    legislation, then some form of income management may be capable of being seen as
    an appropriate exercise of the governments ‘margin of discretion’ to
    ensure that families benefit from welfare and receive the minimum essentials for
    survival.
  • It is difficult, however, to see how the quarantining of 100% of welfare
    entitlements can be characterised as an adapted and appropriate response, given
    the impact that benefits are being provided in a form that is onerous and
    potentially undignified.
  • As discussed earlier, the limitations on reviewing decision-making in
    relation to the income management regime, and especially the denial of external
    merits review processes, significantly undermines the ability to characterise
    the income management regime as an adapted and appropriate response. This is a
    clear denial of justice, is discriminatory in its impact and does not meet the
    requirement for the provision of effective judicial or other appropriate
    remedies that is integral to the right to social security. The absence of access
    to complaints processes such as under the Race Discrimination Act also breaches
    the right to social security.

It is arguable that 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 a hand out to a 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.

Notably, however, some of those procedural guarantees – such as access
to merits review and to access Queensland discrimination laws – are
removed in the provisions that are contained in the social security amendments
in the NTER legislation and so it is not clear that the Queensland Commission
that has been authorised actually complies.

Consistent with the right to social security, the provisions on income
management in the NTER legislation should be reviewed and amended to ensure that
these provisions are compatible with obligations arising from the right to
social security.

Such a review should ensure that the right of individuals and groups to
participate in decision-making processes that may affect their exercise of the
right to social security are made an integral part of the NTER process into the
future.

The NTER legislation should also be amended to ensure that adequate
protections are provided to protect the privacy of individuals in the handling
of personal information.

A further objective of income management is to provide an incentive for
Aboriginal families to ensure that their children attend school. However, the
income management scheme as set forth in the NTER legislation presupposes that
children in the Northern Territory could access ordinary educational
opportunities if they so wished.

An emphasis on providing children with incentives to learn and developing
methods of teaching that resonate with Indigenous students is preferable to
measures that penalise parents. Along with extensive Federal and Northern
Territory government financial commitments to improve the quality and
availability of education, such measures should be extensively trialled before
options as punitive as income management of 100% of welfare entitlement
recipients are utilised.

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

The Commission’s report on Ending Family violence and Abuse in
Aboriginal and Torres Strait Islander Communities
highlights the need for
support for Indigenous community initiatives and networks, human rights
education, government action, and robust accountability and
monitoring.[46]

6.6 Sexual harassment

Summary of issue
Despite nearly 25 years of legislative
protection under the Sex Discrimination Act 1984 (Cth), sexual harassment
remains a problem in Australian workplaces. The widespread incidence of sexual
harassment impacts on the capacity of women to equally enjoy safe and healthy
working conditions. In June 2008, the Australian Government announced a Senate
Inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth)
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 Sex
Discrimination Act 1984
(Cth) (SDA) to redress sexual harassment. A number
of the Commission’s recommendations were adopted by the Inquiry. The
Government is yet to respond to the Senate Committee’s report.

Relevance to Covenant: Articles 2(2), 3, 6 and 7(b).

 

Sexual harassment featured as a common concern during the Sex Discrimination
Commissioner’s national Listening Tour. The Commissioner heard
sexual harassment was present across diverse industries and occupations. She
also heard that victims of sexual harassment commonly fear that making a
complaint will lead to further victimisation. 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.

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 Commission has found that despite a slight improvement, sexual harassment
continues to be prevalent. The national telephone survey revealed 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. In the 2008
national telephone survey, only 16% of those who have been sexually harassed in
the last five years in the workplace formally reported or made a complaint,
compared to 32% in 2003.[47]

The 2008 survey also found a lack of understanding as to what sexual
harassment is. Around one in five (22%) respondents who said they had not
experienced ‘sexual harassment’ then went on to report having experienced behaviours that may in fact amount to
sexual harassment under the SDA.

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 under the law and 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; and
  • Enable the Commission to repeat its national telephone survey ever five
    years in order to independently monitor trends in the nature and extent of
    sexual harassment in Australian
    workplaces.[48]

Further in its submission to the Senate and Legal Constitutional
Affairs Committee Inquiry into the effectiveness of the Sex Discrimination
Act 198
4 (Cth) in eliminating discrimination and promoting gender equality,
the Commission highlighted the need for expanded legal protection and
comprehensive education efforts to eliminate sexual harassment. The Commission
made recommendations to increase the capacity of the SDA to better redress
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.[49]

These recommendations were adopted by the Senate Committee. The Australian
Government is yet to respond to the report.

The Commission recommends that the Australian Government take further
action to address sexual harassment in Australia, including implementation of
the Commission’s proposals contained in its 2008 National Telephone Survey
and Submission to the Senate Inquiry into the Effectiveness of the Sex
Discrimination Act 1984
(Cth) [Recommendation 6].

6.7 Women and retirement

Summary of issue

One of the key pillars of Australia’s retirement income system is the
‘Superannuation Guarantee’. The Superannuation Guarantee is a
compulsory contribution system linked to paid work and the level of earnings.
The linking of the superannuation guarantee (‘the SG’) exclusively
to engagement in paid work disadvantages women and other groups with marginal
labour force attachment and lower earnings. Current figures show that
women’s superannuation balances are less than half of those of
men.[50]

Superannuation is a type of social insurance under Article 9 of the
ICESCR.[51] Due to superannuation
being linked to paid work, women do not currently equally enjoy the right to
social security in Australia.

The Australian Government is currently reviewing the retirement income
system as part of a broader review of the national tax system. The Commission
has lodged a submission urging the Australian Government to redress the
disadvantage faced by women in the current system.

Relevance to Covenant: Articles 2(2), 3, 7(a)(i), 9 and 11.

 

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 the lifetime, but when they do engage in paid work, they
accumulate lower amounts of superannuation. Current figures show that
women’s superannuation balances are less than half of those of
men.[52] This stark figure is a
clear marker of gender inequality in Australia.

With women generally retiring earlier and living longer than men, there are a
number of serious implications stemming from the gender inequality in retirement
savings. Many women face prospects of financial insecurity and poverty in
retirement, often solely relying on the Age Pension. Of all household types in
Australia,[53] elderly single women
are at the greatest risk of
poverty.[54] Around 73% of those on
the single rate of the Age Pension are
women.[55]

During her national Listening Tour, the Sex Discrimination
Commissioner consistently heard deep concerns from women about financial
security in retirement and the adequacy of the Age Pension. Reducing the gender
gap in retirement savings to increase financial security across the lifecycle is
a key priority for the Sex Discrimination Commissioner as part of her Plan of
Action Towards Gender
Equality
.[56]

The Australian Government is also undertaking a review of the Age Pension and
the retirement income system. In the submission to Australia’s Future 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.[57]

The Commission has recommended actions in the following areas to increase
women’s economic security in retirement:

  • Remove barriers to women’s labour market participation.
  • Increase life-time earnings for women by reducing the gender pay gap.
  • Extend 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.
  • Ensure 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.
  • Regularly monitor and report on the gender impact of Federal budgets and
    reforms.
  • Independently monitor and report on Australia’s progress towards
    achieving substantive gender equality.

It is expected that the
Australian Government will report on the review of the retirement income system
and Age Pension by the end of 2009.

6.8 Paid maternity leave

Summary of issue

Australia does not provide for a national statutory right to paid maternity
leave.

Relevance to Covenant: Articles 2(2), 3, 6 and 7.

In 2000, the Committee’s Concluding Observations recommended that the
‘State party consider enacting legislation on paid maternity leave and
ratifying ILO Convention No. 103 concerning maternity
protection.’[58]

Australia remains one of only two OECD countries without minimum paid
maternity leave entitlements, the other country being the United
States.[59] Australia also retains
its reservation under art 11(2)(b) of CEDAW regarding paid maternity leave.

The Commission welcomed the Federal Government’s referral to the
national Productivity Commission (the Federal Government's independent research
and advisory body on a range of economic, social and environmental issues
affecting the welfare of Australians) of an inquiry into the introduction of
Paid Maternity Leave, Paternity Leave and Parental Leave

The Commission made a detailed submission to the Productivity
Commission’s Inquiry.[60]

The Productivity Commission released a draft report in September 2008 which
recommended a federal government-funded universal scheme of 18 weeks paid leave
for mothers and 2 weeks for fathers or supporting parents (in same sex
relationships).[61] The Commission
made a supplementary submission in response to this draft
report.[62]

The Productivity Commission’s final report was completed on 28 February
2008 and submitted to the Federal Government. The final report has yet to be
publicly released.

At the present time, there is no indication as to whether the Australian
Government will commit to implementing the final recommendations of the
Productivity Commission regarding introduction of paid maternity leave,
particularly in light of the current economic situation in Australia, and the
context of the Global Financial Crisis.

The Commission continues to support introduction of paid maternity leave in
order to fulfill the Australian Government’s obligations regarding the
right to non-discrimination in relation to women’s rights, including the
right to work. The Commission considers paid maternity leave would also act as
an economic stimulus, and is an inexpensive reform that would maximise the
ability for both men and women to retain workforce attachment into the future.

The draft proposal by the Productivity Commission is reasonable, and
affordable. The cost to the Australian taxpayer is estimated to be $452 million,
a modest increase of two per cent over Australia's current overall spending on
family payments.

It is important to note that, while Australia is the number one country for
women’s educational attainment, there is a serious lag on women’s
workforce participation, with Australia ranked only 40th in the world, behind
the UK, New Zealand and Canada.[63] Paid maternity leave is an important measure to improve the ability of women to
participate in paid work.

The Commission recommends that the Australian Government introduce a
national statutory scheme of paid parental leave, including paid maternity leave
[Recommendation 7].

6.9 Gender pay gap

Summary of Issue

There is a gender pay gap in Australia, with
female workers earning 16.7% less than male workers. The gender pay gap has
slightly widened in recent years.

Relevance to Covenant: Articles 2(2), 3 and 7

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. And then, 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.[64]

Breaking the gender pay gap down by industry in Australia, the hospitality
industry has the smallest pay gap at 1.1%, followed by government at 2.2%. The
industries with the largest pay gap are the finance and insurance industries
(24.7%) and mining (22.3%).[65]

A recent report looking at the pay of top earners in Australian companies
shows that there is a large gender pay gap at the highest levels of large
Australian companies. Women hold just seven percent of the top earner positions
(80 out of 1136). Female Chief Financial Officers and Chief Operating Officers
earn just half of what their male counterparts earn. In Chief Executive Officer
positions, a female earns two thirds of the salary earned by her male
counterpart.[66]

The Commission welcomes the House of Representatives Inquiry into Pay Equity
and associated issues related to increasing female participation in the
workforce, and has made a submission to this
Inquiry.[67] The Commission has
recommended that the Australian Government:

  • Amend the Sex Discrimination Act 1984 (Cth) in accordance with the
    recommendations of the Senate Inquiry Report into the Effectiveness of the Sex
    Discrimination Act 1984 (Cth)
    (2008),[68] 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)), 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; and
  • Increase funding to the Commission to enable it to exercise its existing and
    proposed new powers and functions in this area.

The Commission
welcomes the new equal remuneration provisions in the Fair Work Act 2009 (Cth) which have substantially adopted the Commission’s proposals for
legislative reform in this area.

The Commission recommends that the
Australian Government take further action to close the gender pay gap in
Australia, including implementation of the Commission’s proposals to the House of Representatives Inquiry into Pay Equity [Recommendation
8].

7. Land rights, native title rights and environmental management

7.1 Native Title System Reform

Summary of Issue

The Native Title Act 1993 (Cth) (Native
Title Act) is the primary mechanism through which Aboriginal and Torres Strait
Islander people access their cultural rights to land. The Act was intended to
advance and protect Indigenous peoples by recognising their traditional rights
and interests in the land.[69]

However, in practice, there are a number of limitations of the native title
system such as:

  • The courts have construed the Native Title Act as requiring that Indigenous
    peoples claiming native title need to prove traditional laws and customs at
    sovereignty and their continued observance generation by generation until
    today.[70] 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.[71] 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.

The reforms to the Native Title system do not reach far enough to
overcome the limitations of the native title system or enable the full
realisation of rights to land and culture.

Relevance to Covenant: Articles 11 and 15

Native Title reforms which were announced in 2005 have resulted in the Native Title Amendment Act 2007 and the Native title Amendment
(Technical Amendments) Act 2007
.

The Native Title Reports 2007 and 2008 provided detailed
discussion and a number of recommendations regarding the Native Title Reforms.
The Aboriginal and Torres Strait Islander Social Justice Commissioner has
expressed concerns that the reforms announced by the Australian Government in
2005 do not ensure any significant improvement in outcomes for Aboriginal and
Torres Strait Islander peoples.[72] Of particular concern is:

  • the extent to which the reforms will impact on the realisation of the human
    rights of Aboriginal and Torres Strait Islander Peoples
  • the failure to place the recognition and protection of native title at the
    centre of the government’s reform agenda. Instead, the changes were
    directed at achieving a more efficient and effective native title system
  • the failure to provide a mechanism to review the implementation of the
    changes.[73]

To date,
the Attorney-General has not formally responded to the Native Title
Reports
2007 and 2008 or advised the Commission of the
Australian Government’s position in relation to its recommendations.

The CERD Committee in its concluding observations in 2005 expressed its
concerns on many of the issues raised in the Native Title Reports referred to
above:

The Committee notes with concern the persistence of diverging perceptions
between governmental authorities and indigenous peoples and others on the
compatibility of the 1998 amendments to the Native Title Act with the
Convention. The Committee reiterates its view that the Mabo case and the 1993
Native Title Act constituted a significant development in the recognition of
indigenous peoples' rights, but that the 1998 amendments wind back some of the
protections previously offered to indigenous peoples, and provide legal
certainty for government and third parties at the expense of indigenous title.
The Committee stresses in this regard that the use by the State party of a
margin of appreciation in order to strike a balance between existing interests
is limited by its obligations under the Convention.

The Committee recommends that the State party should not adopt measures
withdrawing existing guarantees of indigenous rights and that it should make all
efforts to seek the informed consent of indigenous peoples before adopting
decisions relating to their rights to land. It further recommends that the State
party reopen discussions with indigenous peoples with a view to discussing
possible amendments to the Native Title Act and finding solutions acceptable to
all.[74]

While the Commission notes that the previous Government has provided a
response to some of the Committee’s concerns, many of the concerns raised
by the Committee have not been addressed. These are:

  • That the 1998 amendments to the Native Title Act rolled back some
    protections previously offered to Indigenous peoples and provide legal certainty
    for Government and third parties at the expense of Indigenous title.
  • That the burden of proof for Indigenous peoples in Australia continues to be
    a significant barrier to Indigenous peoples’ success in achieving a
    determination that native title exists.

7.2 Land Rights under
the Northern Territory Emergency Response (NTER)

Summary of Issue

The NTER legislation has allowed the federal government to acquire a wide
range of interests in land. For example, while generally, any rights, titles or
interests that existed in relation to lands to be covered by a five-year lease
immediately before the lease is to take effect are preserved, the federal
minister may, at any time, terminate the right, title or interest by giving
notice in writing to the person who holds
it.[75]

The NTER legislation reduces the protection of Aboriginal people’s
rights and interests in their traditional lands as provided by both the
Aboriginal Land Rights Act and the Native Title Act. This legislation also
impacts on the ability for those Aboriginal people affected to leverage
economic, social and cultural development through the future acts regime.

Relevance to Covenant: Articles 11 and 15

The NTER legislation has allowed the federal government to acquire a wide
range of interests in land. For example, while generally, any rights, titles or
interests that existed in relation to lands to be covered by a five-year lease
immediately before the lease is to take effect are preserved, the federal
minister may, at any time, terminate the right, title or interest by giving
notice in writing to the person who holds
it.[76]

The rights, titles and interests the federal government has acquired
include:

  • 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.

The High court in its decision on Wurridjal v
the Commonwealth
[77] (February
2009) held that the Constitution required any acquisition under the Northern
Territory Emergency Response legislation to be on ‘just terms’. The
court further held that there had been an acquisition of property under the
legislation and that the laws provided for just terms for any acquisition. The
court also found that the statutory formula provided for in the NTER legislation
provided for ‘just terms’.

Additionally, Schedule IV of the Families, Community Services and
Indigenous Affairs and Other Legislation Amendment (Northern Territory National
Emergency Response and Other Measures) Act 2007
(Cth), modifies the existing
permit system for Aboriginal land in the Northern Territory set out by the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ALRA by giving
the Northern Territory Legislative Assembly the power to make laws authorising
entry onto Aboriginal land. Schedule IV also gives the administrator of the
Northern Territory the power to declare an area of Aboriginal land to be an area
not requiring a permit for entry.

The removal of the permit system affected specified townships - prescribed
areas and roads but it did not affect all areas. Sacred sites and land outside
the identified areas still required permits. The removal of the permit system,
consequently removed the capacity for Aboriginal Northern Territorians to
exercise self-determination and self governance on their lands and territories.

The Commission supports the view that the blanket removal of the permit
system on roads, community common areas and other places is not an appropriate
measure and does not have a sufficient relationship to the purpose of the
legislation to qualify as a special measure. In the absence of contrary
evidence, these provisions should be repealed.

With regard to the implications for the operation of the native title system,
the preservation of pre-existing rights, titles or other interests does not
apply to native title rights and interests. 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[78] 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.[79]

The future act regime provided for in Part 2, Division 3 of the Native Title
Act, provides for procedures to be followed to ensure that a future act is valid
and prescribes the affect of future acts on any native title rights and
interests. The preamble to the Native Title Act states:

In future, acts that affect native title should only be able to be validly
done if, typically, they can also be done to freehold land and, if whenever
appropriate, every reasonable effort has been made to secure the agreement of
the native title holders through a special right to negotiate.

In some cases compliance with procedural requirements is a precondition for a
future act to be valid. Notification to those who hold, or may hold, native
title in the land in question may be required and the parties may be required to
negotiate in good faith for the doing of the act. Where procedural requirements
must be followed, failure to do so will mean that the future act is
invalid.[80]

The NTER legislative amendments to the ALRA displace the protection given in
Section 71 of the ALRA, to the traditional rights of use and occupation of
Aboriginal land. In effect, an Aboriginal or group of Aboriginals is no longer
entitled to enter upon Aboriginal land and use or occupy that land in accordance
with Section 71(1) of the ALRA if to do so would interfere with the use or
enjoyment of the statutory rights of a government (or authority or a third party
with a permit to exercise those rights) acquired under Part IIB of the ALRA.

The NTER legislation significantly reduces the protection of Aboriginal
people’s rights and interests in their traditional lands as provided by
both the ALRA and the Native Title Act. However, this legislation also impacts
on the ability for those Aboriginal people affected to leverage economic, social
and cultural development through the future acts regime.

7.3 Indigenous participation in environmental management

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

8 Housing

Summary of issue:

Indigenous peoples are likely to experience homelessness because of the high
levels of social and economic disadvantage. According to the 2006 Census, there
were 4116 Indigenous peoples who were homeless on Census
night.[81] In every state and
territory, Indigenous clients of SAAP services were substantially
over-represented relative to the proportion of Indigenous peoples in those
jurisdictions.[82]

Relevance to Convention: Article 11

In 2006, the Special Rapporteur on Adequate Housing identified that there was
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.[83]

Further
factors that contribute to Indigenous homelessness include:

  • Many Indigenous peoples enter poverty and homelessness as a result of poor
    educational and employment opportunities
  • Indigenous peoples 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 can increase the
    chances of an Indigenous person becoming homeless
  • A survey of housing in the Northern Territory by Professor Torzillo found
    that 65% of houses surveyed in remote communities did not have a working shower.
    Such inadequate housing can severely impact on the health of residents. While
    initiatives to improve health through better housing, like the ‘Fixing
    Houses for Better Health’ program, are to be applauded, there is still a
    long way to go to close the gap in Indigenous and non-Indigenous housing and
    health outcomes.
  • The amendments to the Aboriginal Land Rights Act 1976 (NT) were a
    point of concern noted by the Special Rapporteur, as contributing to inadequate
    housing, by undermining security of tenure. The Social Justice Report
    2007
    also outlined concerns about the compulsory acquisition of property
    without the provision of just terms compensation as further undermining security
    of tenure on a community-wide level.
  • Ensuring that housing is culturally appropriate is necessary to make a
    difference to Indigenous homelessness. This means that consultation must occur
    with local people to ensure that housing design meets local cultural and
    environmental needs.[84]

9 Health

9.1 Impact on mandatory immigration detention on
health

Summary of issue:

The Commission’s 2008 immigration detention report reveals that,
despite improvements in conditions in immigration detention facilities, some
people are still being detained for prolonged and indefinite periods of time. It
is well-established that detaining people in these circumstances leads to
negative impacts on their mental health. As a result, the Commission has
repeatedly recommended the repeal of the mandatory immigration detention system,
which requires the detention of all unauthorised arrivals, without the
opportunity for judicial review of the need to detain.

The Commission has welcomed the Australian Government's announcement in 2008
of new directions in the immigration detention system. However, until the new
values announced by the Australian Government are translated into policy,
practice and legislative change, the Commission is concerned that prolonged and
indefinite detention will continue to occur, with negative impacts on
health.

Relevance to Convention: Articles 10 and 12

a) Impact of prolonged and indefinite detention on
health

Since 1992, the Migration Act 1958 (Cth) (Migration Act) has made it
mandatory, under s 189, for any person in Australia without a valid visa to be
detained. Section 196 requires that, once detained, unlawful non-citizens must
be kept in detention unless they are removed or deported from Australia, or
granted a visa.

While there are some mechanisms in place to release people onto bridging
visas, or into alternative forms of
detention,[85] in practice most
unlawful non-citizens are detained in immigration detention facilities for a
significant period of time. Further, the need to detain is not subject to review
by the courts.

On 13 January 2009 the Commission released the 2008 Immigration detention
report: Summary of observations following visits to Australia’s
immigration detention
facilities
.[86] The Commission
conducts annual visits to immigration detention facilities to monitor
conditions, with the aim of ensuring they meet internationally recognised human
rights standards. This report follows the Commission’s 2006 and 2007
annual inspection reports.

The Commission’s 2008 inspection report shows that, despite
improvements in the physical conditions of immigration detention facilities over
the past few years, the most critical human rights issue remains: some people
are being 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.[87]

The Commission has noted in its past two annual inspection reports, and in
previous National Inquiries, that this continues to be a fundamental problem
which cannot be adequately addressed by the delivery of mental health services
in immigration detention.[88] This
is because, often, the detention itself causes or exacerbates mental health
concerns. Mental health staff have little control over the length of detention,
so they cannot effectively address this cause of distress for detainees.

The Commission has consistently called for the repeal of the mandatory
detention system in Australia, in part because of the devastating effects it has
had, and continues to have, on the mental health and well-being of people
detained.

b) Changes to immigration detention

In July 2008, the federal Minister for Immigration and Citizenship announced
new directions for Australia’s immigration detention
system.[89] The
new directions are based on seven key values. Of these values, the Commission
welcomes the following:

  • Detention that is indefinite or otherwise arbitrary is not acceptable and
    the length and conditions of detention, including the appropriateness of both
    the accommodation and the services provided, will be subject to regular review.
  • Detention in immigration detention centres is only to be used as a last
    resort and for the shortest practicable time.
  • Children and, where possible, their families, will not be detained in an
    immigration detention centre.
  • People in detention will be treated fairly and reasonably within the law.
  • Conditions of detention will ensure the inherent dignity of the human
    person.

While the Commission welcomes the statement of the above
values, it hopes to see them translated into policy, practice and legislative
change as soon as possible.

The legal architecture of the mandatory immigration detention system remains
in place. There are fewer people in immigration detention and the number of
long-term detainees is decreasing. However, some people are still held for long
and indefinite periods. During its 2008 visits, the Commission met with people
who had been in detention for periods of up to six years. As discussed above,
prolonged and indefinite immigration detention has led to significant health
concerns.

With respect to children in immigration detention, the Commission’s
2004 report of its Inquiry into Children in Immigration Detention – A
last resort?
- found that Australia failed to ensure that children and
parents in immigration detention centres could enjoy the right to the highest
attainable standard of physical and mental health. The Australian
Government’s immigration detention policy was ameliorated in 2005 so that
most children were released from the more secure closed immigration detention
centres. However, some children continue to be held in alternative forms of
closed immigration detention for periods of time, both on the mainland and on
Christmas Island. While the physical environment of these places of detention is
highly preferable to the more secure closed immigration detention centres, the
psychological effects of being detained are similar. For children and their
families, these facilities are inappropriate for anything but the briefest of
periods.

The Commission recommends:

  • Australia’s mandatory detention law be repealed [Recommendation 9].
  • the Migration Act be amended so that immigration detention occurs only
    when necessary. Detention should be the exception, not the norm. It 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. These limited grounds for
    detention should be clearly prescribed in the Migration Act [Recommendation 10].
  • the Migration Act be amended so that the decision to detain a person is
    subject to prompt review by a court, in accordance with international law
    [Recommendation 11].
  • the Migration Act be amended to include periodic independent reviews of
    the ongoing need to detain an individual, and a maximum time limit for detention
    [Recommendation 12].
  • children only be detained as a measure of last resort and for the
    shortest appropriate period of time [Recommendation 13].

9.2 Indigenous health inequality

Summary of Issue

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. The government has already made
substantial investments, backed up by emerging health system reforms. They have
elevated the urgency of dealing with the Indigenous health crisis to a national
priority and one that shares bipartisan support.

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; and
  • 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.

Relevance to convention: Article 12

a)The Close the Gap Campaign on Indigenous health inequality

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.[90] This
is a 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.

Indigenous leadership, and the leadership of the Indigenous health peak bodies in particular, has also been a hallmark of the Close the Gap Campaign. Through these members in particular, the Campaign draws on a support base from within the Indigenous community.

In
March 2008, the Australian Government also signed a historic Close the Gap
Statement of Intent
in which it committed with the Campaign partners:

  • To developing a comprehensive, long-term plan of action, that is targeted to
    need, evidence-based and capable of addressing the existing inequities in health
    services, in order to achieve equality of health status and life expectancy
    between Aboriginal and Torres Strait Islander peoples and non- Indigenous
    Australians by 2030.
  • To ensuring primary health care services and health infrastructure for
    Aboriginal and Torres Strait Islander peoples which are capable of bridging the
    gap in health standards by 2018.
  • To ensuring the full participation of Aboriginal and Torres Strait Islander
    peoples and their representative bodies in all aspects of addressing their
    health needs.
  • To working collectively to systematically address the social determinants
    that impact on achieving health equality for Aboriginal and Torres Strait
    Islander peoples.
  • To building on the evidence base and supporting what works in Aboriginal and
    Torres Strait Islander health, and relevant international experience.
  • To supporting and developing Aboriginal and Torres Strait Islander
    community-controlled health services in urban, rural and remote areas in order
    to achieve lasting improvements in Aboriginal and Torres Strait Islander health
    and wellbeing.
  • To achieving improved access to, and outcomes from, mainstream services for
    Aboriginal and Torres Strait Islander peoples.
  • To respect and promote the rights of Aboriginal and Torres Strait Islander
    peoples, including by ensuring that health services are available, appropriate,
    accessible, affordable, and of good quality.
  • To measure, monitor, and report on our joint efforts, in accordance with
    benchmarks and targets, to ensure that we are progressively realising our shared
    ambitions.[91]

Since
then, the Close the Gap Statement of Intent has received bi-partisan
support from the Parliaments of Victoria and Queensland. Efforts are underway
for every Australian government to have signed the Statement of Intent in
2009.

The Close the Gap Statement of Intent is one of the most significant
compacts between Australian governments and civil society in Australian history.
There was substantial support given it by the health peak professional bodies
whose members play a central role in the delivery of primary health care
services.

b) National Indigenous Health Equality Targets

National Indigenous Health Equality Targets were also developed by the
Close the Gap Campaign partners over a period of six months by three working
groups. A notable Indigenous person with extensive health experience led each
working group.[92] The targets
working groups drew on the expertise of a wide range of health experts, and, in
particular, Indigenous health
experts.[93]

The following considerations framed the thinking of the Steering Committee
and the assisting experts when developing targets:

  • What targets (if achieved) will reduce disparity to the greatest
    degree?
  • What targets (if achieved) will improve health outcomes to the greatest
    degree? What is the disease-specific burden experienced by Indigenous
    populations?
  • Can the current/future indicators adequately measure whether or not the
    target has been reached, or if significant additional investment, infrastructure
    or capacity required?
  • To what targets can government be held to account for as their primary
    responsibility?

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. As noted, 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.

The targets identify the following five key subject areas for target setting
as priorities, and the key elements of any national plan to achieve Indigenous
health equality:

  • Partnership;
  • Health status;
  • Primary health care and other health services;
  • Infrastructure; and
  • Social and cultural determinants (currently under
    development).

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.

c) Partnership with Indigenous organisations

A further concern of the Campaign partners remains in relation to partnership
and the achievement of Indigenous health equality. While the Campaign partners
have therefore been encouraged by the commitments to partnerships including by
the Prime Minister in the Apology to Australia’s Indigenous
Peoples[94]
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.

When talking of partnership, the Steering Committee see this as meaning
partnership between:

  • Indigenous peoples and their representatives;
  • Australian governments (with an internal, cross sectoral dimension; and at
    the intergovernmental level); and
  • Key players in the Indigenous and non-Indigenous health
    sector.

The Steering Committee has identified partnership as being
so fundamental to the achievement of Indigenous health equality that they
included partnership targets in the National Indigenous Health Equality
Targets
. These targets propose that within 2 years (meaning by the end of
2009):

  • A National Framework Agreement to secure the appropriate engagement of
    Aboriginal people and their representative bodies in the design and delivery of
    accessible, culturally appropriate and quality primary health care services is
    established; and
  • That nationally agreed frameworks exist to secure the appropriate engagement
    of Aboriginal people in the design and delivery of secondary care
    services.[95]

The
Steering Committee believes that Australian governments are aspiring to engage
with Indigenous peoples more effectively as partners. The challenge is to
identify how this is to be achieved.

Particularly in relation to a national primary health cares 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 Education

10.1 Indigenous education

Summary of Issue

While some small improvements have been made in the education outcomes of
Indigenous students in Australia 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.

Relevance to Covenant: Articles 13 and14

a) The provision of
education in remote Australia

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 peoples living in very remote
Australia.[96]

31 percent of Indigenous Australians live in major cities and 24 percent live
in remote and very remote
Australia.[97] The remainder of the
Indigenous population lives in regional centres. The Accessibility/Remoteness
Index of Australia describes remote and very remote locations as having very
little accessibility of goods, services and opportunities for social
interaction.[98]

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 during wet season there
may be no access for months on end. If internet access is available in remote
Australia, it is usually via satellite, offering a dial-up service with limited
and slow internet speeds.

In some remote areas there is a very poor or part time primary school service
and in others there is no service at all. Of great concern is the fact that the
Australian Government has no instrument to assess the extent to which remote
students have reasonable access to schools services. The poor educational
outcomes for this cohort suggest that action must be taken to assess and remedy
this situation. Assessing school accessibility for remote students by region is
one essential future action to which the Australian Government must commit. Such
action is a starting point to address the poor outcomes as described Review
of Government Service Provision
to Indigenous Australians.

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 (Storry 2006). In remote areas of the NT,
only 3 to 4 per cent of Indigenous students achieved the national reading
benchmark in 1999 (ANAO
2002).[99]

At this time Australia has no accurate national data to assess the number of
Indigenous school-aged children who have access or no access to a
school within travelling distance. In the Northern Territory, where the total
Indigenous population is approximately 68,000, there are conservatively
estimated to be 2,000 Indigenous school-aged children with no access to a
school. It is believed that these young people are not attending school.

In Australia, secondary education is not generally available in locations
with small populations. The majority of small, remote communities in Australia
are known as Indigenous Homelands. Homelands are made up of Aboriginal clan
families who live on ancestral lands, usually in very remote parts of Australia.

In 2006 the number of discrete Indigenous communities spread across Australia
was 1,187. Of this number 767 Indigenous communities were in very remote
locations with a usual population of less than 50 persons. These communities are
not likely to have schools, or if they do, the school is most likely to provide
primary level education with a visiting teacher who attends for a number of days
each fortnight. In many cases the communities have limited infrastructure, no
power or running water.

The Commission recommends the Australian Government audit populations and
projected populations of remote preschool and school-aged children and assess
whether the existing education infrastructure and services meets the needs of
remote Indigenous populations. Where the school provision does not meet
population needs, the government should develop a national, funded plan to
upgrade or build quality preschool, primary and secondary school infrastructure
where populations warrant them [Recommendation 14].

b) Bilingual education

Apart from some notable exceptions, most government and non-government
schools in Australia provide a Western model of education. They follow a Western
calendar, celebrate Christian holidays and provide education that reinforces
Western culture and ways of
learning.[100] Assimilation and
the forces of mainstream culture mean that any Indigenous-focussed study is
directed to teaching a past history and (in some rare instances) revitalising
Indigenous languages that are no longer spoken. Indigenous culture is usually
taught through a history syllabus. The revitalisation of Indigenous language and
culture occurs at the margins of mainstream education, if at all.

Previous government policies of assimilation and the prevailing
‘mainstream’ Western cultural approach to culture in schools has all
but eliminated Indigenous culture and languages in the densely populated areas
of Australia. Of the estimated 250 original Indigenous languages that existed in
Australia prior to colonisation, less than 20 languages exist as full languages
and are considered to be safe in terms of their continuation.

Bilingual education is considered to be one way to keep Indigenous language
and culture alive. Of the 9,581 schools that exist in Australia today, nine
schools are Bilingual schools, instructing students in their first Indigenous
language.

In 2009 the Northern Territory Government implemented a policy which makes it
mandatory for schools to begin each school day with four hours of English
literacy. The 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.

Bilingual Education or Two-Way Learning 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.

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.[101]

Bilingual schools operate in some of the most remote regions of Australia and
therefore they lack the quality education resources such as information
technology which is routinely available to urban schools. English is a foreign
language in these regions so students do not hear it spoken in their day-to-day
lives.

Bilingual schools have periodically been threatened with closure by
governments because they do not achieve national English literacy and numeracy
benchmark standards. Bilingual schools have been reducing in number over time
because of the lack of fully trained teachers and the lack of capacity to
sustain these resource-intensive programs.

Bilingual schools are resource intensive, they require 30 percent more staff
than other schools. Bilingual schools have to be able to sustain a program that
produces curricula in two languages. This means they need fully trained local
Indigenous teachers as well as English literacy teacher specialists. Books and
teaching materials need to be developed in both languages. These programs are
threatened.

In remote regions of Australia Indigenous language and culture is endangered.
An increase in the numbers of non-Indigenous people moving into remote regions
and the influence of television is eroding languages. There are concerns about
the ability of schools to reinforce Indigenous languages and culture because the
numbers of trained Indigenous teachers is declining. It is difficult for remote
Indigenous peoples to obtain teaching qualifications because of the lack of
training facilities in remote areas and the fact that potential trainee teachers
must leave family and ancestral lands to access formal education.

Mentor programs have been successful in assisting remote Indigenous teachers
to become fully qualified, but they have been phased out by government
departments in recent years. Remote mentor programs provided time release from
teaching duties for fully qualified teachers so that could spend time each week
mentoring Indigenous assistant teachers in teaching practice as well as
providing support with their academic study. The mentor program was successful
in increasing the numbers of Indigenous teachers in the Northern Territory in
the 1980s and 1990s.

11 Culture

11.1 Protection and promotion of Indigenous languages

Summary of Issue

A National Indigenous Languages Survey shows that of the original
estimated 250 Indigenous languages, only about 145 of these exist today and the
majority of these are critically
endangered.[102] The promotion and
protection of Indigenous languages and cultures is not sufficiently prioritised
by the Australian Government.

Relevance to Covenant: Article 15

The National Indigenous Languages Survey Report 2005 provides a
summary and analysis of Australia’s Aboriginal and Torres Strait Islander
languages, and assesses their status and supporting resources.

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. Of over 250 known Australian
Aboriginal and Torres Strait Islander languages, only about 145 Indigenous
languages are still spoken or partially spoken and the vast majority of these,
about 110, are in the severely and critically endangered categories. Less than
20 languages are strong and not currently on the endangered
list.[103]

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

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.

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.[104]

12 Appendix: List of Australian Human Rights Commission documents provided
to the Committee on Economic Social and Cultural Rights

Name of publication
Type of publication
No of Copies
About UsAustralian Human Rights
Commission
(2009)
Brochure
25 copies
Social Justice Report 2007/ Native Title Report
2007
CD-ROM
25 copies
‘Communities confronting family Violence’ -
Social Justice Report 2007

Community Guide
Community Guide
25 copies
Close the Gap – Campaign for Aboriginal and Torres
Strait Islander health equality by 2030
(2009)
Community Guide
25 copies
Towards a new National Indigenous Representative Body (2008)
Community Guide
1 copy
Achieving Aboriginal and Torres Strait Islander health
equality within a generation – a human rights based approach
(2005)
Report
1 copy
Preventing Crime and Promoting Rights for Indigenous
Young People with Cognitive Disabilities and Mental Health Issues
(2008)
Report
1 copy
Let’s Talk About Rights Toolkit (2009)
Toolkit
1 copy
Face the Facts 2008: Some Questions and Answers
about Indigenous Peoples, Migrants and Refugees and Asylum Seekers
(2008)
Information booklet
1 copy


[1] Note: As at 4 September 2008, the
Australian Human Rights Commission is the new name for the Human Rights and
Equal Opportunity Commission.
[2] Human Rights Committee, Concluding
Observations of the Human Rights Committee: Australia (2009) UN Doc
CCPR/C/AUS/CO/5, par 2.
[3] UN Committee on Economic Social and
Cultural Rights, Concluding Observations of the Committee on Economic, Social
and Cultural Rights: Australia (2000), U.N. Doc E/C.12/1/Add.50, par
24.
[4] Human Rights and Equal Opportunity
Commission, Same-Sex: Same Entitlements – National Inquiry into
Discrimination against People in Same-Sex Relationships: Financial and
Work-Related Entitlements and Benefits, 2007, available on the Commission
website at http://humanrights.gov.au/human_rights/samesex/index.html.
[5] Same-Sex Inquiry, section
6.7.
[6] Australian Human Rights Commission,
Sex Files: the legal recognition of sex in documents and government records,
2009, available on Commission website at http://humanrights.gov.au/genderdiversity/sex_files2009.html.
[7] Minister for Families, Community Services
and Indigenous Affairs, ‘National emergency response to protect children
in the NT’, (Media Release, 21 June 2007). At: http://www.fahcsia.gov.au/internet/minister3.nsf/content/emergency_21june07.htm (viewed 18 October 2007). The catalyst for the measures was the release of
Report of the Northern Territory Board of Inquiry into the Protection of
Aboriginal Children from Sexual Abuse, titled Ampe Akelyernemane Meke Mekarle:
‘Little Children are Sacred’.
[8] Article 2(1) and Article 26.
[9] Minister for
Families, Community Services and Indigenous Affairs, ‘National emergency
response to protect children in the NT’, (Media Release, 21 June 2007).
At: http://www.fahcsia.gov.au/internet/minister3.nsf/content/emergency_21june07.htm (viewed 18 October 2007). The catalyst for the measures was the release of
Report of the Northern Territory Board of Inquiry into the Protection of
Aboriginal Children from Sexual Abuse, titled Ampe Akelyernemane Meke Mekarle:
‘Little Children are
Sacred’.
[10] 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).
[11] The Social Justice Report 2007
is available at: http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html (viewed 22 September 2008).
[12] Human
Rights Committee, Concluding Observations of the Human Rights Committee:
Australia (2009) UN Doc CCPR/C/AUS/CO/5, par
14.
[13] Jenny Mouzos and Toni Makkai,
Women’s Experiences of Male Violence: Findings from the Australian
Component of the International Violence Against Women Survey (IVAWS) (2004).
[14] Australian Bureau of Statistics,
Personal Safety Survey, (Cat. No. 4906.0)
(2005).
[15] VicHealth, The Health Costs of
Violence: Measuring the burden of disease caused by intimate partner violence
(2004).
[16] Australian Institute of Health
and Welfare, Homeless
people in SAAP: SAAP National Data Collection annual report 2006-07
Australia
(2008) p 35. Available at http://www.aihw.gov.au/publications/index.cfm/title/10523 (viewed 6 April 2009).
[17] The Sex
Discrimination Commissioner, Elizabeth Broderick, conducted a national Listening
Tour from November 2007 to May 2008 to seek community and stakeholder feedback
on three key themes relevant to gender equality: economic independence for
women; work and family balance over the lifecycle; and freedom from
discrimination, harassment and violence. For further information see Human
Rights and Equal Opportunity Commission, What matters to Australian women and
men: Gender equality in 2008, The Listening Tour Community Report (2008).
Available at
http://www.humanrights.gov.au/sex_discrimination/listeningtour/index.html (viewed 9 February 2009).
[18] Australian
Domestic & Family Violence Clearinghouse, E-News December 2008 (2008)
Available at http://www.adfvc.unsw.edu.au/e-news/e-news%20December%202008.rtf (viewed 17 March 2009).
[19] The Commission
has made further recommendations in the area of domestic and family violence in
Aboriginal Torres Strait Islander communities. See section xxx. Further, the
Commission’s comments on sexual harassment in the workplace are at section
xxx.
[20] Please see the definition of
“violence against women” definition from the Beijing Declaration and
Platform for Action adopted by the Fourth World Conference on Women: Action for
Equality, Development and Peace, UN Doc A/CONF.177/20 (1995) .
[21] See Elizabeth Broderick,
‘Slavery in the 21st Century’, A Human Rights Challenge, speech
presented at the Australian Human Rights Commission, 16 October 2008.
[22] In February 2009, the United Nations
Office of Drugs and Crime (UNODC) reported that between 2003 and November 2008,
34 people have been charged with trafficking related offences (AFP) resulting in
eight convictions So far almost everyone who has been placed on the victim
support program has been trafficked into the sex industry. Four people have been
identified as having been trafficked for forced labour: UNODC,The Global Report
on Trafficking, (2009), 166. The Australian Federal Police states that since 1
January 2004, the TSETT has undertaken more than 150 assessments and
investigations of allegations of trafficking-related offences including slavery,
deceptive recruiting and/or sexual servitude. AFP, Annual Report 2007-2008,
(2009), p. 28.
[23] See generally Elizabeth
Broderick, ‘Slavery in the 21st Century’, A Human Rights Challenge,
speech presented at the Australian Human Rights Commission, 16 October
2008.
[24] The National Roundtable on People
Trafficking, ‘Statement of Outcomes’, October 2008, available online
at http://www.ag.gov.au/www/agd/agd.nsf/Page/PeopleTrafficking_PeopleTrafficking.
[25] The Australian Institute of
Criminology(AIC) is currently conducting research on the issue of labour
exploitation. See AIC, ‘Labour Trafficking: key concepts and
issues’, Transnational Crime Brief, No. 3,
2009.
[26]Ibid.
[27] These rights are protected by art 10
(protection of the family),art11 (right to adequate standard of living including
an adequate standard of living for himself and his family, including adequate
food, clothing and housing), art 13 (right to health) and art 13 (right to
education) of the ICESCR.
[28] Commonwealth
Anti-Trafficking Strategy, available online at
http://www.ag.gov.au/www/agd/agd.nsf/Page/People_Trafficking.

[29] Under the People Trafficking Visa
Framework a bridging visa F (BVF) may be granted to a suspected trafficking
victim who is a ‘person of interest’ in relation to trafficking
offences for a maximum of 30 days. After the expiry of BVF, if the person can be
of ongoing assistance to police a criminal justice stay visa may be issued to
allow the holder to remain in Australia for so long as they are required for the
administration of criminal justice. A holder of a CJSV who is deemed by the
Attorney-General to have made a significant contribution of a police
investigation or prosecution and who may be in danger if they are returned to
their country of origin may be offered a Witness Protection (Trafficking)
(Temporary) Visa. A holder of this visa who continues to meet its criteria for
more than two years may be offered a Witness Protection (Trafficking)
(Permanent) visa which enables them to stay in Australia permanently.
[30] For discussion in the Australian
context see Dorevitch and Foster, ‘Obstacles on the Road to Protection:
Assessing the Treatment of Sex-Trafficking Victims under Australia's Migration
and Refugee Law’, (2008) 9 Melbourne Journal of International Law 1;
Elaine Pearson, ‘Australia’ in Collateral Damage: The Impact of
Anti-Trafficking Measures on Human Rights around the World’, Global
Alliance Against Trafficking in Women, 2007; Bernadette McSherry and Miriam
Cullen, ‘The Criminal Justice Response to Trafficking in Persons:
Practical Problems with Enforcement in the Asia-Pacific Region, Global Change,
Peace & Security’, (2007) 19 Global Change Peace and Security 3,
205-220. Segrave M. “Surely Something is better than nothing? The
Australian response to the trafficking of women into sexual servitude in
Australia”, Current Issues in Criminal Justice, vol 16, no 1, 2004. The
National Roundtable on People Trafficking – Human Rights and Equal
Opportunity Commission (now the Australian Human Rights Commission) and NGO
Recommendations for changes to the trafficking visa framework (23 June
2008);
[31] See Dorevitch and Foster,
‘Obstacles on the Road to Protection: Assessing the Treatment of
Sex-Trafficking Victims under Australia's Migration and Refugee Law’,
(2008) 9 Melbourne Journal of International Law
1.
[32] The National Roundtable on People
Trafficking – Human Rights and Equal Opportunity Commission (now the
Australian Human Rights Commission) and NGO Recommendations for changes to the
trafficking visa framework (23 June
2008).
[33] The National Roundtable on
People Trafficking, NGO Guidelines for Working with Trafficked People, 2008,
available online at http://www.ag.gov.au/www/agd/agd.nsf/Page/People_Trafficking.
[34] In May 2007, The Age newspaper
reported that ‘[a] former child sex slave has become the first person in
Australia to be compensated as a victim of sex trafficking’. The award was
actually made under the Victims Support and Rehabilitation Act 1996 (NSW) and
the women, Ms Chaladone, who was trafficked to Australia in 1995 when she was
13, claimed compensation as a victim of sexual assault, not a victim of
trafficking. Natalie Craig, ‘Sex slave victim wins abuse claim –
EXCLUSIVE - ‘It still hurts to talk about it ... I have been
depressed’, The Age, 29 May 2007. For discussion of another effort to
obtain compensation in a trafficking case see Julie Lewis, ‘Out of the
Shadows’, Law Society Journal 17, February
2007.
[35] See further Elizabeth Broderick,
‘Slavery in the 21st Century’, A Human Rights Challenge, speech
presented at the Australian Human Rights Commission, 16 October
2008.
[36] Jonathon Pearlman, Rights Charter
to Vindicate Victims’, Sydney Morning Herald, 7 February
2008.
[37] Fiona David notes the Proceeds of
Crime Act 2002 (Cth) has been used to restrain the alleged proceeds of
trafficking in persons in at least one Australian prosecution (see, for example,
Commonwealth DPP v Xu [2005] NSWSC 191). See Fiona David, ‘Prosecuting
trafficking in persons: known issues, emerging response’, Australian
Institute for Criminology, Trends and Issues in Criminal Justice, no.358, June
2008.
[38] Crimes Act 1914 (Cth) s 21(1)
(c).
[39] Trafficked people may also be
able to make claims for unpaid wages or occupation health and safety and workers
compensation under workplace place relations laws. See Elaine Pearson,
‘Australia’ in Collateral Damage: The Impact of Anti-Trafficking
Measures on Human Rights around the World’, Global Alliance Against
Trafficking in Women, 2007.
[40] Human
Rights Committee, Concluding observations: Australia, 24/07/2000UN Doc A/55/40,
paras.498-528. At http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/e1015b8a76fec400c125694900433654?Opendocument.
[41] See Common Core Document, par 230. International Covenant on Civil and Political
Rights, arts 2, 8.
[42] See Australian Human
Rights Commission, Submission to the Senate Legal and Constitutional References
and Legislation Committee Inquiry into Stolen Wages (2006), pars
13-24.
[43] The report is available at http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/report/index.htm (viewed 23 September 2008).
[44] See Common
Core Document, pars 365-368. ICCPR, art
24.
[45] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 2007,
p116.
[46] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Ending family violence and abuse in
Aboriginal and Torres Strait Islander communities: Key issues (2006), pp5-6. See
also Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, pp 194-95.
[47] Human
Rights and Equal Opportunity Commission, Sexual harassment: Serious business,
Results of the 2008 Sexual Harassment National Telephone Survey (2008).
Available at http://www.humanrights.gov.au/sexualharassment/serious_business/index.html (viewed 6 April 2009).
[48] Human Rights
and Equal Opportunity Commission, Sexual harassment: Serious business, Results
of the 2008 Sexual Harassment National Telephone Survey (2008). Available at http://www.humanrights.gov.au/sexualharassment/serious_business/index.html (viewed 6 April 2009).
[49] For further
information please see Human Rights and Equal Opportunity Commission, Submission
to the Senate Legal and Constitutional Affairs Committee Inquiry into the
effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating
discrimination and promoting gender equality (2008) (‘SDA Submission
(2008)’) . At http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 6 February 2009).
[50] Ross Clare,
Retirement Savings Update (2008) p 3. Available at http://www.superannuation.asn.au/Reports/default.aspx (viewed 11 February 2009).
[51] UN Committee
on Economic, Social and Cultural Rights (CESCR), General Comment 19: The Right
to Social Security, E/C.12/GC/19
(2007).
[52] Ross Clare, Retirement Savings
Update (2008) p 3. Available at http://www.superannuation.asn.au/Reports/default.aspx (viewed 11 February 2009).
[53] This
includes: working age couple with no children; working age couple with children;
working age lone female; working age lone male; lone mother household; elderly
couple household; elderly lone male; elderly lone female.
[54] The poverty measurement tool for this
study is 50% of the median income poverty line. Bruce Heady and Diana Warren,
Families, Incomes and Jobs, Volume 3: A Statistical Report on Waves 1 to 5 of
the HILDA Survey (2008) p.55. Available at http://www.melbourneinstitute.com/hilda/statreport/statreport-v3-2008.pdf (viewed on 9 February 2009).
[55] Robert
Tanton, Yogi Vidyattama, Justine McNamara, Quoc Ngu Vu and Ann Harding, Old
Single and Poor: Using Microsimulation and Microdata to Analyse Poverty and the
Impact of Policy Change Among Older Australians (2008) p 15. Available at https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880 (viewed 9 February 2009).
[56] For further
information see Human Rights and Equal Opportunity Commission, What matters to
Australian women and men: Gender equality in 2008, The Listening Tour Community
Report (2008). Available at http://www.humanrights.gov.au/sex_discrimination/listeningtour/index.html (viewed 9 February 2009).
[57] Australian
Human Rights Commission, Submission to Australia’s Future Tax System
(Retirement Income System) (2009). Available at http://www.humanrights.gov.au/legal/submissions/2009/20090227_tax.html (viewed 6 April 2009).
[58] UN Committee on
Economic Social and Cultural Rights, Concluding Observations of the Committee on
Economic, Social and Cultural Rights: Australia (2000), U.N. Doc
E/C.12/1/Add.50, par 25.
[59] Note that in
the United States, whilst there is no federal statutory entitlement to paid
maternity leave, the large states of California and New York State have each
introduced statutory entitlements to paid parental
leave.
[60] See Human Rights and Equal
Opportunity Commission, Submission to the Productivity Commission’s
Inquiry into Paid Maternity Leave, Paternity Leave and Parental Leave (June
2008). Go to http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html.
[61] Productivity Commission, Paid Parental
Leave: Support for Parents with Newborn Children Draft Report (September 2008).
Go to http://www.pc.gov.au/projects/inquiry/parentalsupport/draft.
[62] Human Rights and Equal Opportunity
Commission, Submission to the Productivity Commission’s Inquiry into Paid
Maternity Leave, Paternity Leave and Parental Leave (November 2008). Go to http://www.humanrights.gov.au/legal/submissions/2008/20081124_maternity.html.
[63] World Economic Forum, Global Gender
Gap Report 2008. Go to http://www.weforum.org/en/Communities/Women%20Leaders%20and%20Gender%20Parity/GenderGapNetwork/index.htm.
[64] Australian Bureau of Statistics,
Average Weekly Earnings, August 2008, Cat no. 6302.0 (2008). Available at http://www.abs.gov.au/ausstats/abs@.nsf/mf/6302.0/ (viewed
23 February 2009).
[65] Department of
Education, Employment and Workplace Relations, Submission to the House of
Representatives Standing Committee on Employment and Workplace Relations
On
Pay Equity and Associated Issues Related to Increasing Female Participation in
the Workforce (2008). Available at http://www.aph.gov.au/house/committee/ewr/payequity/subs/sub58.pdf (viewed 23 February 2009).
[66] Equal
Opportunity for Women in the Workplace Agency, Gender Income Distribution of Top
Earners in ASX200 Companies, 2006 EOWA Census of Women in Leadership, 25 January
2007. Available at http://www.eowa.gov.au/Australian_Women_In_Leadership_Census/2006_Australian_Women_In_Leadership_Census/Top_Earner_Report/Media_Kit.asp (viewed 23 February 2009).
[67] Australian
Human Rights Commission, Submission to House of Representatives Inquiry into Pay
Equity (September 2008). Go to http://www.humanrights.gov.au/legal/submissions/2008/20080923_pay_equity.html.
[68] Senate Committee on Legal and
Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984 in
eliminating discrimination and promoting gender equality (2008). Go to http://www.aph.gov.au/SEnate/committee/legcon_ctte/sex_discrim/report/index.htm.
[69] Native Title Act 1993 (Cth),
Preamble.
[70] Bodney v Bennell [2008] FCAFC
63, 89 (Finn, Sundberg and Mansfrield JJ); affirming Risk v Northern Territory
of Australia [2006] FCA 404, 97(c) (Mansfield
J).
[71] See Members of the Yorta Yorta
Aboriginal Community v Victoria [2002] HCA 58, 25-26 (Gleeson CJ, Gummow and
Hayne JJ) for the High Court's comments on the Full Federal Court's
consideration of 'traditional'. See also paragraphs 44, 78-89 of that decision
for what level of adaptation of traditional law and custom is allowed for in the
law. See Native Title Reports 2007, pp 178- 181 and Native Title Report 2008, pp
87-88 for commentary on the limitations of the the Native Title Act to recognise
or allow for revitalisation of culture, and limited adaptation of cultural
traditions. See also M Barcham, ‘The limits of recognition’ in B
Smith and F Morphy (eds), The social effects of native title: recognition,
translation, coexistence (2007) and S Young, The trouble with tradition (2008).
See Chief Justice Robert French, ‘Lifting the burden of native title
– some modest proposals for improvement’ Federal Court, Native Title
User Group, Adelaide, 9 July 2008, copy available at: http://www.fedcourt.gov.au/aboutct/judges_papers/speeches_frenchj35.rtf for comments on revitalisation of culture.
[72] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 2007, Australian Human
Rights Commission (2008), pp 24-27.
[73] R
McClelland, Attorney-General, Correspondence to T Calma, Aboriginal and Torres
Strait Islander Social Justice Commissioner, Australian Human Rights Commission,
11 September 2008.
[74] Committee on the
Elimination of Racial Discrimination, Concluding Observations: Australia (2005),
UN Doc CERD/C/AUS/CO/14, par 16. At: http://www.humanrights.gov.au/legal/submissions/cerd/report.html (viewed 24 March 2009).
[75] NTNER Act,
s37(1)(a).
[76] NTNER Act, s37(1)(a).
[77] Wurridjal v The Commonwealth of
Australia
[2009] HCA 2 (2 February 2009)
[78] NTNER Act s51(2). The
non-extinguishment principle is set out in s 238 Native Title Act 1993 (Cth). In
essence, where the non-extinguishment principle is said to apply then if the act
affects any native title in relation to the land or waters concerned the native
title is nevertheless not extinguished, either wholly or partly by the
act.
[79] NTNER s51(1). Provides that Part
2, Division 4 of the Native Title Act 1993 (Cth) which deals with future acts,
does not apply. A ‘future act’ is an act (‘act’ is
defined in s226 of the Native Title Act) which affects native title (or would
affect native title if it were valid) and: consists of the making, amendment or
repeal of legislation which takes place on or after 1 July 1993; or is any other
act taking place on or after 1 January
1994.
[80] Native Title Act 1993 (Cth), s28.
See T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner,
Native Title Report 2007, Australian Human Rights Commission (2008), p 201. At: http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html.
[81] ABS, The Health and Welfare of
Australia’s Aboriginal and Torres Strait Islander Peoples,
p46.
[82] ABS, The Health and Welfare of
Australia’s Aboriginal and Torres Strait Islander Peoples,
p47.
[83] Miloon Kothari, Report of the
Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living, Addendum - Mission to Australia (31 July to 15
August 2006), U.N. Doc. A/HRC/4/18/Add.2, 11 May 2007, para 80, available
at: 
http://daccessdds.un.org/doc/UNDOC/GEN/G07/125/72/PDF/G0712572.pdf?OpenElement.
[84] The CESCR 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”: CESCR, General Comment 4: The right to adequate housing, para
8(g).
[85] The Minister has the discretion
to release people on visas. He or she also has the power to place detainees into
community detention on Residence Determinations or into alternative detention
arrangements.
[86] Australian Human Rights
Commission, 2008 Immigration detention report: Summary of observations following
visits to Australia’s immigration detention facilities, 2008, at www.humanrights.gov.au/human_rights/immigration/idc2008.html.
[87] See, for example A last resort, note
9, chapter 9.
[88] See Human Rights and
Equal Opportunity Commission’s 2006 and 2007 Summary of Observations
following the inspection of Mainland Immigration detention Facilities; A last
resort? : National Inquiry into Children in Immigration detention, 2004; and
Those who’ve come across the seas, 1997.
[89] 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).

[90] The Close the Gap Campaign partners
are: Australian General Practice Network; Australian Human Rights Commission;
Australian Indigenous Doctors’ Association; Australian Medical
Association; Australians for Native Title and Reconciliation; Congress of
Aboriginal and Torres Strait Islander Nurses; Cooperative Research Centre for
Aboriginal Health; Fred Hollows Foundation; Heart Foundation; Indigenous
Dentists’ Association of Australia; Menzies School of Health Research;
National Aboriginal Community Controlled Health Organisation; Oxfam Australia;
Royal Australasian College of Physicians; Royal Australian College of General
Practitioners; and Torres Strait Island and Northern Peninsula District Health
Service.
[91] Close the Gap National Indigenous
Health Equality Summit Statement of Intent, 20 March 2008
http://humanrights.gov.au/social_justice/health/statement_intent.html.
[92] Dr Mick Adams, Chair, National
Aboriginal Community Controlled Health Organisation; Associate Professor Dr Noel
Hayman, Indigenous Health Committee of the Royal Australasian College of
Physicians; and Dr Ngiare Brown, then at the Menzies School of Health
Research.
[93] The following assisted with the
creation of the targets -- Dr Christopher Bourke, Indigenous Dentists’
Association of Australia; Ms Vicki Bradford, Congress of Aboriginal and Torres
Strait Islander Nurses; Mr Tom Brideson, Charles Sturt University’s
Djirruwang Aboriginal and Torres Strait Islander mental health program; Dr David
Brockman, National Centre in HIV Epidemiology and Clinical Research; Dr Alex
Brown, Baker IDI Heart and Diabetes Institute; Professor Jonathon Carapetis,
Menzies School of Health Research; Dr Alan Cass, The George Institute for
International Health; Professor Anne Chang, The Queensland Centre for Evidence
Based Nursing and Midwifery; Dr Margaret Chirgwin, National Aboriginal Community
Controlled Health Organisation; Dr John Condon, Menzies School of Health
Research; Mr Henry Councillor, former National Aboriginal Community Controlled
Health Organisation; Dr Sophie Couzos, National Aboriginal Community Controlled
Health Organisation; Professor Sandra Eades, Sax Institute; Ms Dea Delaney
Thiele, National Aboriginal Community Controlled Health Organisation; Mr Mick
Gooda, Cooperative Research Centre for Aboriginal Health; Dr Sally Goold OAM,
Chair, Congress of Aboriginal and Torres Strait Islander Nurses; Ms Mary
Guthrie, Australian Indigenous Doctors’ Association; Associate Professor
Colleen Hayward, Kulunga Research Network and Curtin University; Ms Dawn
Ivinson, Royal Australasian College of Physicians; Dr Kelvin Kong, Australian
Indigenous Doctors’ Association; Dr Marlene Kong, Australian Indigenous
Doctors Association; Mr Traven Lea, Heart Foundation; Dr Tamara Mackean,
Australian Indigenous Doctors’ Association; Dr Naomi Mayers, National
Aboriginal Community Controlled Organisation; Mr Romlie Mokak, Australian
Indigenous Doctors’ Association; Professor Helen Milroy, Associate
Professor and Director for the Centre for Aboriginal Medical and Dental Health;
Professor Kerin O’Dea, Menzies School of Health Research; Dr Katherine
O’Donoghue, Indigenous Dentists’ Association of Australia; Ms Mary
Osborn, Royal Australasian College of Physicians; Professor Paul Pholeros AM,
University of Sydney; Professor Ian Ring, Professorial Fellow, Faculty of
Commerce, Centre for Health Services Development, University of Wollongong;
Professor Fiona Stanley AC, Telethon Institute for Child Health Research;
Professor Paul Torzillo AM, Department of Respiratory Medicine, Royal Prince
Alfred Hospital; Dr James Ward, Collaborative Centre for Aboriginal Health
Promotion; Ms Beth Warner, Royal Australasian College of Physicians; Associate
Professor Ted Wilkes, National Indigenous Drug and Alcohol Committee of the
Australian National Council on Drugs; and Dr Mark Wenitong, Australian
Indigenous Doctors’ Association.
[94] Prime Minister, Kevin Rudd MP, Apology
to Australia’s Indigenous Peoples, 13 February
2008.
[95] Aboriginal and Torres Strait
Islander Social Justice Commissioner and the Close the Gap Steering Committee
for Indigenous Health Equality for Indigenous Health Equality for Indigenous
Health Equality National Indigenous Health Equality Targets, Human Rights and
Equal Opportunity Commission, Sydney, 2008., p22. Available online at: http://humanrights.gov.au/soial_justice/health/targets/index.html.
[96] A Fordham, R Schwab, Summarising: Fordham, Preliminary analyses of access to
education and discrete Indigenous communities in Australia, Reference No. 48,
Centre for Aboriginal Economic Policy Research (2006). At http://www.anu.edu.au/caepr/educationfutures/ref048.pdf (viewed 18 September 2008). Data Source: ABS 2006 Community Housing and
Infrastructure Needs Survey (CHINS) of Aboriginal and Torres Strait Islander
communities
[97] Australian Bureau of
Statistics, 4705.0 - Population Distribution, Aboriginal and Torres Strait
Islander Australians, 2006. At http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4705.0Main+Features12006?OpenDocument (viewed 19 January 2009).  
[98] Measuring Remoteness: Accessibility/Remoteness Index of Australia (ARIA),
Revised Edition, Occasional Papers: New Series Number 14, (2001), p. 19 At http://www.health.gov.au/internet/main/publishing.nsf/Content/7B1A5FA525DD0D39CA25748200048131/$File/ocpanew14.pdf (viewed 21 September 2008).
[99] 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 20 March 2009).
[100] Human Rights
and Equal Opportunity Commission, Education Access, National Inquiry into Rural
and Remote Education, 2000, p. 70
[101] Department of Employment, Education and Training, Northern Territory Government,
Indigenous Languages and Culture in Northern Territory Schools Report 2004
– 2005, pp. 34-37
[102] Australian
Institute of Aboriginal and Torres Strait Islander Studies in association with
the Federation of Aboriginal and Torres Strait Islander Languages, National
Indigenous Languages Survey Report 2005, Australian Government Publication, p. 4
At: http://www.arts.gov.au/__data/assets/pdf_file/0006/35637/NILS_Report_2005.pdf viewed 16 April 2009.
[103]Australian
Institute of Aboriginal and Torres Strait Islander Studies in association with
the Federation of Aboriginal and Torres Strait Islander Languages, National
Indigenous Languages Survey Report 2005, Australian Government Publication, p. 4
At: http://www.arts.gov.au/__data/assets/pdf_file/0006/35637/NILS_Report_2005.pdf viewed 16 April 2009.
[104] For further
information, President of Australian Human Rights Commission, Presentation on
the legal protection of Indigenous Cultural and artistic works. At: http://www.humanrights.gov.au/about/media/speeches/speeches_president/2006/20060901_Malaysia.html (viewed 23 September 2008).