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Updated information from the Australian Human Rights Commission on Australia’s implementation of the ICCPR (2009)

Legal Legal
Friday 14 December, 2012

Updated information from the Australian Human Rights Commission on Australia’s implementation of the ICCPR

Australian Human Rights Commission

18 February 2009


Ms Nathalie Prouvez
Secretary of the Human Rights Committee
Human Rights Treaties Branch
Office of the High Commissioner for Human Rights
CH-1211 Geneva 10
Switzerland

Dear Ms Prouvez,

Updated information from the Australian Human Rights Commission on
Australia’s implementation of the ICCPR

Thank you for the opportunity to provide the Human Rights Committee with some
additional material in preparation for Australia’s appearance before the
Committee in March 2009.

Please find attached some updated information on some of the issues raised in
our comments to the Committee in September 2008.

We also welcome your suggestion of an informal briefing session for available
members of the Committee by the Australian Human Rights Commission (the
Commission), prior to Australia’s appearance. While we are unable to
attend the scheduled appearance in New York, Elizabeth Broderick, the Australian
Sex Discrimination Commissioner, and Cassandra Goldie, the Director of the Sex
Discrimination Unit at the Commission will be attending the Commission on the
Status of Women in New York. Commissioner Broderick will be attending from the
1st to the 6th March 2009. Dr Goldie will be attending from the
1st to the 14th March. They would be available for an
informal meeting with the Committee members during this period, should this be
convenient.

Australian Human Rights Act

The Commission welcomes the Committee’s question, in its List of
Issues, on implementing the protection of human rights at the federal level in
Australia

On 9 December, the Australian Government announced a National Human Rights
Consultation, to be conducted by an independent Committee. The Committee is
expected to report to the Australian Government by 31 August 2009.The Committee
is asking for submissions from the public, and will also hold a series of forums
across Australia. The Committee will ask 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?

Full details about the National Human Rights Consultation
can be found on 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. However, the Commission notes that the consultation terms of
reference exclude consideration of ‘a constitutionally entrenched bill of
rights’.

As discussed in our comments to the Committee in September 2008 (1.1), 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 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 on its website at http://humanrights.gov.au/letstalkaboutrights/index.html.

Immigration detention

The Commission has outlined its concerns with Australia’s system of
mandatory immigration detention in comments to the Committee in September (4.1).
While the Commission welcomes the announcement by the Minister for Immigration
in July 2008 of new directions in immigration detention policy, we are concerned
that these changes have yet to be implemented and guaranteed in legislation.

The Commission wishes to draw to the Committee’s attention its recently
published annual report of visits for the previous year, 2008 Immigration
Detention Report: Summary of observations following visits to Australia’s
immigration detention facilities
. The Committee’s List of Issues
refers to recommendations made by the Commission following inspections to
immigration detention facilities in 2007 (issue 18). While many of these
recommendations are still relevant, the 2008 Report provides more up-to-date and
comprehensive observations and recommendations on conditions in immigration
detention facilities and the system of immigration detention more generally.
Major recommendations in the report include that:

  • minimum standards for conditions and treatment of persons in immigration
    detention should be legislated
  • the Migration Act should be amended so that immigration detention is the
    exception rather than the norm and the decision to detain a person is subject to
    prompt review by a court
  • detention of people on Christmas Island should cease
  • the recommendations of the national inquiry into children in immigration
    detention should be implemented by the government.

The 2008 Report
is available on our website at http://humanrights.gov.au/about/media/media_releases/2009/2_09.html.

Paid maternity leave

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

The Commission has previously welcomed the Australian Government reference to
the Productivity Commission (the Australian Government's independent research
and advisory body on a range of economic, social and environmental issues
affecting the welfare of Australians) to investigate the introduction of Paid
Maternity, Paternity and Parental Leave.

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). A final report will be released in February 2009.

However, 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 41st in the world, behind
the UK, New Zealand and Canada. Paid maternity leave is an important measure to
improve the ability of women to participate in paid work.

Federal Age Discrimination Act

The Australian Government is to be congratulated for introducing into the
Australian Parliament a proposed amendment to the Age Discrimination Act
2004
(Cth) to remove the ‘dominant reason’ test from this
equality law.

At the present time, this bill is before Parliament, with the Senate Legal
and Constitutional Committee to report with its recommendations regarding the
amendment by 23 February 2009.

Independent Reviewer of anti-terrorism laws

The Commission notes that in the List of Issues the Committee refers to the
need for an Independent Reviewer of anti-terrorism laws.

In November 2008, the Clarke Inquiry into the case of Dr Mohamed Haneef
recommended that the Australian Government give consideration to the appointment
to an independent reviewer of anti-terrorism
laws.[1] The Australian
Government’s response to this recommendation was to confirm its
in-principle support for the appointment of an independent reviewer in the form
of a National Security Legislation Monitor.[2]

However, an independent reviewer of anti-terrorism laws has not yet been
appointed by the Australian Government.

National Indigenous Representative Body

In July 2008, the Aboriginal and Torres Strait Islander Social Justice
Commissioner released an issues paper setting out key considerations for the
establishment of a new National Indigenous Representative
Body.[3] Such a body is needed to
overcome the problem of lack of participation of Indigenous peoples in decision
making that affects their
interests.[4]

The Australian government utilised this issues paper as the basis of national
consultations commencing in July 2008 through to October
2008.[5] These consultations found
agreement among Indigenous peoples on the need for a national representative
body to be created.

In December 2008, the Minister for Families, Housing, Community Affairs and
Indigenous Affairs, the Hon Jenny Macklin, wrote to the Social Justice
Commissioner requesting that he establish an independent Steering Committee to
convene a second stage of consultations for the establishment of a new national
Indigenous representative body.
The Steering Committee is required to:

  • convene an Indigenous Peoples Workshop in March 2009, with a possible second
    workshop in June 2009
  • develop a preferred model for a new National Indigenous Representative Body
    for presentation to the Australian Government in July 2009
  • make recommendations in regards to the establishment of an interim body from
    July 2009 which would operate until the finalised body takes effect, and
  • ensure strong community support for such a representative model.

The Steering Committee is now finalising preparations for the first
workshop to be held on 11-13 March 2009.

The Steering Committee will make a recommendation to the Australian
Government in July 2009 on the model for a new national Indigenous
representative body. In the Commission’s view, the participatory nature of
this process is to be commended and contributes to the realisation of Indigenous
Peoples rights consistent with articles 1, 2, 26 and 27 of the ICCPR.

Northern Territory Emergency Intervention

The Social Justice Report 2007 to the Australian Parliament provides a
detailed analysis of the Northern Territory Emergency Response (NTER or NT
intervention).[6] This includes
identification of how the NTER is inconsistent with Australia’s
human rights obligations under the ICCPR, CERD and other instruments.’

Since this report was released:

  • The Australian Government has established the National Council to Reduce
    Violence against Women and their Children (the ‘Council’) on 26 May
    2008, with responsibility to oversee the Government's commitment to establish
    and implement the National Plan to Reduce Violence against Women and their
    Children
    (the ‘Plan’).
  • The Minister for Families, Housing, Community Services and Indigenous
    Affairs introduced a Bill in federal Parliament in February
    2008[7] to reinstate aspects of the
    permit systems for entry onto Aboriginal land that had been removed under the NT
    Intervention. The Bill proposes to remove the provisions enacted by the former
    Government under the NTER legislation, but retain the capacity of the
    Commonwealth Minister to permit selected individuals or classes of individuals
    to enter any specified Indigenous land without a permit. However, the Senate did
    not pass the Bill and voted in support of retaining the existing measures that
    are not compliant with the Racial Discrimination Act 1975 (Cth)
    (RDA).[8]
  • The Australian Government has confirmed it will maintain the mandatory
    income management scheme under the NT Intervention, but that it will look to
    revise the scheme to ensure it will conform with the RDA and will not involve
    suspension of the RDA in the long
    term.[9] It stated that legislation to
    effect this would be introduced in the sittings of Parliament in September 2009.
    Until such time, the RDA continues to be inoperative in relation to communities
    in the Northern Territory subject to the NT intervention legislation, in breach
    of Australia’s obligations under the ICCPR and CERD.

In addition, the government has also introduced the following new
income management schemes under the NT Intervention
legislation:[10]

  • The Family Responsibilities Commission (FRC) commenced in Queensland on 1
    July 2008.[11] The FRC has the power
    to recommend Indigenous and non-Indigenous individuals who have lived in the
    designated areas of Hope Vale, Aurukun, Mossman Gorge, and Coen for three
    months, who are recipients of a welfare payment or are CDEP participants,
    and who aren’t meeting parental and community
    responsibilities,[12] for income
    management. Although the majority of people subject to the FRC are Indigenous,
    the application of Part II of the RDA is suspended for the FRC, which
    includes the operative provisions prohibiting racial discrimination. However,
    unlike the mandatory income management scheme in the Northern Territory, under
    the FRC, income management is a measure of last resort and only applies to
    identified individuals, rather than automatically applying to everyone within
    the designated areas.
  • Trial income management scheme - Kununurra and Cannington - commenced in
    Western Australia (WA) on 24 November
    2008.[13] Under the scheme up to 70%
    of welfare payments and 100% of lump sum payments can be quarantined from
    parents whose children are considered at risk. Like the Queensland scheme, the
    WA trial is a measure of last resort and only applies to identified individuals,
    rather than to everyone within the trial site. However, it differs from the
    other schemes identified above in that at least one of the trial sites is not
    predominantly populated by Indigenous peoples and it is subject to the
    protections of the RDA.

The Australian Government has indicated that it will be drawing on
the findings of each of the three income management models to implement broader
welfare reforms, possibly within 12 months. It is hoped that the further welfare
reforms will ensure they are consistent with human rights standards.

A formal, independent review of the NTER legislation and its operation has
been conducted by a Review Board. The Review Board’s report, released in
October 2008, found that the NT Intervention had made some positive changes in
the Northern Territory, for instance in terms of increased police presence in
communities, measures to reduce alcohol-related violence, improving quality and
availability of housing, health and wellbeing of communities and education.
However, the Review Board noted that the NT Intervention had in many respects
not succeeded because it had failed to engage with the very people it was
intended to help. The Review Board noted that local communities saw the
significant government investment under the NT Intervention as ‘an
historic opportunity wasted because of its failure to galvanise the partnership
potential of the Aboriginal
community’.[14] The inclusion
of racially discriminatory measures in the NTER was also seen as a significant
failure that contributed to a lack of faith and trust from Indigenous peoples in
the Australian Government’s approach.

The three overarching recommendations made by the Review Board were:

  • The Australian and Northern Territory Governments recognise as a matter of
    urgent national significance the continuing need to address the unacceptably
    high level of disadvantage and social dislocation being experienced by
    Aboriginal Australians living in remote communities throughout the Northern
    Territory.
  • In addressing these needs both governments acknowledge the requirement to
    reset their relationship with Aboriginal people based on genuine consultation,
    engagement and partnership.
  • Government actions affecting Aboriginal communities respect
    Australia’s human rights obligations and conform to the
    RDA.[15]

In addition the
Review Board made recommendations in relation to: welfare reform, employment,
law and order, education, family support, health, housing, land reform,
coordination, re-engagement, funding, governance, data and evaluation.

On 23 October 2008, the federal government issued an Initial Response to the
Review Board’s report,[16] outlining the Australian Government’s intention to continue the current
stabilisation phase of the NTER for the next twelve months before transitioning
to a long-term, development phase. The Australian Government stated that it
agreed with the Report’s three overarching recommendations and will act on
them in progressing towards the development phase of the Intervention.

The key elements of the stabilisation phase identified in the
Minister’s statement included:

  • maintaining compulsory income management, the five-year leases, and alcohol
    and pornography controls
  • legislating in the first half of 2009 to ensure people subject to the NT
    income management regime have access to the full range of appeal mechanisms
    afforded to other Australians, including through the Social Security Appeals
    Tribunal and the Administrative Appeals Tribunal
  • asking the NT Valuer-General to determine a reasonable rent for all existing
    five-year leases and payment commencing automatically; and examining the scope
    to reduce the current boundaries of five-year leases
  • negotiating with traditional owners for long term leases to continue. This
    is to ensure that beneficial activities already under way, in particular, the
    Australian Government’s $547 million investment in new housing, housing
    upgrades and reformed tenancy arrangements, can be progressed.

The
elements of the transition period between the stabilisation phase and the
development phase are:

  • the ongoing development and implementation of our policies to close the gap
    on Indigenous disadvantage
  • an immediate, renewed emphasis on community engagement and development to
    build the foundations for more lasting change
  • the Australian Government designs and consults on a new compulsory income
    management policy which does not involve the suspension of the RDA. These
    consultations will acknowledge that not all welfare recipients are unable to
    manage their finances in the interests of dependent women and
    children.

The commencement of the development phase will be marked
by the introduction of legislation to lift the suspension of the RDA in the
Spring 2009 sittings of the Parliament.

However, beyond this initial commitment made in October 2008, the Australian
Government has issued no further detailed response addressing the majority of
recommendations of the report. The NTER legislation remains inconsistent with
Australia’s human rights obligations and protection against racial
discrimination remains suspended indefinitely.

Removal of laws which discriminate against same-sex couples

In its 2006 report ‘Same-Sex: Same Entitlements,’ the Commission
recommended that the Australian Government amend 58 laws which discriminate
against same-sex couples and their children in the area of financial and
work-related entitlements and benefits. In the week of 24 November 2008, the
Australian Parliament passed the two remaining bills to remove discrimination
against same-sex couples in most Commonwealth laws:

  • Same-Sex Relationships (Equal Treatment in Commonwealth Laws –
    Superannuation) Bill 2008
  • and the omnibus bill, the Same-Sex Relationships (Equal Treatment in
    Commonwealth Laws – General Reform) Bill 2008.

The Commission
welcomes the reforms.

However, the Commission draws to the Committee’s attention 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.

I hope that this updated information is useful for the Committee’s
consideration of Australia’s 5th periodic report to the Committee. Please
do not hesitate to contact Susan Newell, Acting Director, Human Rights Unit at Susan.Newell@humanrights.gov.au should you require further detail.

Yours sincerely,

 

Graeme Innes AM
Human Rights Commissioner

 


[1]Report of the Inquiry into
the Case of Dr Mohamed Haneef, November 2008
, p xii. At http://www.haneefcaseinquiry.gov.au/www/inquiry/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Volume+1+FINAL.pdf/$file/Volume+1+FINAL.pdf (accessed 10 February 2009).
[2]Australian Government Response to the Clarke Inquiry into the case of Dr
Mohamed Haneef
, 23 December 2008. At http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_AustralianGovernmentresponsetoClarkeInquiryintotheCaseofDrMohamedHaneef-December2008 (accessed 10 February 2009).
[3] Available online at:
http://humanrights.gov.au/social_justice/repbody/index.html.
[4] The Social Justice Commissioner has extensively reported on this problem in
annual reports to the Australian Parliament. See further; Social Justice
Report 2006
, chapters 2 and 3. Available online at:
http://humanrights.gov.au/social_justice/sj_report/index.html.
[5] Information about this process is available online at: http://www.fahcsia.gov.au/internet/facsinternet.nsf/indigenous/advertisment_indig_rep_body.htm.
[6] Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 2007, Human
Rights and Equal Opportunity Commission
(2007)
[7] Families, Housing,
Community Services and Indigenous Affairs and Other Legislation Amendment
(Emergency Response Consolidation) Bill
2008.
[8] See Social Justice
Report 2007
, p 263.
[9] Commonwealth Government, Statement: ‘Australian Government Initial
Response to the NTER Review’ (23 October 2008).
[10]Social Security and
Other Legislation Amendment (Welfare Payment Reform) Act
2007

[11] The Family
Responsibilities Commission was established by legislation (Family
Responsibilities Act 2008
(QLD)) that is authorised by the same legislative
provisions as the income management regime of the Northern Territory
Intervention.
[12] For instance
in situations where: a child has three unexplained absences from school; a
person is subject to a child safety notification or report; or is convicted of
an offence; or breaches a public housing tenancy agreement.
[13] The WA Welfare trials were
introduced under the Social Security and Other Legislation Amendment (Welfare
Payment Reform) Act 2007
(Cth).
[14] Northern Territory
Emergency Review Board, Northern Territory Emergency Response: Report of the
NTER Review Board
, Commonwealth of Australia (2008), p
10.
[15] Northern Territory
Emergency Review Board, Northern Territory Emergency Response: Report of the
NTER Review Board
, Commonwealth of Australia (2008), p
12.
[16] Commonwealth Government,
Statement: ‘Australian Government Initial Response to the NTER
Review’ (23 October 2008).