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Monitoring and reporting on laws and policy - Annual Report 2009-2010: Australian Human Rights Commission

The year in review

Monitoring and reporting on laws and policy

The Commission assesses compliance with human rights principles by examining and reporting on issues of race, age, sex and disability discrimination and human rights. In doing so, we play a significant role in the monitoring of legislation and policy in Australia.

We assess legislative and policy proposals and make submissions to governments, law reform bodies and parliamentary committees. These submissions, many of which identify breaches or potential breaches of human rights in existing and proposed legislation, contribute to policy development and review of laws.

They also play an important role, too, in generating public debate and an awareness of human rights. We make them available on our website for reference by governments, politicians, lawyers, academics, journalists, students and other individuals who have an interest in human rights issues.

To access these submissions please visit For more information about the process whereby federal legislation is made, refer to the Parliament of Australia website at

Monitoring Aboriginal and Torres Strait Islander social justice and native title

A state-of-the-nation review of progress on Indigenous policy and human rights compliance is provided annually by the Social Justice Report and Native Title Report.

Social Justice Report

Social Justice Report cover

Under the Australian Human Rights Commission Act, the Aboriginal and Torres Strait Islander Social Justice Commissioner is required to report annually to the Attorney-General about the exercise and enjoyment of human rights by Australia’s Indigenous peoples. The Social Justice Report fulfils this obligation, and is tabled in Parliament each year.

The Social Justice Report allows the Commissioner to make recommendations about action that should be taken to ensure such rights are upheld and maintained and is a key tool in raising the profile of these issues and furthering understanding with government and other service providers. The Social Justice Report influences the way governments engage with Aboriginal and Torres Strait Islander communities, particularly with regard to service delivery and legislative and policy change (for example, the Social Justice Report 2005 resulted in the Close the Gap Campaign.)

In essence, the Social Justice Report 2009 focused on the need for strong communities. It canvassed justice reinvestment, a new idea which originated in the United States, as a solution to the appalling over-representation of Indigenous people in the criminal justice system by reinvesting money in crime prevention to keep people from particular communities out of prison.

It looked at the perilous state of our critically endangered Indigenous languages, arguing that the protection of language and culture will serve as the glue that will keep communities together. It examined the homelands movement of the Northern Territory as an example of successful Aboriginal community development, governance and self-determination that should be supported.

Justice reinvestment: Nationally, Indigenous adults are 13 times more likely to be imprisoned than non-Indigenous people and Indigenous juveniles are 28 times more likely to be placed in juvenile detention than their non-Indigenous counterparts. Indigenous imprisonment has increased by 48% since 1996.

As a strategic solution to this over-representation, we made four recommendations which argued that justice reinvestment be adopted.

In Australia, we are spending ever increasing amounts on imprisonment. At the same time, prisoners are not being rehabilitated, recidivism rates are high and return-to-prison rates are creating overcrowded prisons. Based on evidence from the United States and consideration of the Australian context, we argued that spending be reinvested in community-wide early intervention and support for our Indigenous communities.

Justice reinvestment is a localised criminal justice policy approach that, in a particular community with a high concentration of offenders, diverts a portion of the funds spent on imprisonment to be reinvested in programs and services that both prevent offending from occurring and address the underlying causes of crime. Prison is still retained as a measure for dangerous and serious offenders. In other words, it is not simply about reforming the criminal justice system, it aims to prevent people from getting there in the first place.

Indigenous languages: In Australia, Indigenous languages have dwindled from 250 distinct languages – that expanded out to 600 dialects prior to colonisation – to a mere 20 fully intact languages today, all of which are endangered. Without intervention, Indigenous language knowledge will likely cease to exist in Australia in the next 10 to 30 years.

While the loss of Indigenous languages in Australia is a loss for all Australians, for the Aboriginal and Torres Strait Islander peoples involved the loss has wide-ranging impacts on culture, identity and health.

Where languages are eroded and lost, so too is cultural knowledge and, in turn, health and wellbeing. There is now significant research which demonstrates that strong culture and identity are protective factors for Indigenous people, assisting in the development of resilience.

Inconsistent and contradictory policies across the state, territory and Commonwealth governments have created a policy environment in which little can be done in a systematic way to preserve languages. For example, at the same time the Commonwealth government released its 2009 policy to preserve languages, we have seen the Northern Territory government attempt to dismantle bilingual education by making it mandatory for schools to teach the first four hours of each school day in English.

We recommended a series of actions that should be taken by governments to implement the objectives of this new policy while at the same time ensuring that Aboriginal and Torres Strait Islander children become fluent in English. We also documented a number of national and international good practice approaches that suggest ways forward to both formally recognise Indigenous languages and establish a national body to promote Indigenous languages.

Aboriginal homelands: In our state-of-the-nation review we focused on Northern Territory homelands. We did this because significant changes had been made to government policies which limited resources and support for homeland communities, moving homeland residents into large townships so they could access housing, education and other services.

Homelands provide social, spiritual, cultural, health and economic benefits to residents. They are a unique component of the Indigenous social and cultural landscape, enabling residents to live on their ancestral lands. They are also governed through traditional kinship structures which provide leadership and local governance.

History has shown that moving people from homeland communities into fringe communities in rural towns increases the stresses on resources in townships. Some of the documented disadvantages include increased social tensions between different community groups, reduced access to healthy food and lifestyles and loss of cultural traditions, practices and livelihoods.

If government policy fails to support the ongoing development of homelands, it will lead to social and economic problems in rural townships that could further entrench Indigenous disadvantage and poverty.

We argued that homelands should be adequately resourced by all Australian governments and that homeland leaders should be able to actively participate in the development of policies that affect their communities.

Native Title Report

The Native Title Report meets the Aboriginal and Torres Strait Islander Social Justice Commissioner’s obligation to report annually on the operation of the Native Title Act and its effect on the exercise and enjoyment of human rights of Aboriginal peoples and Torres Strait Islanders.

The report aims to address serious human rights violations that result from the dispossession of these peoples from their lands, territories and resources. Its recommendations focus on addressing systemic issues.

The 2009 report summarised the former government’s legacy of native title and land rights policy. It reviewed developments during the reporting period, including relevant changes to law and policy, significant court decisions and developments in international human rights law.

The report outlined the principles and standards we believe should guide a new approach to native title. In particular it promoted the view that the native title system ought to be viewed in the context of broader reforms to protect the rights of Aboriginal and Torres Strait Islander peoples.

With the objective of promoting more discussion and debate, it covered key areas for reform that have attracted attention during the reporting period, and proposed legislative and policy options for improving the native title system.

A key theme in the report was that although governments have come a long way since Mabo, there is much more work to be done before the rights of Indigenous peoples can be said to be fully respected in this country.

One of the most important developments in relation to Indigenous land is that the Australian Government has linked the provision of funding for essential services, such as housing, to government control over Indigenous land.

The report updated developments in Indigenous land tenure reforms and concerns that these have been focused on enabling governments to secure tenure rather than on assisting Indigenous people to make use of their land. The report also sets out principles that should be considered prior to the introduction of land tenure reforms.

Monitoring the rights of asylum seekers and refugees

Advocating for humane immigration detention policies

Recent public debate about asylum seekers has often ignored the fact that they make up a very small percentage of Australia’s immigration intake. Globally, Australia also receives a very small percentage of asylum claims – less than 2% of those made in industrialised countries in 2009.

We recognise there is community concern about the recent arrival of asylum seekers by boat. However, we believe it is important to keep this in perspective. The focus should be on ensuring that, if people do arrive and seek asylum in Australia, we treat them fairly, humanely and in line with Australia’s international obligations. This means allowing them entry for their refugee claims to be assessed and providing them with asylum if they can show they are a refugee.

For more than a decade we have raised concerns about Australia’s immigration detention system. During this time we have investigated numerous complaints from individuals in immigration detention and conducted two national inquiries into the mandatory detention system.

We have concluded that the mandatory immigration detention system breaches fundamental human rights.

Because of our ongoing concerns about the impacts of Australia’s immigration detention policy, the Commission has engaged in a range of activities aimed at ensuring the immigration detention system complies with Australia’s international human rights obligations. These include reviewing and making submissions about proposed laws, making submissions to relevant parliamentary inquiries and commenting on government policies on request.

During the reporting period our policy work included submissions on the Migration Amendment (Complementary Protection) Bill 2009, the Proposed Redevelopment of Villawood Immigration Detention Facility and the Migration Amendment (Immigration Detention Reform) Bill 2009. We also reviewed and provided comments on a number of government policies, including a draft direction on the immigration detention of minors.

In April 2010 we expressed concern about the suspension of processing of applications from asylum seekers from Sri Lanka and Afghanistan. We urged the government to lift its suspension of processing as a matter of urgency. The suspension is leading to longer periods of detention. We have been particularly concerned about the ongoing detention of families with children and unaccompanied minors. Children should only be detained as a measure of last resort and for the shortest appropriate period of time.

Inspecting immigration detention facilities

One of our most important activities in this area is monitoring conditions in immigration detention. To this end we have conducted many visits to Australia’s immigration detention facilities.

This reporting year we conducted two visits to Christmas Island. Our main areas of concern include the significant number of people being held in immigration detention on the island, the detention of children, the conditions of detention and the limited access asylum seekers have to the legal system.

President Branson, Commissioner Innes and two Commission staff members visited Christmas Island from 13 to 18 July 2009. They inspected the facilities, met with detainees, management, staff and service providers, as well as other groups and community representatives.

Our public report of this visit found that the immigration detention facilities on Christmas Island were not appropriate for detaining asylum seekers, particularly those with a background of torture or trauma, and that asylum seekers detained on Christmas Island had more limited access to appropriate services than would be the case on the mainland.

We recommended that the Australian Government repeal the provisions of the Migration Act relating to excised offshore places. We recommended that the policy of processing some asylum claims through a non-statutory refugee status assessment process should be abandoned, and that Christmas Island should not be used as a place to hold people in immigration detention.

We visited Christmas Island again in June–July 2010. A report of this visit will be published later in 2010.

We used World Refugee Day in June to remind Australians of the ongoing need for asylum seekers to be treated humanely.