About Children by Choice Association Inc

National Human Rights Action Plan

Comments on the Attorney-General Department’sbackground paper

February 2011

About Children by Choice Association Inc:

Children by Choice provides counselling, information and education services on all options with an unplanned pregnancy, including abortion, adoption and parenting. We provide a Queensland-wide counselling, information and referral service to women experiencing unplanned pregnancy, deliver sexual and reproductive health education sessions in schools, and offer training for GPs and other health and community professionals on unplanned pregnancy options. Through our active volunteer base, we campaign for the removal of abortion provisions from the Criminal Code of Queensland, and many reproductive health issues such as paid maternity leave.

Children by Choice supports women’s access to all options with an unplanned pregnancy, including abortion, and have been involved in helping women access these options since the service began operation in 1972. Children by Choice is the only independent, not-for-profit women’s service dedicated to unplanned pregnancy in Australia. Children by Choice is recognised nationally and internationally as a key advocacy group for the needs and rights of women in relation to access to reproductive health services with regard to unplanned pregnancy.

Our vision: all women can freely determine their sexual and reproductive health choices.

Key values underpin our work across all areas of the Association’s activities. We are:

• pro choice and woman centred
• ethical and evidence based
• non-judgemental and unbiased
• confidential and respectful
• committed to social justice, diversity and equity, and
• dedicated to promoting self determination.

Contact

Kate Marsh

Public Liaison Officer

T 07 3357 9933

E

POBOX 2005Windsor Q 4030

Rights to be included in the new Action Plan

Children by Choice welcomes the Federal Government’s announcement of the development of a new National Human Rights Action Plan, and its commitment to ensuring extensive consultation and input from the NGO sector and other key stakeholders.

As an organisation working to advance women’s equality and improve reproductive health, Children by Choice believes a new Action Plan must contain measures to improve women’s substantive equality and enshrine the right to optimum health and wellbeing. Rights we would like to highlight as being of particular importance in relation to women’s reproductive health are:

-the right to equality before the law;

-the right to health;

-the right to bodily and psychological integrity; and

-the right to education.

Right to equality before the law

Enhanced protection of the right to equality before the law must be a priority of the new Action Plan. Children by Choice fully endorses the following statements and recommendations from a submission to this background paper from the Coalition of Community Legal Centres[1].

The rights to non-discrimination and substantive equality are fundamental components of human rights law that are entrenched in a wide range of human rights treaties.i At present, these rights are not adequately protected in Australia.

The 2009 National Human Rights Consultation Report noted that that ‘[a] large number of submissionsfocused on the inadequacies of anti-discrimination legislation’ and recommended that the FederalGovernment audit and amend anti-discrimination legislation to ensure that it complies with Australia’shuman rights obligations. ii

Internationally, the UN Human Rights Committee, the Committee on Economic, Social and CulturalRights, the Committee on the Elimination of Discrimination Against Women and the Committee on theElimination of Racial Discrimination have all recommended that Australia strengthen its antidiscriminationlaws.iii

Most recently, the inadequacy of our legal protections against discrimination received significantattention at the Universal Periodic Review of Australia, where several countries maderecommendations that Australian laws ensure comprehensive protection of the rights to equality andnon-discrimination.iv

We note that the mere harmonisation of Federal anti-discrimination laws, referred to in theBackground Paper, will not adequately address the gaps in Australia’s legal framework. For thisproject to be a legitimate human rights initiative, the reform must be based on a transparent andconsultative process and must aim to strengthen and modernise our anti-discrimination regime.

Accordingly, we make the following recommendations:

Recommendation 1

The Government should ensure that the harmonisation of anti-discrimination laws is based on full andtransparent consultation with relevant stakeholders, most importantly of individuals and groupsaffected by discrimination.

Recommendation 2

The National Action Plan should contain a commitment to enact comprehensive equality legislationthat addresses all prohibited grounds of discrimination, promotes substantive equality and provideseffective remedies against discrimination, including systemic and intersectional discrimination.

Recommendation 3

The National Action Plan should include a commitment that the Government will conduct an inquiryinto a constitutional amendment aimed at enshrining the right to equality.

1. See, eg, International Covenant on Civil and Political Rights, Dec. 16, 1966 (entered into force Mar. 23, 1976),999 UNTS 171 (ICCPR), arts 2, 3, 26; International Covenant on Economic, Social and Cultural Rights, Dec. 16,1966 (entered into force Jan. 3, 1976), 993 UNTS 3 (ICESCR), art 2; Convention on the Elimination of All Formsof Discrimination against Women, Dec. 18, 1979 (entered into force Sept. 3, 1981), 1249 UNTS 13 (CEDAW);International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Dec. 21, 1965 (enteredinto force Jan. 4, 1969), 660 UNTS 195; Convention on the Rights of Persons with Disabilities, Dec. 13, 2006(entered into force May 3, 2008), GA Res 61/106, UN Doc A/61/611 (2006) (CRPD), art. 5.
2. National Human Rights Consultation Committee Report (September 2009), Recommendation 4.
3. Human Rights Committee, Concluding Observations: Australia, CCPR/C/AUS/CO/5, 2 April 2009 [12],Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia, E/C.12/AUS/CO/4, 12June 2009 [14]; Committee on the Elimination of Discrimination Against Women, Concluding Observations:Australia, CEDAW/C/AUS/CO/7, 30 July 2010 [25]; Committee on the Elimination of Racial Discrimination,Concluding Observations: Australia, CERD/C/AUS/CO/15-17, 27 August 2010 [10].
4. See the Draft Report of the Working Group on the Universal Periodic Review of Australia, available at

Right to health

Despite the right to health and health care being universally acknowledged, Children by Choice believes not enough is being done to protect and promote this right in Australia. Currently, people are prevented from accessing health care due to their geographic location or isolation, their low income, their disability, and/or the lack of culturally-appropriate health services and interpreters.

Of particular relevance to Children by Choice and our clients is access to sexual and reproductive health rights. We reference the Beijing Declaration’s definition of sexuality and sexual rights, being that:

‘[t]he human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence. Equal relationships between men and women in matters of sexual relations and reproduction, including full respect for the integrity of the person, require mutual respect, consent and shared responsibility for sexual behaviour and its consequences’.[2]

In Queensland today, accessing abortion remains a crime, sexual and reproductive health services can be difficult to access due to geographic isolation or marginalisation, sexuality education in schools is inconsistent, sexually transmitted infection rates are rising rapidly, and contraception is not always readily available. Young women, Aboriginal and Torres Strait Islander women, culturally and linguistically diverse women, and women with disabilities, are further at risk of ill health, and face greater barriers in accessing appropriate sexual and reproductive health information and services.

Sexual and reproductive health is widely recognised as a major priority area for improving women’s health around the world as well as in local jurisdictions – it was one of the seven key priority areas of the original National Women’s Health Policy in 1989,[3] remains one of four priority health issues in the 2010 National Women’s Health Policy,[4] and is one of three priority issues in the current Victorian Women’s Health and Wellbeing Strategy.[5] The rights enshrined in the South African constitution also specifically states that ‘Everyone has the right to have access to health care services, including reproductive health care’, and that ‘The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of [this] right.’[6]

We recommend that the National Action Plan’s work on the right to health explicitly include the right to accesshealth care services, including reproductive health care.

Access to sexual and reproductive health information and services varies widely across Australia, from state to state and region to region. This is particularly true in relation to pregnancy termination services, with varying degrees of legality from state to state severely impacting on women’s access to these services. We note the background paper on the new Action Plan includes a reference to working with state and territory governments on the actions they will be taking to improve human rights in their jurisdictions. Children by Choice believes there is significant work to be done in harmonising laws and policies relating to sexual and reproductive health across the country, and that the new Action Plan should include some engagement with state and territory governments on this issue.

We recommend that the Action Plan include a commitment to engage with state and territory governments to ensure the right to health, including sexual and reproductive health, is adequately and equally protected and promoted across national jurisdictions.

People have the right to make their own decisions about their health and should not be coerced into making choices due to a lack of accurate information. This includes information about contraception and abortion. Pregnancy counselling telephone services in Australia are not currently subject to the same misleading advertising regulations as trading organisations. This essentially means that counselling groups can advertise themselves as a ‘pregnancy crisis helpline’ or something similar which infers a non-directive service, but which are anti-choice in nature.

Children by Choice believes that if a group does not refer for abortion, this should be clearly stated in their advertising. This would protect the rights of these groups to counsel as they choose, while at the same time respecting the rights of individuals to choose what type of service they contact, and ensure informed decision-making.

We recommend that the Action Plan includes the right to access accurate health information, including information about sexual and reproductive health, and provides an opportunity to ensure that health information services accurately advertise the nature of their service.

Right to bodily and psychological integrity, including the right to make decisions concerning reproduction

The right to bodily and psychological integrity is one of the most important in maximising a person’s health and wellbeing. We recognise that control over reproduction is an issue on which people hold strong opinions, and that those opinions can differ. However, on the issue of abortion, credible polling consistently shows more than 80% of Australians to support a woman’s right to choose.[7] The right to safe and legal abortion has been recognised by many bodies, including Amnesty International which has urged all countries to repeal laws which allow women to be persecuted or criminally charged for seeking abortion.[8] The Parliamentary Assembly of the Council of Europe has also called on member states which have not already done so to decriminalise abortion.[9]

However, as stated above, varying degrees of legality from state to state severely impact on Australian women’s access to these services. For example, several recommendations have been made to the Queensland Government regarding the decriminalisation of abortion in this state, which have not been implemented.[10] As a result, abortion remains a crime for which women can serve seven years in jail for accessing, and doctors 14 years for providing.[11] In contrast, the Australian Capital Territory has completely decriminalised pregnancy termination, while in Victoria the only criminal penalties in relation to abortion apply only to unqualified persons carrying out the procedure.

In Australia it is estimated that more than 80,000 women a year will access health care services for the purpose of pregnancy termination.[12] It is also estimated that almost one in three Australian women will experience abortion in their lifetime,[13] with over 80% of abortion procedures carried out in private day facilities where the out of pocket fee is significant. Such great variance in legality and accessibility to pregnancy termination procedures according to location is clearly untenable and should be a key component of state and territory human rights compliance.

We recommend a Human Rights Act include the right to bodily and psychological integrity, including the right to make decisions concerning reproduction.

We also believe that the right to found a family should be equally recognised by the Human Rights Act. Just as women should have the choice not to parent, they should have the choice to parent, and the choice of the number, timing and spacing of their children. The capacity to make these decisions is of particular importance to women, and has been adopted as a fundamental principle of development and population policy.

These choices should be equally available to all people, regardless of age, disability, sexuality or marital status.

We recommend the Human Rights Act include the right of individuals and couples, on an equal basis of others, to found and maintain a family, and to freely choose the number, timing and spacing of their children.

Right to education

One particular cross-portfolio area of concern to Children by Choice is the inadequate and inequitable provision of sexuality education in Australian schools. Sexuality education is defined as the life-long process of acquiring information and forming attitudes, beliefs and values about feelings, relationships, gender roles, body image, sexual development and reproductive health.[14] Sexuality education can facilitate the capacity of individuals to make informed, safe and healthy decisions in accordance with personal beliefs and values as well as develop respect for the diversity that exists in our community.[15]

Although sexuality education has been compulsory in Queensland schools for over 21 years, this policy is not monitored and in reality, the level of education received by students depends largely on which school they attend.The problem is best summarised as follows:

‘In Queensland, sexuality education is included in the Health and Physical Education (HPE) Syllabus

(Queensland School Curriculum Council, 1999). However, school administrators choose how and

when to implement it and are not required to report on what programs are used or to formally

evaluate them. There is no state or national body that provides leadership or guidance…’[16]

This situation is largely mirrored across Australia, with the quality of sexuality education varying from state to state, and school to school. Providing adolescents with age-appropriate sexual and reproductive health informationempowers them to make responsible decisions regarding sexuality, thereby reducing the number of unintended pregnancies and STI incidences.

Children by Choice recognises that work is currently underway to develop a sexuality education component to the National Curriculum, included in the health and physical education component of the curriculum to be rolled out from 2014. We would draw the attention of the Federal Government to world’s best practice in sexuality education, which is best summarised by It’s All One Curriculum, an international resource developed by the International Sexuality and HIV Curriculum Working Group. The guidelines for developing such curricula include several key values, including being evidence-based, comprehensive, gender-sensitive, fostering civic engagement, and

based on core values and human rights, that is, it promotes principles of fairness, human dignity, equaltreatment, opportunities for participation, and human rights for all as the basis for achieving sexual andreproductive health and well-being.[17]

We recommend the Action Plan provides an opportunity to engage with the development of sexuality education through the national curriculum, to ensure a unified comprehensive curriculum on sexuality, reproductive health, gender and human rights.

Goals of the Action Plan

This submission towards the development of a new National Human Rights Action Planfocuses on the major challenges facing women in regards to the sexual and reproductive health and wellbeing. Our recommendations are geared towards actions which envision a future where:

• Women are involved in and collaborate with government to control, develop and implement strategies to improve their own health outcomes;
• Equity exists across state boundaries and compliance with the best international standards are a way of life;
• Women are recognised as the experts in their own lives;
• Rural, regional and remote women can easily access comprehensive reproductive health services;
• Young people are well informed about their sexual and reproductive health choices;
• All women are safe;
• Policy and practice in women’s health are well supported by a wide range of evidence; and
• Women are well resourced financially to achieve good health outcomes.

The baseline study

Children by Choice welcomes the announcement that a baseline study will be carried out to assess the status of human rights in Australia, as part of the Action Plan’s development. We note the Attorney-General’s Department proposal that the baseline study include:

• Australia’s engagement with relevant human rights treaties and United Nations reporting mechanisms
• Australia’s domestic institutional and legislative architecture for human rights protection
• information on the status of priority vulnerable groups identified during the National Human Rights Consultation
• information on key human rights issues raised by United Nations committees, and
• a snapshot of attitudes to, and knowledge of, human rights in Australia.

Children by Choice is aware of, and has taken part in, NGO consultations on Australia’s compliance to international human rights treaties in recent years. The resulting reports prepared for human rights bodies provide a comprehensive view of the current status of human rights in Australia, as well as detailed information on the challenges faced in advancing human rights protection for vulnerable Australians.