National Human Rights Action Plan Submission
Civil Liberties Australia CLA
Introduction
Civil Liberties Australia (CLA) thanks the Australian Government for consulting with the community as part of the process for preparing the National Human Rights Action Plan. We provide the feedback below regarding the consultation draft of the Baseline Study and look forward to further engaging with the Government.
CLA recognises that the Baseline Study provides a brief summary of the key institutional and legal protections of human rights in Australia and provides a short summary of positive steps that Australia is taking. Throughout the document, programs being undertaken by the Australian Government that address human rights issues are stated. Chapter 3 provides a survey of the human rights experience of specific groups and CLA is pleased that particular attention is paid to vulnerable groups. CLA congratulates the Attorney General’s Department on producing a document that provides information on what the Australian Government is doing. However, we have concerns that the document does not provide a full and frank survey of the human rights situation in Australia. For the survey to accurately identify priority areas of action for inclusion in the National Action Plan, it must be balanced.
CLA is concerned that the context of the Baseline Study has not been made clear. In comparison with the New Zealand Baseline Study, this document is emaciated. Little mention has been made of the processes that have occurred in the preceding years. The National Human Rights Consultation was a milestone event in the human rights dialogue in Australia: it provides an authoritative source of reliable data and the Government has clearly stated that it accepts a number of recommendations. CLA is concerned that the information provided in the Baseline Study does not accurately and frankly reflect recent history. We submit that the introduction should be amended to provide more detail about the process that led to the Australian Human Rights Framework that was released in 2010.
Specific comments:
CLA is greatly concerned at and highly critical of the quantum of omissions in the Baseline Study Consultation Draft. The Baseline Study cannot be comprehensive if it omits important and relevant facts regarding the situation of human rights in Australia. This submission identifies areas that should be included in the proceeding draft.
- National Human Rights Consultation
The Baseline Study omits to mention the recommendation made by the National Human Rights Consultation Committee that Australia should adopt a federal Human Rights Act and that it should be based on a “dialogue model”. Similarly the Committee recommended that an audit of all existing federal legislation, policies and practices should occur in order to determine their degree of compliance with human rights. CLA submits that the Baseline Study should be amended to include the fact that these recommendations have been made. It should explain why the recommendation to adopt a federal Human Rights Act was not accepted by the Government. The progress in auditing federal legislation should also be stated.
- International Human Rights Law
The Baseline Study omits to mention a number of issues relating to International Human Rights Law. The Baseline Study has not enumerated the International Human Rights instruments that Australia is not a party to. CLA submits that the Baseline Study should be amended to include the fact that Australia has not ratified:
the Convention for the Protection of All Persons from Enforced Disappearance
the International Convention on the Rights of all Migrant Workers
the Optional Protocol to the Convention against Torture or other Cruel, Inhuman or Degrading Treatment or Punishment, and
the International Labor Organisation Convention No. 169.
The Baseline Study has not mentioned the United Nations resolutions or declarations that are not binding but can acquire significant status as a result of specific application and moral force. CLA submits that the Baseline Study should be amended to include the fact that these UN declarations and resolutions are important to the protection and promotion of human rights in Australia. Furthermore, the relevant declarations and resolutions that Australia supports should be listed (such as the Declaration on the Rights of Indigenous People).
The Baseline Study does not illustrate that there is a gap in Australia’s implementation of recommendations by UN human rights mechanisms. CLA is concerned that the process of receiving, then accepting and implementing, or rejecting recommendations is not currently systematised in a clear and transparent mechanism. We submit that the National Action Plan should systematically review Australia’s implementation of recommendations made by UN human rights mechanisms and provide for parliamentary oversight.
The concern raised by the Human Rights Committee that Australia is yet to act in accordance with the Views of the Committee under the First Optional Protocol to provide reparations to victims for violations of the Covenant has not been mentioned in the Baseline Study. CLA submits that the fact that protection gaps exist should be stated and that the recommendations to review anti-discrimination legislation to ensure comprehensive protection of the rights of equality and non-discrimination, in line with Treaty Body recommendations have been made.
The Baseline Study does not mention that UN treaty bodies have recommended that the Australian Human Rights Commission’s mandate be strengthened. CLA submits that the Baseline Study be amended to include the fact that this recommendation has been made and address how it can be put into effect.
Concluding comment on the international dimension, the Baseline Study does not adequately mention the concern in the community, the Parliament and in the international community (including concerns expressed by UN treaty bodies) that Australia has not introduced a Human Rights Act, and has failed to incorporate international human rights standards into domestic law. CLA argues that absence of a Human Rights Act is a major problem. CLA submits that the Baseline Study should set out how international human rights standards could be incorporated into domestic law.
- Indigenous Australians
The Baseline Study omits to mention a number of issues relating to Indigenous Australians. Australia’s endorsement of the UN Declaration on the Rights of Indigenous Peoples is not mentioned. CLA submits that the Baseline Study should be amended to include the fact that Australia has endorsed the Declaration on the Rights of Indigenous peoples, and should map out how the declaration will guide future efforts to improve the situation of indigenous Australians.
The Baseline Study does not mention the effect “Stolen Generations” and “Stolen Wages” has on indigenous Australians. CLA submits that the Baseline Study should be amended to include the fact that the “Stolen Generations”, “Stolen Wages” and reconciliation are issues that have ongoing effect on the full realisation of human rights for indigenous people in Australia. Furthermore, the Bringing them Home - the Stolen Children report is an authoritative report that provides reliable data and should be included in the Baseline Study to better paint the human rights picture for indigenous Australians.
The concern raised by the Human Rights Committee that Australia has not provided adequate reparation, including compensation, to victims of the Stolen Generations policies, as recommended, is not mentioned in the Baseline Study. Indigenous Australians’ connection to land is an important issue that should be part of this survey and CLA submits that the Baseline Study should be amended to include the fact that this recommendation has been made and address how it can be put into effect.
The Committee on Economic, Social and Cultural Rights has raised a number of concerns regarding the complexity, high cost and strict rules applying to Native Title claims that have not been mentioned in the Baseline Study. CLA submits that the Baseline Study should be amended to include the fact that this recommendation has been made.
That same committee has made a recommendation regarding the implementation of the recommendations arising from the Australian Medical Association’s Indigenous Report Card 2008 that have not been mentioned in the Baseline Study. CLA submits that the Baseline Study should be amended to include the fact that this recommendation has been made. Implementation of this recommendation could form part of the Government’s Closing the Gap objectives.
The Baseline Study does not mention the recommendations made by the Committee on Economic, Social and Cultural Rights that Australia should: strengthen its efforts to guarantee indigenous Australian’s rights under Articles 1 and 15 of the ICESR to enjoy their identity and culture and the preservation of their traditional languages, to consider improving the Maintenance of Indigenous Languages and Records Program and preserve and promote bilingual education at schools. Other recommendations made by the Committee to extend legal protection to indigenous Australians through reform of the Copyright Act and develop a special intellectual property regime that protects the collective rights of indigenous peoples, including protection of their scientific products, traditional knowledge and medicine, are also absent. Further recommendations to create a registry of intellectual property rights of indigenous Australians and ensure that profits derived from indigenous intellectual property are directed to the benefit of indigenous Australians have been omitted. CLA submits that the Baseline Study should be amended to include the fact that these recommendations have been made and the Government should take steps as part of the National Action Plan to put these recommendations into effect.
Our final comment in regard to issues relating to indigenous Australians is that the Royal Commission into Aboriginal Deaths in Custody report and the Little Children Are Sacred report are further authoritative sources of reliable data and should be included in the Baseline Study to better paint the human rights picture for indigenous Australians.
- Asylum Seekers/Migrants/Refugees
The Baseline Study omits to mention a number of issues relating to Asylum Seekers/ Refugees/ Migrants. The Baseline Study does not mention the recommendation made by the Committee on Economic, Social and Cultural Rights that Australia should implement the “seven values” in policy without delay. Nor does it mention the Human Rights Commission’s recommendations contained in its 2008 Immigration Detention Report to repeal the mandatory immigration detention system and close the Christmas Island Detention Centre. CLA believes that the existing system for processing claims for asylum is an international embarrassment and must be immediately reformed to bring it into line with Australia’s international human rights obligations. CLA submits that the Baseline Study should be amended to include the fact that these recommendations have been made and address how these recommendations can be put into effect through the introduction of legislation and implementation of policies. The highest priority should be placed on ensuring that no children are detained in an immigration detention centre.
That same committee has recommended that the Australian Government should implement the Freedom of Religion and Belief in the 21st Century Project. However, the Baseline Study omits to mention this recommendation. CLA submits that the Baseline Study should be amended to include the fact that this recommendation has been made and the Government should consider this project as part of the National Action Plan.
The Baseline Study does not mention the recommendation made by the Committee on the Elimination of Racial Discrimination that Australia should establish an anti-racism strategy under the new Human Rights Framework. Similarly, the recommendation made by the Committee on Economic, Social and Cultural Rights that Australia should adopt hate-speech laws at the federal level in accordance with Article 20 of the ICESR is not mentioned. Nor is the recommendation made in the Human Rights Consultation Report that Australia should introduce an education program for all Australians, with particular reference to combating discrimination, racism and prejudice. Or the recommendation made by the Committee on the Elimination of Racial Discrimination to undertake a campaign to sensitise the community against stereotypes associating certain groups with terrorism mentioned. CLA submits that the Baseline Study should be amended to include the fact that these recommendations have been made and allocate greater space in the Baseline Study to the issue of discrimination.
Our final comment in relation to this issue is that the Baseline study should consider the reports produced by the Asylum Seeker Resource Centre and other NGOs. Although these sources are not tabled in Parliament, they provide data and statistics that could inform the survey.
- Anti-terror laws
In Chapter 2 of the Baseline Study addresses human rights concerns of the community. However, it omits to mention a number of issues regarding counter-terrorism measures and the use of force by police. The Baseline Study does not mention the recommendation made by the Human Rights Committee to address the vagueness of the definition of “terrorist act” in the Criminal Code. Not does the Study mention the recommendations that Australia should guarantee the right to be presumed innocent - which does not align with providing ASIO with the power to detain people without access to a lawyer and in conditions of secrecy for up to seven day renewable periods and ensure that the notion of “exceptional circumstances” does not an automatic obstacle to bail. CLA submits that the Baseline Study should be amended to include the fact that these recommendations have been made and make reference to previous studies that have considered the issues.
The Baseline Study does not mention the recommendation made by the Human Rights Committee to establish a mechanism to carry out independent investigations of complaints concerning excessive use of force by law enforcement officials and initiate proceedings against alleged perpetrators. Further recommendation to increase the training of law enforcement officers in the use of force and proportionality, provide adequate reparations to victims of use of excessive force and to bring legislative policies and provisions for the use of force into line with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. CLA submits that the Baseline Study should be amended to include the fact that these recommendations have been made. As a balanced survey, the Baseline Study should reflect the lack of consensus outside the national security establishment and consistent and recurring criticism of Australia’s counter-terrorism regime and law enforcement practices from both international sources (such as during the Universal Periodic Review) and domestically (from CLA for example).
- Economic, Social and Cultural Rights
In Chapter 3 the Baseline Study addresses the human rights experience of specific groups in Australia. CLA acknowledges that this is in accordance with the practice recommended in the UN Manual; however a number of concerning omissions have been made. The Baseline Study does not mention the recommendation made by the Committee on Economic, Social and Cultural Rights that Australia should amend the Migration Act and the Disability Discrimination Act to ensure the rights to non-discrimination and equality apply to all aspects of migration law, policy and practice. CLA submits that the Baseline Study should be amended to include the fact that this recommendation has been.
The section on Women and Gender Equality does not mention the recommendations made by the Senate Legal and Constitutional Affairs Committee in relation to amending the Sex Discrimination Act regarding gender equality. CLA submits that the Baseline Study should be amended to include the fact that these recommendations have been made and address and these would be issues appropriately addressed in the National Action Plan.
In the section on Children and Young, the Baseline Study should discuss the creation of a Children’s Rights Commissioner within the Australian Human Rights Commission. CLA supports the creation of this position, called for by Hon Catherine Branson QC, President, Australian Human Rights Commission (July 26 2011).
The survey does not adequately address the issues surrounding intersex people in the gay, lesbian, bisexual and sex or gender diverse people section. CLA submits that this section of the Baseline Study should illustrate the human rights situation of intersex people in Australia and how their human rights can be afforded greater protection and promotion.
The Baseline Study does not mention the recommendation made by the Special Rapporteur on the Right to Adequate Housing that Australia should adopt a comprehensive and coordinated national housing policy within an overarching human rights approach, ascontained in the report of his mission to Australia. CLA submits that the Baseline Study should be amended to include the fact that these recommendations have been made. As stated below, CLA believes that poverty is an issue that has not been adequately surveyed and forms an important intersectional factor that affects the human rights of many different groups.