National Human Rights Action Plan

28 February 2011

The Secretariat

National Human Rights Action Plan

Attorney General’s Department

3 – 5 National Circuit

BARTON ACT 2600

Dear Secretariat,

RE: Submission on the development of a National Human Rights Action Plan

The Hawkesbury Nepean Community Legal Centre (HNCLC) is an independent, non-profit organisation, which provides free and confidential legal advice to people living in the Hawkesbury, Riverstone, Nepean and Hills areas of NSW.

We work for the public interest, particularly for disadvantaged and marginalised people and communities. We promote human rights, social justice and equity through the provision of legal services including strategic casework, community legal education and law reform campaigns, which advocate for access to justice equitable laws and equitable legal systems.

We urge the Australian Government to take into consideration our following submission and its recommendations when developing a new National Human Rights Action Plan.

Please do not hesitate to contact me if you have any questions regarding our submission.

Yours sincerely,

Hawkesbury Nepean Community Legal Centre

Philippa Davis

Principal Solicitor

EXECUTIVE SUMMARY

‘All humans are born free and equal in dignity and rights.’ Article 1, Universal Declaration of Human Rights 1948

On 21 April 2010, the Federal Government launched ‘Australia’s Human Rights Framework’ (the Framework) setting out a number of measures the Government intends to take to protect and promote human rights in Australia. Included in this Framework is the commitment to develop a new National Human Rights Action Plan (the Action Plan) which is intended to “outline future action for the promotion and protection of human rights”.[1]

On 16 December 2010, the Attorney-General released a Background Paper, A new National Human Rights Action Plan for Australia (the Background Paper) which sets out the Government’s proposed approach to developing the Action Plan as well as the Baseline Study.

The HNCLC welcomes the opportunity to provide submissions and recommendations on the development of the new Action Plan and Baseline Study. This submission sets out:

·  What the broad aims and purposes of the Action Plan should be;

·  ‘Best practice’ models for the Action Plan and the Baseline Study; and

·  Particular substantive areas of human rights in need of greater protection, which should be included in the Action Plan and Baseline Study.

Recommendations

In order to provide a strong platform for improving and protecting the human rights of all Australians, HNCLC recommends the following:

·  Recommendation 1: The Action Plan should aim to promote domestic and international acceptance of international human rights law by developing an Action Plan that reflects ‘best practice’ and takes an international leadership role in protecting and promoting the human rights of sex, sexuality and gender diverse people.

·  Recommendation 2: The Action Plan should be modelled on the UN Handbook on National Human Rights Plans of Action, The New Zealand Action Plan for Human Rights 2005 and the Swedish National Action Plan for Human Rights 2006.

·  Recommendation 3: The Baseline Study should be prepared by an independent body and identify priority human rights areas by drawing on relevant sources, including the 2010 National Human Rights Consultation Report and the recommendations made by 2011 Universal Periodic Review.

·  Recommendation 4: The Action Plan should include objectives and actions addressing how the Action Plan is to be effectively implemented, monitored and evaluated.

·  Recommendation 5: The Action Plan should address the human rights of individuals consistent with Australia’s obligations under international human rights law, recognising that human rights are universal, indivisible, interdependent and interrelated.

·  Recommendation 6: The Action Plan should address the civil, political, economic, social and cultural rights of individuals, consistent with Australia’s obligations under international human rights law, equally and without prioritisation.

·  Recommendation 7: The Action Plan should include objectives and actions that aim to incorporate Australia’s international human rights obligations through a National Human Rights Act.

·  Recommendation 8: The Action Plan should include objectives and actions that address the human rights violations experienced by vulnerable groups of people, such as women, including Aboriginal women, and sex, sexuality and gender diverse people.

·  Recommendation 9: The Action Plan should include objectives and actions addressing the human right to equality and non-discrimination before the law, to security of the person, to adequate housing, to found a family and marry, and to effective remedies and redress.

·  Recommendation 10: The Action plan should include objectives and actions addressing a nation-wide strategic approach to human rights education.

DEVELOPMENTAL ISSUES

Aim and Purpose of Action Plans

The new Action Plan should aim to improve the protection and promotion of human rights in Australia[2] and implement Australia’s international human rights obligations.[3]

Since 1945 Australia has agreed to be bound by a range of international human rights treaties including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the International Convention on the Elimination of All Forms of Racial Discrimination.

This means that human rights, as expressed in Australia’s international obligations, must not be violated. The individual should be assured of the protection of these rights without discrimination. When people are denied their human rights they are denied their dignity and respect. A society where people are assured their human rights is stronger and more stable than a society where human rights are set aside.

HNCLC submits that the broad aim of the Action Plan should be to ensure all levels of Australian Government comply with our international human rights obligations and the Action Plan should work towards developing a human rights culture in Australia where the rights of all human beings are respected and their basic needs met and where the individual is not violated or marginalised.

We submit the Action Plan should also aim to improve acceptance and promotion of international human rights law by developing and implementing an Action Plan that reflects ‘best practice’ and sets a good international standard, able to be used as a template for the development of subsequent actions plan world-wide.

We further submit that including in the Action Plan particular substantive areas of human rights in need of greater protection also has the potential of influencing the development of further international human rights law.

For example, the international response to human rights violations based on sexual orientation and gender identity has been fragmented and inconsistent.[4] HNCLC urges the Australian Government to take an international leadership role in growing international human rights law aimed at protecting human rights violations on the basis of sexual orientation or gender identity by including objectives and actions aimed at improving the protection and promotion of sex, sexuality and gender people in Australia.

Recommendation 1: The Action Plan should aim to promote domestic and international acceptance of international human rights law by developing an Action Plan that reflects ‘best practice’ and takes an international leadership role in protecting and promoting the human rights of sex, sexuality and gender diverse people.

‘Best Practice’ Models

While there is no single model for how an action plan should look, we urge the Government to be to guided by the UN publication Handbook on National Human Rights Plans of Action (the UN Handbook) and other action plans that have been considered best practice, such as the New Zealand Action Plan for Human Rights 2005 – 2010 (the NZ Action Plan) and the Swedish National Action Plan for Human Rights 2006 – 2009 (the Swedish Action Plan).

The UN Handbook states that a National Action Plan is both an outcome and a process, each equally important. The UN Handbook says that the plan should be developed as a substantial and comprehensive document and it should trigger activity in a wide range of areas of public administration.

The UN Handbook states that a credible national action plan must be built on a commitment to universal human rights standards, which means a commitment to implementing the civil, political, economic, social and cultural rights enshrined in international covenants, which Australia has acceded to, giving equal attention to all categories of rights.

The UN Handbook requires action plans to be action-oriented. Rather than setting forth claims and vague promises, a national action plan should:

·  Indicate clearly what the current situation is;

·  Identify what problems need to be overcome;

·  Specify what action will be taken;

·  Specify who is to take the action;

·  Establish a firm time frame in which action will be taken; and

·  Provide for effective monitoring and evaluation of what has been done.

The UN Handbook states action plans should be viewed as part of a long-term process and should incorporate mechanisms for the monitoring of progress and for evaluation of the plan's achievements, as well as plans to develop a successor plan.

The UN Handbook also considers that countries that have established national action plans are also in a position to provide guidance to others that are in the process of developing a plan. The NZ and Swedish Action Plans are considered to reflect best practice because they best reflect the UN Handbook guidelines and therefore offer a good model to guide the Australian Government.

The Government must avoid modelling the new Action Plan on previous Australian action plans that do not reflect the UN Handbook guidelines, because they do not reflect best practice.

It is our submission that the Australian National Action Plan for Human Rights 2004 is not an example of an action plan that reflects best practice. It does not reflect the guidelines set out in the UN Handbook, only references contemporaneous programs and fails to include any objectives or actions to assess or evaluate those programs with the aim to better protect and promote human rights in Australia.

Recommendation 2: The Action Plan should be modelled on the UN Handbook on National Human Rights Plans of Action, The New Zealand Action Plan for Human Rights 2005 and the Swedish National Action Plan for Human Rights 2006.

The Baseline Study

The HNCLC welcomes the announcement that a Baseline Study – a report on the status of human rights in Australia – will be developed alongside the Action Plan. We submit that the Baseline Study should be developed and overseen by a diverse and representative steering committee comprising of non-government representatives such as NGO peak body representatives, NGOs with subject-matter expertise, academics, representatives of vulnerable groups, trade unions, human rights educators and other community representatives.

To ensure the Action Plan is politically manageable, the Action Plan should identify and address key priority areas of human rights in need of greater protection, sourcing these areas from relevant resources, including the 2010 National Human Rights Consultation Report and submissions and recommendations made during Australia’s 2011 Universal Periodic Review.

In December 2008 the Commonwealth Attorney-General appointed a National Human Rights Consultation Committee (the Committee) to conduct a public inquiry about how best to recognise and protect the human rights and freedoms of all Australians. Issues raised during this consultation were published in a report drafted by the Committee in 2009.

The Committee’s report summarised the opinions of Australians based on terms of reference which asked the consultation participants which human rights should be protected and promoted, whether these human rights currently sufficiently protected and promoted, and how could Australia better protect and promote human rights?

HNCLC submits that while this report is important and valuable to understand the lived experiences and views of individuals, there needs to be some additional perspective to ensure that a genuine human rights status report is compiled.[5] We submit that it is also important to incorporate international perspectives on the human rights situation such as the Human Rights Council’s Universal Periodic Review (UPR).[6]

In February 2011 the Human Rights Council examined Australia’s compliance with its international human rights obligations. Fifty-three countries asked questions of the Australian Government and 145 recommendations were made to improve Australia’s compliance with international law.

Recommendation 3: The Baseline Study should be prepared by an independent body and identify priority human rights areas by drawing on relevant sources, including the 2010 National Human Rights Consultation report and the recommendations made by 2011 Universal Periodic Review.

Assessment, Implementation and Evaluation

HNCLC submits that the steering committee should charged with developing a set of indicators to monitor and measure the extent to which human rights are being realised in Australia. The Action Plan should also include provisions setting out how the Action Plan is to be implemented and evaluated.

In order to properly assess the status of the human rights in Australia and to measure the change in those rights over time, the steering committee should develop a comprehensive list of indicators which set out:

·  the structures that are already in place, or should be in place, to protect rights, such as laws and policies;

·  process indicators, such as the extent to which people actually use laws already available to defend their human rights; and

·  outcome indicators that show the impact of laws or gaps in law, such as the numbers of people whose human rights are either respected or denied.

These indicators should be the starting point from which human rights can be monitored and measured during the period of the Action Plan and should provide the framework to evaluate the Action Plan and plan and develop the next Action Plan.

We support the recommendation made by Bill Barker that the steering committee should be chaired by the Commonwealth Attorney-General who should be responsible for overseeing the implementation of the Action Plan, reporting to Parliament, emphasising the seriousness of the project and promoting public and media interest.[7]

Australian Governments at all levels must comply with Australia’s international human rights obligations. The actions set out in the Action Plan will require the Federal Government to work with the relevant government level responsible for the area in need of reform. The Action Plan should include objectives and actions addressing how the Federal Government will work with the state, territory and local governments to ensure the implementation of the Action Plan.