In July 2010, the Human Rights Law Resource Centre, together with the National Association of Community Legal Centres, submitted a major NGO submission on Australia to the UN Committee on the Elimination of Racial Discrimination. 

The report, which was endorsed by a coalition of over 100 NGOs, details that racial and religious minority groups in Australia continue to experience racism in their daily lives and to suffer unequal human rights treatment and outcomes.  There remain serious concerns about the racially discriminatory character and impact of a range of Australian laws, policies and practices.  Many of the advances in human rights protection since the election of the Labor Government in 2007 have been symbolic in nature; structural changes necessary to turn commitments into practice still need to be made.

The NGO report documents areas in which Australia is falling short of fulfilling its obligations under CERD and focuses on areas that have been the subject of extensive NGO activity and research in Australia.

Subjects detailed in the report include:

• the lack of sufficient legal protection from racial discrimination in Australian law, policy and practice, including the ineffectiveness and, at times, unavailability of remedies for violations;
• the ongoing discriminatory outcomes experienced by Aboriginal and Torres Strait Islander people in the enjoyment of many civil, political, economic, social and cultural rights;
• the impact of the Northern Territory Intervention on Aboriginal and Torres Strait Islander peoples;
• the adverse impact of laws, policies and practices on asylum seekers, refugees and other non-citizens;
• the various forms of discrimination faced by migrant communities in Australia;
• the impact of Australia’s counter-terrorism laws on Somali, Kurd and Muslim communities in Australia; and
• the need for better implementation of Concluding Observations of human rights treaty monitoring bodies and a worrying trend in Australia’s response to views of those bodies.

The report contains concrete recommendations for Australian authorities, which would bring Australia more fully into compliance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination; an Australia in which all persons can live with freedom, respect, equality and dignity.

As the Federal Government prepares its response to the report of the Joint Parliamentary Committee on Foreign Affairs, Defence and Trade, ‘Human Rights and the Asia-Pacific: Opportunities and Challenges’, this policy brief on ‘Human Rights in the Asia-Pacific: Australia’s Role and Responsibilities’ contends that Australia should develop a comprehensive policy on human rights in the region.  The brief makes 21 concrete recommendations for action in the following areas:

• Human Rights as a Key Instrument and Aim of Australian Engagement in the Region
• Adopting a Human Rights-Based Approach to Aid and Development Assistance
• Adopting a Human Rights-Based Approach to Military and Security Cooperation
• Empowering Communities and Supporting NGOs
• Human Rights Treaty Ratification and Implementation
• Strengthening Human Rights Institutions
• Enhancing Parliamentary Engagement with Human Rights
• Human Rights Envoys and Ambassadors

This brief is the fifth in a series of policy papers designed by the Human Rights Law Resource Centre to inform and advance the human rights agenda in Australia.  Each brief identifies a human rights problem or opportunity, discusses the imperative for action, analyses relevant evidence, and makes concrete recommendations for Australia to advance the agenda at the international and national levels. 

Policy Brief on an Agenda to Promote Equality and Address Discrimination in Australia
(24 May 2010)

The policy brief on ‘Promoting Equality and Addressing Discrimination in Australia’ identifies that the law can and should play a central normative and educational role in advancing meaningful equality for all Australians.  This requires a shift away from an outdated and ineffective complaints-based, remedial model of anti-discrimination laws.  Instead, Australian law should promote a rights-based model of substantive equality which emphasises equal outcomes and addresses structural causes of inequality.  This would contribute to a more fair, cohesive and productive society.

The brief makes 7 concrete recommendations for action, including that:

1. The Government should release an exposure draft for a single, comprehensive Equality Act which promotes and enshrines a legal right to substantive equality.
2. The federal Equality Act should include a provision mandating that, after four years of operation, an inquiry be held into a constitutional amendment aimed at enshrining the right to equality.
3. The Federal Government should require public bodies to consider equality in policy development, spending and service delivery. 
4. The Federal Government, its agencies and public authorities should use public procurement to promote equality and assess suppliers on the progress that they are making in reducing inequality.
5. The Federal Government should show political leadership and support for the equality agenda by appointing a Minister for Human Rights and Equality who should hold a seat in cabinet.
6. All public bodies should produce and publish annual equality reports. 
7. The Australian Human Rights Commission Act should be amended to provide that all Commissioners are to submit a report, to be tabled in Parliament, regarding the status of human rights in Australia within their areas of responsibility and containing concrete recommendations to enhance human rights in these areas.  Further, the Commission should be adequately resourced to discharge this function. 

Policy Brief on Protecting Privacy while Responding to Terrorism
(3 May 2010)

The policy brief on ‘Protecting Privacy whilst Responding to Terrorism’ contends that the Australian Government should become a world leader in protecting the rights of its people to be safe from both terrorism and from undue interference with privacy.  Governments have a duty to protect the rights, lives and safety of people within their territory from legitimate threats of terrorist attacks.  However, protecting the community from terrorism and protecting human rights are not mutually exclusive.

The brief sets out the steps for the Australian Government to take to implement the approach to privacy protection recommended by the UN Special Rapporteur on Human Rights and Counter-Terrorism.  In particular it sets out important steps to be taken domestically, in both law and policy, and also opportunities to lead international developments such as a global declaration on data protection.

Policy Brief on Foreign Policy and Human Rights
(6 April 2010)

The policy brief on ‘Foreign Policy and Human Rights’ contends that human rights should be both a key goal and a key instrument of Australian foreign policy.  It sets out that, despite identifying ourselves as a ‘principled advocate of human rights for all’, and demonstrating significant commitment to human rights in practice, Australia has not developed a comprehensive, consistent and coherent policy on human rights and foreign affairs.  Such a policy could integrate human rights in all areas of Australian foreign affairs and capitalise on the benefits of doing so.

The brief maintains that Australia’s approach to human rights and foreign policy should be progressive, principled and persistent.  It sets out 14 concrete recommendations for action at the international, regional and domestic levels under the headings of:

• a principled approach to universal human rights and accountability;
• multilateralism and engagement with the United Nations; and
• empowering communities and supporting NGOs.

Policy Brief on Business and Human Rights
(22 March 2010)

The policy brief on ‘Business and Human Rights’ contends that the further development and operationalisation of the business and human rights agenda presents a significant opportunity and responsibility for Australia, both at the international and domestic levels.  It contains 15 recommendations for Australian action at the international and local levels.

The brief makes 6 concrete recommendations for Australian action at the international level, including explicitly adopting the Special Representative’s framework as a basis for Australia’s approach to corporate human rights law and policy, and conducting conduct human rights impact assessments of proposed multilateral and bilateral trade and investment agreements, together with major public-private projects. 

The brief makes 8 recommendations for Australian action at the local level, including using public procurement to reinforce the responsibility of business to respect human rights and to promote socially and environmentally responsible governance, and amending the Corporations Act 2001 to require (or at the very least explicitly permit) directors to consider human rights issues as an aspect of their duty to act in the best interests of the company. 

The reforms respond to a major review of the Equal Opportunity Act 1995 conducted by Julian Gardner in 2007-2008 which found that Victoria’s anti-discrimination legislation is ineffective in addressing the systemic discrimination that is entrenched in our institutions and social structures.  As the Attorney-General recognised in the Bill’s second reading speech, ‘Victorians are competing on uneven ground… we need to level the playing field’.

In order to respond to this problem, the Bill introduces an express positive duty to eliminate discrimination, strengthens the Victorian Equal Opportunity and Human Rights Commission’s role in issuing guidelines and action plans and provides new powers for the Commission to conduct investigations and public inquiries into serious instances of systemic discrimination.

Disappointingly – and contrary to the recommendations contained in the Gardner Report – the Bill fails to provide protection from discrimination on the basis of homelessness and irrelevant criminal record. 

The Bill also retains many of the permanent exceptions in the Equal Opportunity Act 1995, (including those for religious groups and same sex clubs).  The HRLRC has consistently argued that permanent, blanket exceptions to the operation of equal opportunity legislation perpetuate harmful discriminatory practices and are inconsistent with the Charter and international human rights law. 

The HRLRC’s submission on the Bill to the Scrutiny of Acts and Regulations Committee is available here.

The Special Rapporteur’s report focuses on the need for the Australian Government to ensure that Aboriginal people are included in decision making about matters that affect them.  The report highlights that Government laws and policies must advance the right of self determination and respect the important aspects of Aboriginal culture and way of life.

The reports makes 37 conclusions and recommendations, including in areas relating to:

• legal and policy framework;
• lands, territories and resources;
• overcoming Aboriginal disadvantage, including in relation to health, education, employment and housing;
• the protection of Aboriginal women, children and families;
• administration of justice;
• Aboriginal organisations and management; and
• the Northern Territory Intervention.

The report follows an official visit to Australia by the United Nations independent expert in August 2009.  The Special Rapporteur’s report will be tabled at the UN Human Rights Council in September this year. 

Click here for a copy of the HRLRC’s media release.

While the Special Rapporteur acknowledges Australia’s efforts to address the conditions faced by many Aboriginal communities in the Northern Territory, he expresses serious concerns about several problematic aspects of the Northern Territory Emergency Response that breach Australia’s international legal obligations. 

The Special Rapporteur’s report states that the Northern Territory Emergency Response measures:

• are incompatible with Australia’s human rights obligations, including the rights to non-discrimination and self-determination;
• cannot be viewed as proportional or necessary to achieve the stated objectives of the Emergency Response;
• limit the capacity of Aboriginal people to control or participate in decisions affecting them;
• have had the effect of generating or heightening racist attitudes among the public and the media against Aboriginal people;
• are not improving the lives of Aboriginal people in the Northern Territory; and
• have implications for the direction of the relationship between Australian Governments and Aboriginal people.

The Special Rapporteur has chosen to devote special and urgent attention to the matter of the Northern Territory Emergency Response in advance of proposed legislation being considered by the Senate that seeks to partially reinstate the operation of the Racial Discrimination Act 1975, but expand the income management provisions to apply across the entire country. 

The Special Rapporteur’s full report on his country visit will be released in the coming weeks. 

Click here for a copy of the HRLRC media release.

Proposed legislation has recently been introduced to Parliament that seeks to reinstate the operation of the Racial Discrimination Act 1975, but expand income management to apply across the whole of Australia.   Click here for further information about the proposed legislation.

The Centre has made a submission to the Inquiry that considers the human rights principles and standards that are most relevant to the Northern Territory Intervention and the proposed amendments.  In particular, the submission states that any measures imposed as part of the Northern Territory Intervention must:

• respect the fundamental right to equality and non-discrimination;
• involve the genuine participation of affected Aboriginal communities, respect the right of self-determination, and involve the free, prior and informed consent of those communities; and
• recognise that the rights of Aboriginal communities, women and children are closely linked and that women and children must be protected in a way that is racially non‑discriminatory.

The Centre is extremely concerned that:

• while the reinstatement of the Racial Discrimination Act is welcomed, its reinstatement will not take effect until 31 December 2010;
• there is a clear lack of evidence to demonstrably justify the effectiveness, and thus the necessity, of many of the Northern Territory Intervention measures, particularly income quarantining;
• the Federal Government’s consultations with affected communities have been manifestly inadequate and cannot be used to justify the continuation, and indeed the expansion, of the Northern Territory Intervention measures; and
• there has been a complete absence of any meaningful involvement by affected Aboriginal communities in both the formulation and the amendment of the Northern Territory Intervention measures. 

As a result, the HRLRC considers that the Government’s Bills in their current form will:

• continue to breach a number of Australia’s international human rights obligations;
• not be effective in addressing Aboriginal disadvantage;
• continue to undermine the relationship between Australian governments and Aboriginal Australians; and
• arbitrarily impact on the human rights of disadvantaged and vulnerable groups within our society, with the effect that they will become further isolated and excluded. 

Click here for further details about the Senate Committee’s inquiry. 

The Centre made a submission to the inquiry arguing that that decisions to grant or refuse a visa must comply with Australia’s international human rights obligations – particularly those contained in the International Convention on the Rights of Persons with Disabilities  ­– and the standards of non-discrimination set out in the Disability Discrimination Act (DDA). 

Neither international law nor the DDA prohibit all forms of discrimination.  However, for discrimination to be lawful it must be demonstrably justifiable and meet standards of reasonableness and proportionality.  The Centre considers that the current migration regime focuses on costs associated with disability in a way that is neither reasonable nor proportionate.  Importantly, the health requirement does not consider the economic and non-economic contributions that can be made by people with disability and their families. 

The letter explains that the reinstatement of the Racial Discrimination Act would ensure that laws, policies and practices designed to “Close the Gap” will be effective and beneficial for Indigenous peoples, and would demonstrate and confirm the Rudd Government’s commitment to the protection and promotion of human rights.

Click here for a copy of the HRLRC’s media release.