EFIC is the Australian Government provider of export credits, insurance, reinsurance, and other financial services that support Australian exports and overseas investments.

Like most export credit agencies globally, EFIC assists exporters and private providers of insurance and finance products in circumstances where the private sector is unwilling or unable to provide support.

The role of ECAs has expanded considerably due to globalisation and the exponential growth of global markets. In particular, ECAs play a significant role as providers of finance in the developing world. ECAs may offer loans to developing countries on the condition that they buy the exports of the lending country, or they may provide guarantees or insurance for the loans made by commercial banks or exporters to developing countries.

Given the importance of ECAs in the global economy and their role in supporting corporate activity in developing countries, ECAs are in a unique position to promote human rights compliance in projects seeking ECA support. However, EFIC and other ECAs have a poor history of incorporating human rights compliance mechanisms into their operations. As a result, EFIC and other ECAs have facilitated corporate activity that has been associated with significant adverse human rights impacts.

For example, ECA-backed projects have been associated with forced displacement of local populations, poor conditions of work, suppression of peaceful protests and the rights to freedom of expression and association, exposure to environmental contaminants and the destruction of cultural sites.

The HRLC submission considers EFIC’s international human rights obligations and concludes that EFIC’s current policies and operations do not comply with its obligation to protect human rights as established under the framework set out by the UN Special Representative on Business and Human Rights, Professor John Ruggie.

The HRLC recommends that EFIC’s policies should:

• require that EFIC undertake adequate human rights due diligence;
• require due diligence by EFIC’s client companies; and
• state that EFIC will not support activities that are likely to cause or contribute to human rights abuses.

The implementation of these policies, in conjunction with appropriate transparency requirements and grievance mechanisms, would be a significant step towards the implementation of EFIC’s international human rights obligations.

Launching the strategy, Minister Rudd outlined that “the fundamental purpose of Australian aid is to help people overcome poverty. This also serves Australia’s national interests by promoting stability and prosperity both in our region and beyond. We focus our effort in areas where Australia can make a difference and where our resources can most effectively and efficiently be deployed.”

Responding to this mission statement, the Australian Council for International Development said that “The new purpose of the program, focused squarely on helping people overcome poverty, brings clarity and focus. It stresses that it is in Australia’s national interest to assist people in the developing countries that surround Australia – and beyond.”

Under the strategy, the Government has developed “five strategic goals for the overall aid program” and defined “ten specific development objectives that seek to give effect to these strategic goals”.

Regrettably, and contrary to the recommendations of many NGOs (including in the HRLC submission), the Independent Review Report did not recommend, and the new strategy does not adopt, a human rights-based approach to aid and development. This is despite strong evidence that a human rights-based approach is empowering and can substantially enhance aid effectiveness and efficiency.

According to the Human Rights Law Centre’s Rachel Ball, “A charity-based approach to aid and development issues will only take us so far. In devising, delivering and assessing aid programs, the Australian Government must acknowledge systemic inequalities and unjust power relations. It is no coincidence that time and time again, the hardest hit by poverty and natural disasters are the marginalised and disadvantaged.”

This disappointment notwithstanding, it is very pleasing that the ten “development objectives” include a focus on empowering women, girls and people with disability. According to ACFID CEO, Marc Purcell, “Women make up more than 50% of the world’s population. Human development can only occur if discrimination and inequality between men and women is addressed front and centre. We welcome the prioritisation of gender equality.”

The ten development objectives also include a commitment to strengthen civil society and to “improve security, enhance justice and human rights for poor people”. According to Minister Rudd, “human rights, for the first time therefore, has been formally included within the core development objectives of the Australian aid portfolio”. Mr Purcell said that ACFID is “very pleased that the Government has recognised the importance of civil society in building human development and expanding freedoms in communities.”

The mission focused on the human rights impacts and implications of Australia’s aid, development, trade and investment policies.  The report contains 10 concrete recommendations for the Australian Government to better promote and protect human rights, including the right to development, through aid and trade.

The Human Rights Law Centre was pleased to make an oral statement to the Council in response to the report and to recommend that the Australian Government adopt a human rights-based approach to foreign policy, poverty and development.

17^th Session of the UN Human Rights Council – Agenda Item 3 – 1 June 2011

Statement by Human Rights Law Centre and National Association of Community Legal Centres

Thank you Mr President.

The National Association of Community Legal Centres and the Human Rights Law Centre warmly welcome the report of the Independent Expert on Foreign Debt and Human Rights. 

The Independent Expert undertook a mission to Australia in February.  We were pleased to convene a number of NGO consultations during this visit.

Mr President, the promotion, protection and realisation of human rights should be a primary goal and instrument of Australian foreign policy.  The IE’s report makes a range of concrete and practical recommendations to achieve this.  We deeply regret that Australia’s statement yesterday in response focused on alleged inaccuracies in the report rather than substantively and seriously engaging with its recommendations.

In line with the Independent Expert’s recommendations, we urge the Australian Government to develop a comprehensive strategy on human rights and foreign policy. 

We particularly urge the Australian Government to explicitly adopt a human rights-based approach to aid and development and to increase ODA to the internationally agreed target of 0.7% of GNI.  Australia should also increase funding to programs explicitly directed towards the promotion and protection of human rights, such as AusAID’s Human Rights Grants Scheme and funding for the UN Office of the High Commissioner for Human Rights.

Mr President, human rights should be central to Australia’s trade policy.  We urge the Australian Government to include human rights safeguards in trade and investment agreements.  Australia should also undertake Human Rights Impact Assessments as a core part of doing business abroad, including in the areas of trade, investment and military cooperation.

While in Australia, the Independent Expert considered the operation of vulture funds.  His report refers to a November 2010 case in which an Australian court found in favour of a vulture fund operator, ordering the Democratic Republic of Congo to pay in excess of $30 million.  This undermines debt relief initiatives and development.  We call on the Australian Government to enact legislation to prevent profiteering by vulture funds in Australia.

Mr President, the National Association of Community Legal Centres and the Human Rights Law Centre also welcome the report of the Independent Expert on Human Rights and Extreme Poverty.

In particular, we commend the Independent Expert on her important work regarding the criminalisation of homelessness and poverty. 

Many Australian jurisdictions continue to criminalise the effects of homelessness and poverty.  In Victoria, for example, begging is a criminal offence punishable by imprisonment.  Across Australia, discrimination on the grounds of homelessness and poverty remains lawful and widespread. 

We strongly support the Independent Expert in her continuation of this work and call on all states to strengthen economic, social and cultural rights so as to address the causes of homelessness and poverty rather than criminalise their consequences. 

Thank you Mr President.

ENDS

Following the HRLC statement, the Independent Expert made a statement in response to Australia.  In that statement he set out that:

1. Despite differences of opinion with the Australian Government over aspects of his report, he is committed to an ongoing and constructive dialogue about human rights, aid and development.

2. A human rights-based approach to development does not merely comprise of funding programs which may promote and protect human rights.  Rather, it is an approach to development which is participatory, empowering, non-discriminatory and focuses first and foremost on the most marginalised and disadvantaged.

3. It is not only the Independent Expert who recommends that Australia adopt a comprehensive human rights-based approach to development.  Such an approach is also urged by many submissions to the recent Australian aid effectiveness review, including those of the Australian Human Rights Commission and the Human Rights Law Centre.

On 8 November 2010, the Human Rights Law Resource Centre made a Submission to UN CESCR on the Right to Sexual and Reproductive Health of Prisoners and Detainees.

The HRLRC submission examines the particular sexual and reproductive health rights of prisoners, noting that the principles referred to in the submission also apply to people held in immigration detention, psychiatric facilities and other places of detention. 

The HRLRC considers that special consideration should be given to the rights of persons in detention in the general comment because:

• persons deprived of liberty are placed in a vulnerable position; and
• the fact of detention imposes upon the State additional positive duties to ensure the protection of their human rights.

Furthermore, the HRLRC considers that the rights of women detainees require particular attention in order to ensure non-discrimination in the provision of the right to sexual and reproductive health.

If granted leave, the HRLRC’s submissions are directed to the role that s 7(2) of the Charter plays in relation to:

• s 38 of the Charter when assessing the lawfulness of actions or decisions of public authorities; and
• the human rights contained in Pt 2, and particularly the right to privacy and reputation in s 13 and its express protection of a right against unlawful or arbitrary interference.

In essence, the HRLRC’s submissions will seek to address the following questions:

• Is an action or decision of a public authority only unlawful within the meaning of s 38 of the Charter if that action or decision cannot be justified pursuant to s 7(2) of the Charter?
• Is the scope of each of the rights enacted in Pt 2 of the Charter qualified by s 7(2) of the Charter?

The matter is listed for hearing by the Court of Appeal on 18 November 2010.

The report focuses on the standard of living and quality of health care and health services for Aboriginal and Torres Strait Islanders, people in prison and immigration detainees. 

Section II the report considers the international and national legal framework within which the right to health is considered in Australia, and discusses the recognition of international human rights under Australian law.  On this issue, the Special Rapporteur concludes that the Australian Government should take steps to comprehensively enshrine human rights, including the right to health, in Australian law.  He further recommends that such rights be recognized as enforceable and justiciable. 

Section III of the report considers the issue of Indigenous health, including as to health status, the underlying social determinants of health (including severe socio-economic disadvantage and social exclusion), and access to health care services and primary health care. 

Section IV of the report focuses on the right to health of detainees in Australia, including prisoners and immigration detainees, and notes that all persons deprived of liberty are entitled to the right to the highest attainable standard of health, to be treated with humanity and dignity, and to have equal access to health services as those in the community.  The Special Rapporteur observed inconsistencies and inequalities in treatment and and access to services across different facilities, and was particularly concerned with the disproportionate impact of incarceration on Indigenous populations, as well as persons with mental illness.  He also observed that Australia’s continuing policy of mandatory detention poses significant barriers to the realization of the right to health for asylum seekers and refugees.

Section V of the report sets out the Special Rapporteur’s conclusions and recommendations pertaining to each of the areas discussed above, including that Australia should:

• Ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment, and establish an independent national preventive mechanism to conduct regular inspections of all places of detention;
• Pass legislation restoring the Racial Discrimination Act vis-à-vis the Northern Territory as a matter of priority, and introduce constitutional protection of the rights of Indigenous peoples;
• Develop a national health policy which includes a detailed plan for the full realization of the right to health;
• Implement legislative or other guarantees to ensure that the opinions of national representative Indigenous bodies, such as the National Congress of Australia’s First Peoples, are taken into account;
• Give priority to education in human rights throughout the country, particularly in respect of education for health professionals;
• Address, as a matter of urgency, the qualitative and quantitative inadequacy of educational services for remote communities;
• Ensure that Indigenous communities have control over allocation of resources, by providing local governance monitoring structures;
• Allocate additional funding to health promotion programmes throughout the Northern Territory;
• Increase engagement with community health providers by prisons, which would improve continuity of care and facilitate reintegration into the community;
• Increase resource allocation for diagnosis, treatment and prevention of mental illnesses within prisons;
• Assess and invest in the primary health care sector throughout the prison system;
• Undertake research regarding indigenous incarceration issues as a matter of urgency, and ensure that new interventions concerning prevention of incarceration and treatment during incarceration are evidence-based and appropriately evaluated;
• Reconsider the policy of mandatory detention of irregular arrivals;
• Assess the viability of providing on-site interpreters in immigration detention facilities;
• Place detainees with a history of torture and trauma in community detention; and
• Reconsider the appropriateness of detention facilities continuing to operate on Christmas Island, and assess provision of mental health services to this population as a matter of priority.

The Special Rapporteur’s report is at www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.Add4.pdf. 

A Briefing Paper prepared by the HRLRC to assist the Special Rapporteur is available at www.hrlrc.org.au/content/topics/esc-rights/right-to-health-briefing-paper-on-australia-to-un-special-rapporteur-on-the-right-to-health-sept-2009/.  

The Centre’s submission outlines practical steps and measures, including legislative, administrative and financial measures, for the Australian Government to improve the promotion and protection of social and economic rights, including in relation to:

• the legal protection of rights;
• the mandate, functions and powers of the Australian Human Rights Commission;
• anti-discrimination legislation;
• the Northern Territory Intervention;
• Indigenous self-determination and political participation;
• gender equality;
• homelessness;
• Indigenous health, education and language and land rights;
• mandatory immigration detention; and
• human rights education in Australia. 

Justice Bell, sitting as President of the Victorian Civil and Administrative Tribunal, has held that the Director of Housing acted unlawfully under s 38(1) of the Charter in seeking, without adequate justification, to evict a refugee family from social housing in breach of their right to family and the home under s 13(a).  His Honour further held that this unlawfulness invalidated the Director’s application for a possession order under s 344 of the Residential Tenancies Act. 

Facts

Warfa Sudi, a Somalian refugee, and his three year old son live in a home owned by the Director of Housing.  The tenancy agreement for the home was originally made with Mr Sudi’s mother, Qamar Ali, but Mr Sudi and his son continued to occupy the premises after Ms Ali died from cancer.  The Director of Housing subsequently made application under s 344(1) of the Residential Tenancies Act for a possession order to enable him to evict Mr Sudi.

It was common ground that the Director of Housing is a public authority under the Charter and, as such, is required by s 38(1) to act compatibly with human rights and give proper consideration to human rights in making decisions. 

Mr Sudi argued that the Director’s decision to seek to evict him breached his human rights under s 13 (right to privacy, family and the home), s 17 (protection of families and children) and s 19 (cultural rights) of the Charter.  Mr Sudi further argued that, by consequence of this unlawfulness, the Director was not entitled to seek to him.

The Director of Housing did not seek to justify the application for a possession order as a permissible limitation on human rights under s 7(2) of the Charter, but instead submitted that the Tribunal had no jurisdiction to consider the lawfulness of his actions under the Charter, that being a matter reserved to the Supreme Court. 

Decision

Summary

Justice Bell held that the Tribunal had jurisdiction to consider the Charter issues in the case.  His Honour further held that the decision and conduct of the Director of Housing in seeking to evict Mr Sudi and his son without justification was a breach of the right to family and the home under s 13(a) of the Charter and thus unlawful pursuant to s 38(1).  As the Director’s making of an application for a possession order was ‘unlawful’ under the Charter, it was not a valid application properly made under s 344 of the Residential Tenancies Act.  The Director’s application was therefore dismissed. 

Human Rights Jurisdiction of Tribunal

Justice Bell held that the Tribunal had jurisdiction to consider and determine the Charter issues in the case, stating that ‘when issues under the Charter legitimately arise in applications before the Tribunal, it should resolve them if it can properly do so’.  His Honour pointed out that ‘human rights remedies must be accessible in order to be effective’ and that, were the Tribunal not to have jurisdiction in the first instance, litigants in circumstances such as Mr Sudi would be forced to have their matters partly heard in the Tribunal and partly heard in the Supreme Court.  This would be a ‘bad outcome’ for access to justice and contrary to the principles of ‘finality and complete dispute resolution’. 

Right to Family and the Home: s 13(a)

Section 13(a) of the Charter provides that ‘a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’. 

The requirement of ‘legality’ requires that any interference with this right be governed by ‘clear and publicly accessible rules of law’ and by procedures that are ‘predictable and foreseeable’. 

The prohibition against ‘arbitrary interference’ is in addition to the requirement of lawfulness, and requires that any interference be reasonable, necessary and proportionate. 

After considering jurisprudence from the UN Human Rights Committee, the European Court of Human Rights, the United Kingdom and South Africa, Bell J held that evicting or seeking to evict someone from public or social housing constitutes an interference with their right to home and, where a family is living in the premises, also amounts to an interference with their right to family:

Evicting people living in public housing is a severe infringement of their human rights, especially those which protect the family and the home.  Unless interference is demonstrably justified, it breaches human rights and is ‘unlawful’ under the Charter.  The onus is on the person seeking to uphold the infringement to establish this justification.

Given the ‘serious interference’ with s 13(a) in this case, Bell J did not consider it necessary to determine whether other human rights were engaged by the circumstances. 

Limitations on Rights: s 7(2)

Section 7(2) of the Charter provides that any limitation on human rights must be reasonable and demonstrably justifiable.  Following the decisions of DAS v VEOHRC [2009] VSC 381 and R v Oakes [1986] 1 SCR 103, Bell J held that:

• the onus of establishing that a limitation of human rights is reasonable and justified is on the party seeking to uphold the limitation;
• in many cases, this requires evidence;
• the standard of proof is high; and
• the evidence must be cogent and persuasive. 

In the present case, the Director of Housing failed to provide any justification or evidence in support of the interference with s 13(a) constituted by the possession order application.  Accordingly, Bell J held that the making of the application was ‘unlawful’ under s 38(1) of the Charter. 

Consequence of Unlawfulness

Justice Bell then turned to the question as to the consequence of the Director’s unlawfulness under the Charter in the context of an application for a possession order under the Residential Tenancies Act.  On this issue, His Honour held that:

An application which the director has purportedly made under s 344(1) of the Residential Tenancies Act in breach of his human rights obligations under s 38(1) of the Charter, and which is therefore ‘unlawful’, is not a valid and proper application… It is in law no application at all and does not enliven the jurisdiction of the tribunal to make the possession order sought.  The making of the director’s application was itself an ‘unlawful’ act… In a proceeding under s 344(1), the tribunal cannot just shut its eyes to the unlawfulness of the making of the application, as the director suggests I do.  That would rob “unlawful’ of the potent force of its natural meaning, create confusion about the consequences of breaching human rights and mock the rule of law, including the human rights protections in the Charter, which parliament has wisely obliged public authorities to respect, on pain of their actions being ‘unlawful’.

Accordingly, Bell J dismissed the Director’s application for a possession order. 

The decision is available here.

Phil Lynch is Director of the Human Rights Law Resource Centre

The Centre submits that the future direction of public housing requires a holistic rights-based approach from government, based on the legislative entrenchment of the right to adequate housing.  The Victorian Government has the opportunity to be a leader in the protection of housing rights, by introducing legislative protection of a right to adequate housing and a principled and workable framework in which to address the future of public housing and interconnected issues, such as homelessness, disadvantage and poverty.  It would also provide a comprehensive and coherent framework within which to address other issues identified in the terms of reference, including access to public housing, impacts on marginalised and disadvantaged groups, and safety and location.

The legislative right to adequate housing would not create a right to housing on demand, but instead would be implemented by:

• requiring the provision of emergency housing to people with priority needs;
• preventing arbitrary, unlawful or forced evictions from public housing;
• ensuring the participation of people living in public housing or experiencing homelessness in the decision making and policy that affects them;
• addressing the intersecting issues of discrimination suffered by people in public housing or experiencing homelessness; and
• providing remedies for the violation of the right to adequate housing.

The Human Rights Law Resource Centre considers that all human rights are interdependent, mutually reinforcing and indivisible.  We consider that an Australian Human Rights Act should enshrine social and economic rights and that both international law and Australian constitutional law clearly establish that such rights are justiciable and enforceable. 

Consistent with this view, the Centre obtained a Memorandum of Advice from Peter Hanks QC, Debbie Mortimer SC, Associate Professor Kristen Walker and Graeme Hill on the justiciability of social and economic rights under a Commonwealth Human Rights Act. 

Contrary to the brief advice from the Solicitor-General, this advice clearly states that:

• there is no necessary constitutional objection to including economic and social rights in any federal Human Rights Act;
• economic and social rights are no more broadly expressed than civil and political rights, which are capable of being interpreted and applied in the exercise of federal judicial power;
• decisions about social and economic rights may have implications for the allocation of budgetary resources, however the same is true for all human rights; and
• it is an overstatement to say that ICESCR rights do not contain judicially manageable standards.

The opinion concludes that the real issue is whether economic and social rights can be appropriately expressed and the court’s role limited. So long as rights are framed so as to give them specific content, and the court’s role limited to a consideration of whether the government’s action was reasonable within the available resources (as under the South African constitution), social and economic rights are capable of being protected and promoted in Australian law.

In light of the the findings of the Consultation as to the importance of ESC rights, Australia’s international obligations as to the interdependent protection and promotion of all rights, and the attached advice as to the constitutional justiciability of ESC rights, it is imperative that an Australian Human Rights Act enshrine all civil, political, economic, social and cultural rights and that such rights be justiciable and enforceable.