The Bill, introduced by Greens’ Senator Sarah Hanson-Young, responds to concerns about Australia’s treatment of children and persons claiming to be children who are suspected of people smuggling crimes.

The Bill was introduced after revelations that a number of Indonesian children arriving in Australia onboard people smuggling boats were being detained and imprisoned. Some of those children were detained for significant amounts of time in Australia, including in adult correctional facilities. A number of those children were detained on the basis of now discredited wrist x-ray analysis techniques.

If passed, the Bill would make a number of important changes including:

• enshrining the ‘benefit of the doubt’ principle in domestic law to ensure that persons who claim to be children are treated as such, unless a court decides otherwise;
• encouraging best-practice when it comes to assessing and proving a suspect’s age;
• enacting time limits to reduce waiting periods for the laying of criminal charges and applying for age determination hearings before a Magistrate; and
• ensuring that no child charged with people-smuggling offences is detained in an adult correctional facility.

The HRLC considers that that enactment of the Bill is necessary to give effect to Australia’s obligations under international human rights law, including the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.

In a major submission to the Commonwealth Attorney-General, who is reviewing the laws, the Human Rights Law Centre has called for the Government to use this critical opportunity to address gaps in the laws and strengthen existing protections.

The HRLC’s Director of Policy and Campaigns, Rachel Ball, said there are a number of federal anti-discrimination laws in Australia and the Government’s decision to consolidate them into a single Act should be welcomed. However, Ms Ball warned that without updating the substance of the laws being consolidated, existing flaws would continue to hamper Australia’s efforts to eliminate discrimination and continue to put Australia in breach of international law.

“There’s not much point if the process is simply going to result in all the old outdated laws being rolled into a ‘new’ Act. This opportunity to weed out existing problems should be used to also modernise and strengthen Australia’s equality laws to ensure they meet our international human rights obligations,” Ms Ball said.

The HRLC urges the Government to make certain the new Act includes a positive duty to eliminate discrimination and promote equality, similar to the current laws in Victoria and the United Kingdom.

“To create a society free from discrimination, you need your equality laws to be proactive. So as well as providing more accessible and user-friendly remedies for individual cases of discrimination, laws needs to adress structural inequalities if they are to bring about substantive equality,” Ms Ball said.

Specifically, the HRLC recommends equipping the Australian Human Rights Commission with investigative and compliance powers allowing the commission to issue compliance notices to organizations and enter binding agreements with them.

The HRLC’s submission builds a case for expanding protections to cover all areas of public life and additional attributes, including a person’s status as homeless or a victim of domestic violence.

“Research has shown that discrimination is a major causal factor of homelessness and can systematically exclude people from access to goods, services, the justice system, health care, employment and housing. This is something that improved equality laws could help to address,” Ms Ball said.

The HRLC also calls on the Federal Government to reconsider its position regarding permanent exemptions for specific areas of public life – including the exemption for religious organisations which the Government has indicated it will not be altering.

“Current exemptions for religious bodies are arbitrary and outdated. Religious bodies should not be above the law, yet current laws effectively give them a free license to discriminate. This needs to be overhauled,” Ms Ball said.

The submission provides an overview of how existing technical and legal barriers to the elimination of discrimination could be removed. For example, sharing the burden of proof between a person making a complaint and the respondent along with reforming the problematic comparative tests for discrimination, would make equality law more accessible and therefore tangible for general members of the public.

The Government is due to release an exposure draft of the legislation soon.

A summary of the HRLC submission as well as a full copy can be found online at:  http://www.hrlc.org.au/content/realising-the-right-to-equality/

For further information or comments please contact:
Rachel Ball, HRLC Director of Policy and Campaigns, on 0434 045 919 or rachel.ball@hrlc.org.au

Following Nicola Roxon’s appointment as Attorney-General on 15 December 2011, the Human Rights Law Centre prepared a Briefing Paper for the Attorney on Human Rights Iniatiatives for 2012-14.

The Briefing Paper details seven actions which  the Attorney-General could take to demonstrate principled human rights leadership, promote equality and human dignity, enhance government accountability and do better in guaranteeing fairness for all.

Ahead of the 50th anniversary this Friday of the first raising of the West Papuan ‘Morning Star’ flag, the Human Rights Law Centre and Human Rights Watch have called on Minister Rudd to publically and unequivocally condemn the excessive use of force and suppression of peaceful protest and also deploy Australian embassy staff to Papua to monitor and observe anticipated events to mark the anniversary.

“Australia must unequivocally support the human rights of all persons to freedom of expression, association and assembly,” said Tom Clarke from the Human Rights Law Centre. “It is not in Australia’s strategic interest to have a festering human rights problem on our doorstep.”

“The default policy of successive Australian Governments has seemingly been to politely look the other way while human rights abuses occurred on our doorstep. This approach desperately needs rethinking. The problem of violence and repression in West Papua needs to be acknowledged and addressed,” Mr Clarke said.

The ‘Morning Star’ flag was first raised in 1961 when West Papua was moving towards independence with assistance from its colonial Dutch Government and the Australian Government. By this time, Papua already had its own government officials. However, in 1962 a chain of events eventually led to Indonesia taking control of Papua and well documented military violence and human rights abuses have plagued the province since. Today Papuans face imprisonment for simply raising the ‘Morning Star’ flag.

The letter urges Minister Rudd to call for a full and impartial investigation into recent use of force, including fatal force, by Indonesian police and military forces on a peaceful assembly on 19 October. The attacks on the Third Papuan People’s Congress resulted in at least three protesters being killed, at least 90 being injured and approximately 300 arrested.

“The West Papuan people do not enjoy the types of basic rights that we take for granted here in Australia. The right to meet to discuss ideas and express political beliefs are severely curtailed in West Papua. The international media is heavily restricted in travelling to Papua and reporting on events there. We are concerned that without international attention being focused on West Papua, human rights abuses are likely to continue,” Mr Clarke said.

The letter also requests that Minister Rudd urge the Indonesian Government to release all persons detained in Papua for the peaceful expression of their political views, including Filep Karma who the UN Working Group on Arbitrary Detention advises should be immediately released.

“Minister Rudd should follow US Secretary of State, Hilary Clinton’s lead and directly raise concerns with Indonesia about the violence and abuse of human rights in West Papua. If he has a ‘special relationship’ with Indonesia, now is the time to make the most of it and, as a friend, help Indonesia meet the commitments that it’s signed up to under the International Covenant on Civil and Political Rights,” Mr Clarke said.

The Human Rights Law Centre will be hosting a public seminar in Melbourne with Human Rights Watch’s Elaine Pearson looking at this and other human rights issues in Asia on Wednesday 7 December. Further details can be found online here.

For further comments from HRLC: contact Tom Clarke on tom.clarke@hrlc.org.au or 0422 545 763

For comments from HRW: contact Phil Robertson on RobertP@hrw.org or +66 85 060 8406

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.

The Bill amends the people smuggling offences in the Migration Act 1958.

Existing sections 233A and 233C of the Migration Act establish a primary people smuggling offence and an aggravated people smuggling offence. Both of these offences are established inter alia where another person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry to Australia, of another person that is a non-citizen, and that non-citizen had, or has, no lawful right to come to Australia.

The Bill retrospectively defines “no lawful right to come to Australia” contained in the people smuggling offences to mean no lawful right under domestic law to come to Australia. This is notwistanding that a person may have a clear and lawful right under international law to come to Australia.

The HRLC Submission to the Senate Legal and Constitutional Affairs Committee focuses on the human rights implications of the Bill.

In particular, the HRLC has identified the following concerns:

• the Bill contravenes the prohibition on retrospective criminal laws contained in article 15 of the International Covenant on Civil and Political and Political Rights, Australian common law and Government guidelines;
• the mandatory sentence of 5 years with a 3 year non-parole period that flows from the offence of aggravated people smuggling contravenes the prohibition on arbitrary detention (article 9 of the ICCPR) and the right to a fair trial (article 14 of the ICCPR); and
• the Bill violates Australia’s obligation to act in “good faith” by seeking to indirectly avoid its obligations under the Convention Relating to the Status of Refugees.

In essence and effect, the Bill toughens an already draconian regime which threatens to see hundreds of impoverished Indonesian fishermen and boys jailed for a minimum of 3 years. This regime violates human rights, threatens the rule of law, costs taxpayers tens of millions of dollars in legal fees and detention costs and is likely to have no impact on people smuggling. The HRLC recommends that the Committee call for the Bill to be rejected.

The Monitor was appointed under the Independent National Security Legislation Monitor Act 2010 (Cth) and is empowered to review and report on Australia’s counter-terrorism and national security legislation, including its compliance with Australia’s international human rights obligations.

The HRLC submission identifies a range of provisions which require reform to ensure compatibility with human rights, including those relating to:

• the definition of “terrorist act”;
• control orders;
• preventative detention;
• ASIO detention powers;
• the listing of “terrorist organisations”; and
• offences relating to association with a terrorist organisation.

The HRLC submission also identifies that the onus is on the government to keep Australia’s counter-terrorism laws and measures under continual review so as to ensure that any infringement of human rights is demonstrably justified, remains strictly necessary, and is reasonable and proportionate.

In its submission to the Expert Panel, the HRLC:

• outlines Australia’s international human rights obligations and highlights relevant recommendations that have been made by United Nations human rights bodies regarding the need for constitutional reform in Australia; and
• provides an overview of relevant human rights obligations and principles that should guide the meaningful participation of, and consultation with, Aboriginal and Torres Strait Islander peoples in the process of considering constitutional recognition.

Further information about the process to consider recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution is available at www.youmeunity.org.au.

On 8 July 2011, the Attorney-General released a Draft Baseline Study for comment as the first step towards implementing a National Human Rights Action Plan. To be effective, a Baseline Study must provide a comprehensive and frank appraisal about the state of human rights in Australia.  This is because the issues identified in the Baseline Study form the basis for future government action under the National Action Plan and also for the development of government practices beyond the National Action Plan.

On 9 September 2011, the Human Rights Law Centre made a major submission on the draft Baseline Study entitled A Sound Baseline for Human Rights in Australia.  The submission builds on the extensive recommendations made in Making Rights Real: A National Human Rights Action Plan for Australia.  Making Rights Real was a major submission made by the HRLC in response to the Attorney-General’s Background Paper which set out the Government’s proposed approach to developing the National Action Plan as well as a Baseline Study.

A Sound Baseline for Human Rights in Australia aims to provide detailed and constructive recommendations on the draft Baseline Study.  The submission makes the following general comments on the Draft:

• procedural aspects of the development of the Draft have not been aligned with the recommendations of Making Rights Real and international best practice;
• the Draft selectively refers to positive examples of initiatives in states and territories without identifying the problems and deficiencies in other states and territories;
• certain critical areas affecting human rights are missing or require further discussion;
• key sources of prior authoritative research and evidence have been omitted;
• the Draft does not reference all relevant all international recommendations from treaty bodies, reports of Special Procedures of the UN Human Rights Council and UPR recommendations; and
• the “Issues a National Action Plan Could Address” sections of the Baseline Study do not clearly identify and articulate the issues in question and should do so.  To the extent that actions are proposed, these should be structured as action points following the guidelines set out in the UN Handbook.

In addition to these general comments, the submission includes:

• recommendations for amendments or additions in specific sections of the Draft;
• recommendations for additional sections or topics to be added to the Draft; and
• where appropriate, suggestions as to additions or refinements to the lists of “issues a national action plan could consider” in the Draft, but otherwise refer the Government to the more detailed suggestions as to substantive areas and actions that could be included in the National Action Plan set out in Making Rights Real.

For more information and resources on the National Human Rights Action Plan process please visit our dedicated website www.humanrightsactionplan.org.au

The Centre is concerned about the impact of the proposed laws on women and children experiencing family violence and considers that they would constitute unjustifiable limitations on human rights contained in the Charter of Human Rights and Responsibilities Act 2006. Child abuse is a critical issue that must be addressed as a matter of urgency and priority. However, measures to address child abuse should be appropriately adapted to achieve this aim and should not punish women who are themselves victims of violence.

The submission is available here.