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“There’s not much point if the process is simply going to result in all the old outdated laws being rolled into a ‘new’ Act.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

“All political parties should show principled leadership and support the Expert Panel’s recommendations. The evidence is clear that Australians support equality, fairness, recognition and respect for Aboriginal and Torres Strait Islander peoples,” says the Human Rights Law Centre’s Director of International Human Rights Advocacy, Ben Schokman.

“Not all citizens are treated equally under the Australian Constitution. While it is commonly accepted that racial discrimination has no place in the Australian community, our Constitution continues to allow discrimination on the basis of race.”

“Given the Australian Constitution was drafted in the 1890s, it is not surprising that our foundational document still reflects some the racist attitudes of the time,” Mr Schokman said. “The Expert Panel’s recommendations provide us with a rare opportunity to update the Australian Constitution to better reflect our community’s contemporary values.”

The Expert Panel, which consists of Aboriginal and Torres Strait Islander leaders, constitutional experts and politicians from all parties, carried out an in-depth community consultation process, travelling to 84 urban and remote locations to host public events and also receiving 3,600 public submissions.

“Throughout the consultation process, Australians have made it clear that they want meaningful recognition for Aboriginal and Torres Strait Islander peoples in the constitution and that they want any racist elements removed. The Human Rights Law Centre also strongly considers that the Australian Constitution should promote equality and prevent and protect against racial discrimination,” Mr Schokman said.

In its submission to the Expert Panel in September 2011, the Human Rights Law Centre identified gaps in Australia’s compliance with its international human rights obligations, highlighting the need for constitutional reform.

“In recent years, a number of highly respected, independent international human rights bodies and experts have made specific recommendations in areas where Australia is failing to meet its legal obligations, particularly the rights of Aboriginal and Torres Strait Islander peoples. The Expert Panel’s recommendations show that Australians agree. Recognition and equality in the Australian Constitution would be a small but crucial step to help address the serious disadvantage and discrimination that is experienced by many Aboriginal and Torres Strait Islander peoples.”

A copy of the Human Rights Law Centre’s submission to the Expert Panel is available at http://www.hrlc.org.au/content/topics/indigenous/towards-constitutional-recognition-for-aboriginal-and-torres-strait-islander-peoples-29-sept-2011/.

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.

Ms Ezeilo is an independent expert mandated by the UN Human Rights Council to advocate for the prevention of trafficking in persons in all its forms and to encourage measures to uphold and protect the human rights of victims.

In her preliminary report, released on 30 November 2011, Ms Ezeilo said that “Australia has demonstrated strong leadership in combating trafficking in persons regionally and domestically, however it needs to devote greater attention to the rights and needs of victims.”

Ms Ezeilo highlighted the need to improve support services, including accommodation, legal assistance and counselling services, to suspected victims of trafficking and de-link government support from participation in criminal justice processes. She also praised the recent release of an exposure Bill to expand the definition of trafficking to better address labour exploitation and forced marriage.

During Ms Ezilo’s country mission, the Human Rights Law Centre provided a briefing paper on the application of people smuggling laws to persons who may have been trafficked. The briefing paper makes the point that where a person has been recruited by means of deception for the purpose of exploitation – as may be the case for many of those charged with people smuggling offences – they meet the definition of a trafficked person under the Protocol and should be provided with adequate assistance and protection, not criminalised and subjected to lengthy jail terms in Australian prisons.

On this topic, Ms Ezilo expressed her concern about “the possibility of trafficked persons including children being arrested, detained for long periods and deported for breach of migration regulations without proper identification especially given the strong migration control policy of Australian government.”

A full report of the Special Rapporteur’s mission will be submitted to the UN Human Rights Council in June 2012.

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.

HRLC outlines further issues for Australia to include in report to UN Committee against Torture (3 Nov 2011)

On 3 November 2011, the HRLC made a submission to the Australian Government outlining the issues of torture and ill-treatment that Australia should address in its forthcoming periodic report to the UN Committee against Torture, in addition to those already identified by the Committee in the List of Issues Prior to Reporting. The submission identifies five key issues which were not addressed in the LOIPR, but which the HRLC considers engage Australia’s legal responsibilities in relation to torture and ill-treatment, being:

• criminalisation and prevention of torture;
• non-refoulement and bilateral and regional arrangements to address people smuggling;
• treatment of prisoners and conditions of detention;
• involuntary psychiatric treatment; and
• violence against women.

UN Committee gives “Please Explain” list to Australia (21 Dec 2010)

HRLC submission to UN Committee against Torture on Australia for preparation of List of Issues Prior to Reporting (24 Aug 2010)

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.

In preparation for that mission, and at the request of the UN Office of the High Commissioner for Human Rights, the Human Rights Law Centre and Anti-Slavery Australia prepared a major Briefing Paper to the Special Rapporteur. Mallesons Stephen Jaques provided substantial pro bono research assistance in preparing the paper.

The Briefing Paper provides an overview of trafficking in persons in Australia, including:

• the main forms and manifestations of human trafficking;
• existing or planned laws, policies and plans of action to address trafficking in persons;
• existing or planned bilateral or multilateral agreements to address trafficking;
• support services for victims of trafficking; and
• priorities for reform.

In the view of both the HRLC and Anti-Slavery Australia, the most effective way to address human trafficking and severe exploitation is to “incorporate a human-rights based approach into measures taken to prevent and end trafficking in persons and to protect, assist and provide access to adequate redress to victims, including the possibility of obtaining compensation from the perpetrators”. From a human rights perspective, we have identified the following priorities for reform:

• reviewing Australia’s anti-trafficking laws to ensure compliance with Australia’s international obligations including obligations to prohibit forced labour and practices similar to slavery;
• investing in research to strengthen our understanding of emerging issues such as forced marriage, child trafficking and organ removal;
• consulting with community stakeholders to develop legal and policy initiatives to respond to the emerging issue of forced marriage, including multilingual guidelines for government agencies and NGOs working with people who have experienced forced marriage;
• strengthening pathways to effective remedies for trafficked people by building effective networks and referral protocol between support services and pro bono lawyers representing clients in compensation matters;
• facilitating and supporting family reunion between trafficked people and dependent children;
• improving victim support by ensuring all trafficked people have appropriate access to safe and sustainable housing;
• developing protocol and guidelines for government agencies and support services working with child victims of trafficking to ensure the protection of human rights;
• improving coordination between federal and state government agencies to ensure a coordinated and efficient response to trafficking;
• developing a publicly available resource on accommodation options for trafficked people, which provides information and guidance on the provision of housing to trafficked people; and
• developing multilingual information and resources for all people entering Australia and for communities identified as most vulnerable to trafficking.