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.

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

The letter was written as further evidence emerges of serious violations of human rights and international humanitarian law against Tamil civilians by Sri Lanka’s military, including systemic rape, murder and the targeting of hospitals and health care clinics.

The text of the letter is set out below:

Subject: Sri Lanka as the host of CHOGM 2013

Dear Commonwealth Heads of Governments,

This letter follows an earlier letter on this subject that many of us jointly wrote to Commonwealth Foreign Ministers, prior to their meeting in New York on 22 September 2011. In the absence of any public pronouncement by Foreign Ministers on this issue we have to assume that no decision has yet been taken to put in place a process for assessing the suitability of Sri Lanka’s candidature for hosting the 2013 Commonwealth Heads of Government Meeting (CHOGM). In this context, we recall your 2009 decision to defer Sri Lanka’s candidature as host and seriously urge you to consider a similar postponement at CHOGM 2011.

We reiterate that Sri Lanka continues to face allegations of human rights violations that are of an extremely serious nature. These allegations have been found credible by none less than a Panel of Experts appointed by the UN Secretary General. In addition to this, several other well grounded allegations exist about the lack of fundamental freedoms within Sri Lanka, which it is charged, has resulted in serious violations of freedom of expression, association and movement as well as entrenched impunity for past human rights violations. Together these make Sri Lanka one of the most acute human rights situations in the Commonwealth.

In a recent response to one of our organisations the Commonwealth Secretary-General stated that the decision for Sri Lanka to host the 2013 CHOGM was taken by CHOGM 2009 and that it needs no further confirmation from CHOGM 2011. He also informed that the Commonwealth is waiting for the report from Sri Lanka’s Lessons Learned and Reconciliation Commission (LLRC) to decide its policy on the country. The report is due in November 2011 after CHOGM 2011, when it will be too late for any further consideration of the CHOGM venue. On the other hand, though the Commission’s report may deserve a fair hearing, it is important to remember that the UN Panel of Experts and numerous civil society organisations have cast doubts on the impartiality and effectiveness of the LLRC. In other words waiting for the LLRC report would mean that, due to paucity of time and the complexities of procedures involved, Sri Lanka will be able to host CHOGM 2013 regardless of any outcome and without any scrutiny, at the cost of the Commonwealth condoning serious human rights violations.

We believe that the moment to re-consider Sri Lanka’s suitability as a host for Commonwealth’s most emblematic meeting must be at Perth. The Heads must take into account the consistent intransigence of the government of Sri Lanka and the lack of investigations or progress on impunity within the country since the 2009 decision to postpone CHOGM.

Providing space for Sri Lanka to be the host of CHOGM 2013 will only serve as a declaration of the Commonwealth’s indifference to human rights concerns. It will also allow a government in serious controversy over its role in egregious human rights violations to preside over the organisation from 2013 to 2015 without the necessity of having to conduct any serious or credible investigations into the allegations it faces.

If it is wished that Sri Lanka should host a future CHOGM after 2013, we urge you to direct the Commonwealth Ministerial Action Group to monitor the performance of Sri Lanka against specific benchmarks. We believe that before Sri Lanka is considered as the host of a future CHOGM it must meet the following minimum benchmarks that require it to:

1. Ensure meaningful domestic implementation of the international human rights treaties to which the Government of Sri Lanka is party and bring all legislation in line with international human rights standards;
2. Treat all people within Sri Lanka with dignity and respect as equals while allowing them to live in an environment in which they can enjoy all fundamental rights guaranteed by the Constitution of Sri Lanka and international human rights law;
3. Restore Constitutional provisions that guarantee separation of powers and re-instate the independence of the three wings of State;
4. Restore the independence of key government institutions, such as the National Human Rights and Police Commissions;
5. Institute effective mechanisms to protect journalists, civil society groups and human rights defenders who work for the promotion and protection of human rights;
6. Support and cooperate with independent and credible domestic and international investigations into all allegations concerning violations of international humanitarian and human rights law in the country, especially relating to the conduct of the armed conflict which ended in 2009; and
7. Commit to collaborate with the Office of the UN Secretary General and initiate the implementation of all recommendations set out in the report of the UN Secretary General’s Panel of Experts.

Sincerely,

Yap Swee Seng, Executive Director, Asian Forum for Human Rights and Development (FORUM-ASIA)

Wong Kai Shing, Executive Director, Asian Legal Resource Centre

Dr. Paikiasothy Saravanamuttu, Executive Director, Centre for Policy Alternatives

Ingrid Srinath, Secretary General, CIVICUS World Alliance for Citizen Participation

Maja Daruwala, Director, Commonwealth Human Rights Initiative

Hassan Shahriar, President, Commonwealth Journalists Association

Hassan Shire Sheikh, Executive Director, East and Horn of Africa Human Rights Defenders Project

Phil Lynch, Executive Director, Human Rights Law Centre (Australia)

Brad Adams, Executive Director Asia Division, Human Rights Watch

Nick Grono, Deputy President and Chief Operating Officer, International Crisis Group

Souhayr Belhassen, President, International Federation for Human Rights

Chris Chapman, Head of Conflict Prevention, Minority Rights Group International

Ruki Fernando, Rights Now Collective for Democracy

Edward Mortimer CMG, Chair, Sri Lanka Campaign for Peace & Justice

On 7 April 2011, the Human Rights Law Centre made a submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade’s review of the Department of Foreign Affairs and Trade Annual Report 2009 – 2010.

The submission considers the Annual Report with regard to international human rights standards and Australia’s foreign policy obligations in this regard.

After first outlining the utility and importance of a human rights-based approach to foreign policy, the submission identifies specific areas in which Department of Foreign Affairs and Trade’s position in respect of human rights could be improved.  It also makes concrete recommendations for reform which will enhance DFAT’s capabilities to address human rights issues, namely by:

1. developing an overarching, comprehensive human rights policy;
2. developing and undertaking Human Rights Impact Assessments as a key aspect of doing business abroad, including particularly in the areas of aid, development, trade, investment, business, migration, defence, military cooperation, security and the environment;
3. where appropriate, negotiating for bilateral and multilateral agreements to include human rights clauses and safeguards;
4. ensuring that the promotion and protection of human rights are incorporated into the objectives and activities of all regional organisations and processes that impact on human rights and of which Australia is a part;
5. establishing a high-level Human Rights Advisory Committee, comprising experts from NGOs, academia and human rights bodies, to provide external advice on human rights in foreign policy and on options for addressing human rights problems;
6. utilising and promoting social media as a form of communication and diplomacy;
7. appointing a human rights ambassador; and
8. increasing the resourcing of the Human Rights & Indigenous Issues Section within DFAT to facilitate these recommendations.

For further information about the inquiry, click here.

The delegation set out its view that the realisation of human rights should be a primary goal and instrument of Australian foreign policy and made over 30 recommendations as to actions for Australia to take as a principled and effective human rights champion, including in the areas of:

• the UN human rights system;
• women’s rights;
• Indigenous peoples’ rights;
• a human rights-based approach to aid and development;
• Australia’s role in Asia and the Pacific; and
• Australia’s role in relation to other countries.

Many of the recommendations build on and complement recommendations made by the Human Rights Law Centre in the following policy briefs:

• Foreign Policy and Human Rights: Australia as a “Principled Advocate of Human Rights for All”
• Human Rights in the Asia-Pacific: Australia’s Role and Responsibilities
• Business and Human Rights: Setting the Agenda
• “Promoting Human Rights and Fundamental Freedoms for All”: Australia’s Engagement with the UN Human Rights Council

The NGO delegation will be advocating and following up on implementation of many of the recommendations in the coming months.

Australia’s aid and development programs would be significantly enhanced if the Australian Government adopted a human rights-based approach to aid and development assistance, claims a leading human rights NGO.

The Human Rights Law Resource Centre today made its submission to the Australian Government’s independent review of its aid effectiveness.

HRLRC Director of Policy, Rachel Ball, said the development and delivery of effective aid programs required the Australian Government  to examine ‘bigger picture’ issues.

 “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,” Ms Ball said.

To help address such issues, the HRLRC submission makes the case for a more holistic approach that ensures policies, programs and the delivery of services are fair and non-discriminatory, participatory and empowering and transparent and accountable.

“By ensuring that programs include input and involvement from the vulnerable groups that they are trying to assist, not only are we more likely to alleviate the more extreme cases of suffering, but experience shows that better governance will be achieved which obviously leads to increased effectiveness,” Ms Ball said.

The submission highlights the success of Spain, Sweden and the United Kingdom’s efforts to implement human rights-based approaches to aid delivery.

“The problems that aid programs are often trying to address are global problems. To address these problems effectively Australia needs to be doing so within a global framework. A focus on strong human rights standards offers this,” Ms Ball said.

Background

The Australian Government has established an independent panel to review the effectiveness and efficiency of Australia’s aid and development program.  This review has been established following the Government’s commitment to increase Australia’s official development assistance to 0.5 per cent of gross national income by 2015-16.  The review is due to be completed in April 2011. 

The Human Rights Law Resource Centre welcomes the review and has made a Submission to the Independent Review of Aid Effectiveness in relation to a particular aspect of the panel’s Terms of Reference, namely, ‘the program’s approach to efficiency and effectiveness and whether the current systems, policies and procedures maximise effectiveness’. 

The HRLRC submits that the effectiveness of the Australian aid and development programs would be enhanced through the adoption of a human rights-based approach to aid and development assistance.  A human rights-based approach to development assistance draws on international human rights standards and focuses on systemic inequalities and unjust power relations that exist within states and are one of the root causes of discrimination.  It requires aid and development programs:

• be delivered in a fair and non-discriminatory way,
• allow for the participation of key stakeholders;
• have regard to all the determinants of rights-holders’ wellbeing, such as the civil, political, economic, social and cultural determinants of wellbeing; and
• be transparent and accountable within that same human rights-based framework. 

A human rights-based approach has been successfully adopted by Spain and Sweden, and at least partially adopted by the United Kingdom and provide examples of how a human rights-based approach works in practice.  To date, AusAID has seen human rights as an incidental consequence of providing development assistance.

The brief is based on desktop research and provides preliminary or background information on human rights structures, initiatives and issues in the Pacific region.  National and regional non-government organisations will fully brief the Special Rapporteur on the substantive issues facing human rights defenders prior to or during her visit to Fiji.

The brief contains the following parts:

• An outline of regional initiatives in relation to the protection of human rights in the Pacific region.
• A table of the status of international human rights treaty signature, ratification and accession for Pacific Island nations as at 31 August 2010.
• A table providing the dates for consideration of Pacific Island nations under the Universal Periodic Review mechanism of the Human Rights Council.
• A table setting out the extent of constitutional protection of human rights in Pacific Island nations, with commentary from treaty monitoring bodies and from UPR reports on relevant gaps in human rights protection.  This table includes references to the situation of human rights defenders, women’s rights, freedom of association, rule of law and governance issues and independence of the judiciary that have been made by those bodies.
• A summary of reports made by regional and international NGOs on the situation of human rights defenders in the Pacific, or on issues that relate to those concerns.

The Framework commits Australia to help Pacific countries strengthen the rule of law and protect human rights.  It states that ‘[t]he performance of the law and justice system is critical to the preservation of fundamental human rights, promotion of the rule of law and access to justice, particularly for the poor and vulnerable.  Without development in this area, achievement of the MDGs will be beyond reach’

The Framework emphasizes the importance of building partnerships with Pacific government and non-government agencies and building local capacity.  It details specific commitments in areas including transnational crimes, gender equality and violence against women, public administration and access to justice. 

The Human Rights Law Resource Centre provided comments on a draft of the Framework which were subsequently incorporated in the final document.  The Centre’s comments discussed ways in which the protection and promotion of human rights contribute to positive security, governance and development outcomes and recommended that the human rights framework play a central role in Australia’s law and justice engagement with the Pacific.  

The Framework for Law and Justice in the Pacific is available at www.ag.gov.au/pacificframework.

In its letter, the Centre recalled the recent recommendation of the Joint Standing Committee on Foreign Affairs, Defence and Trade that AusAID ‘adopt a human rights-based approach to the planning and implementation of development projects’.  The Centre also drew attention to the call by the UN Special Rapporteur on Torture for ‘the international donor community to consider the protection of human rights as the highest priority’ in PNG. 

Having regard to these developments, the Centre outlined that the treaty review is a significant opportunity for Australia to enhance aid effectiveness, demonstrate leadership on human rights in the Asia-Pacific, and contribute to the realisation of human rights in PNG in practical and effective ways.  Further, the Centre called on the Australian Government to take advantage of this opportunity by explicitly committing to the promotion and protection of human rights as a primary goal and instrument of Australia’s development cooperation with PNG. 

The Committee identified that the ‘Asia-Pacific is a diverse and complex region with a mosaic of human rights challenges’ and found that there is a ‘clear need to enhance mechanisms to protect human rights and to monitor and redress human rights violations’.  The Committee further found that, while Australia has a ‘significant role to play’ in promoting and protecting human rights in the region, Australia must also be ‘sensitive and cooperative in its approach and action on human rights matters’. 

Consistent with evidence to the inquiry, the Committee stated that for Australia to propose possible models for an Asia-Pacific regional human rights mechanism would be ‘premature’ and that Australia should instead ‘take its lead from organisations already established in the region, seek to address issues in which Australia expertise or a shared interest, and infuse human rights standards and practices into relationships within the Asia-Pacific region’. 

Consistent with these observations and findings, the Committee recommended, among other things, that:

• the Australian Government should be ‘conscious of its human rights obligations in all of its regional relationships’, including in the areas of aid, trade and investment;
• AusAID should ‘adopt a human rights-based approach to guide the planning and implementation of development projects’;
• the Australian Government should continue and expand its bilateral human rights dialogues with states in the Asia-Pacific – including China and Vietnam – and seek to strengthen these dialogues through the inclusion of parliamentary delegates and by reporting their outcomes to parliament on an annual basis;
• Australia should adopt a ‘targeted approach’ to ‘improve the level of ratification of core human rights treaties in the Asia-Pacific, and to assist countries in meeting their obligations once they are parties to these important treaties’, including through education and the provision of financial and technical support;
• the Australian Government should support the ‘vital work’ being done by NGOs and civil society in the promotion and protection of human rights in the region, including by establishing a scholarship fund to enable human rights defenders to attend human rights courses and programs in Australia; and
• the Australian Government should appoint a Special Envoy for Asia-Pacific Regional Cooperation on Human Rights to engage in regional discussions and consultations on how Australia can best support human rights in the Asia-Pacific.  This Special Envoy should report to the Government within 12 months.

The Committee concluded that it was ‘mindful that Australia should not be prescriptive in what human rights approach or mechanism would best suit the region’, but reiterated that Australia is ‘well placed to foster an opportunity for discussion and progress on a cooperative approach to human rights challenges facing the Asia-Pacific region’. 

The Committee’s report cited the HRLRC’s submission to the inquiry, entitled Australia’s Role in Promoting Human Rights in the Asia-Pacific, over 85 times and adopted many of the HRLRC’s findings and recommendations.