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.

The submission to the Commonwealth Attorney-General’s Department considers each of 145 recommendations made to Australia by the international community during Australia’s Universal Periodic Review before the UN Human Rights Council.

The recommendations ranged from enacting a comprehensive national Human Rights Act, to recognising same-sex marriage, to enshrining Indigenous and racial equality rights in the Constitution, to abolishing mandatory immigration detention.

The Centre’s submission considers each of these recommendations in terms of Australia’s concrete obligations under international human rights law and identifies whether, on that basis, they must be accepted, should be accepted, or should be rejected.

According to a legal analysis of the recommendations conducted by the Human Rights Law Centre, the Australian Government must immediately implement at least 55 of the UPR recommendations in order for Australia to avoid continuing breaches of its legal obligations under international law.  The HRLRC’s media release is available in [PDF] and [word].

Australian NGO Coalition

The Centre has also been involved in the coordination of a major NGO Coalition submission to the Attorney-General’s Department regarding prioritisation and practical implementation of the 145 recommendations.

The Australian Government has committed to fully consider the recommendations “in the coming months” and to formally respond to them at the UN Human Rights Council in Geneva in June. Australia’s response presents both a test and an opportunity for the protection of human rights at home and the enhancement of our international standing and reputation abroad.

For further information about Australia’s Universal Periodic Review, see http://www.hrlrc.org.au/content/universal-periodic-review-ngo-delegation-updates/.

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.

A coalition of 68 NGOs - coordinated by the Human Rights Law Resource Centre, Kingsford Legal Centre and the National Association of Community Legal Centres - has submitted a 5 page Report to the UN Human Rights Council on Australia, setting out key human rights issues and concrete recommendations, including in relation to:

• the legal recognition and protection of human rights
• Australia’s cooperation with international human rights mechanisms
• equality and non-discrimination
• women’s rights
• children’s rights
• the rights of people with disability
• GLBTI rights
• Indigenous rights, including in respect of the Northern Territory Intervention, the criminal justice system, native title, the Stolen Generations, Stolen Wages, and access to adequate health care, housing and education
• the rights of migrants, refugees and asylum seekers
• prisoners’ rights and conditions of detention
• police use of force and oversight and complaint mechanisms
• the administration of justice
• homelessness
• mental health care
• human rights and counter-terrorism
• business and human rights
• international assistance and Australian foreign policy

The report was submitted to the UN Human Rights Council in Geneva on 12 July 2010.

Further information on Australia’s review under the UPR process is available at www.hrlrc.org.au/content/topics/international-human-rights-mechanisms/universal-periodic-review-of-australia-in-february-2011/.

The submisssion of the Australian Human Rights Commission for the UPR is at http://www.humanrights.gov.au/upr/index.html.

Amnesty International and the Aboriginal and Torres Strait Islander Legal Services of Australia have also made NGO submissions on Australia for the UPR.

The Australian Government report for the UPR is at www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_InternationalHumanRights_UniversalPeriodicReview. 

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. 

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.

(a)  the right to an adequate standard of living – including adequate food, clothing and housing;

(b)  the right to the enjoyment of the highest attainable standard of physical and mental health; and

(c)  the right to education.

The National Human Rights Consultation, the biggest federal consultation on any issue in Australia’s history, found that these three rights matter most to Australians, because they are the rights at greatest risk, especially for vulnerable groups in the community.   The protection and promotion of ESC rights will require the ACT Government to take steps to the maximum of its available resources, with a view to progressively realising ESC rights. A range of remedies, including judicial remedies, should be available for the violation of ESC rights.

The review comes at a time when indicators show a decline in women’s workplace equality.    Currently, only 8.3% of Board Directorships are held by women and the pay gap between male and female full-time earners has increased to 17.2% cent. 

The Centre’s submission to the review, A Human Rights Approach to Equality for Women in the Workplace, argues that the EOWW Act would be a more effective and powerful instrument if it were to reflected international human rights standards.         

A human rights approach to equality for women in the workplace would require that legislation, regulation, monitoring and reporting systems be developed with a focus on positive measures to achieve substantive equality.  The Centre made 23 recommendations, including that:

• employers should be required report on ‘priority issues’ (such as training opportunities, remuneration and parental leave) and ensure that issues identified are addressed within specified timeframes;
• the role of the EOWA should be extended to allow it to instigate investigations of non-compliance with workplace equality programs;
• accountability mechanisms should be implemented; and
• a quota system for female representation on government-controlled boards should be introduced. 

The Centre would like to thank Clayton Utz for their substantial assistance in the research and drafting of the submission. 

The Briefing Paper considers a range of issues regarding realisation of the right to health in Australia, including:

• The Legal Protection of the Right to Health in Australia
• Recent Reviews of Australia by UN Treaty Monitoring Bodies
• Public Health
• Indigenous Health
• Mental Health Services
• Asylum Seekers
• Homeless People
• Prisoners
• Women’s Health
• Climate Change
• Children’s Health

Homelessness is a human rights issue and is both a cause and a consequence of poverty and other human rights violations.  Therefore, the Centre submitted that the Australian Government’s response to homelessness should adopt a human rights-based approach in order to address the complex human rights issues that homelessness raises.  In particular, any homelessness legislation should guarantee the right to adequate housing in Australia.

The Centre submitted that homelessness legislation should include the following features:

• the guarantee of a justiciable right to adequate housing;
• a requirement for the Australian Government to take reasonable legislative and other measures to progressively realise the right to adequate housing, as defined in international law;
• the provision of priority to vulnerable groups through an immediately enforceable right of access to emergency accommodation.  Within a 10 year period, this right should be progressively expanded to apply to all persons in need;
• adequate protection of persons from forced evictions, including providing for necessary procedural protection and effective remedies;
• a requirement for meaningful participation by persons experiencing homelessness during policy development and in the delivery of homelessness services;
• a requirement for the Australian Government to adopt a comprehensive national housing strategy;
• clear provision for the right to adequate housing to be protected and provided on a non-discriminatory basis, ensuring equal access to housing;
• the establishment of an independent Housing Commissioner appointed to investigate and conciliate complaints relating to the right to adequate housing, and to investigate systemic issue;
• provision for a range of remedies for breaches of the right to adequate housing, including judicially enforceable remedies; and
• appropriate structural, process and outcome indicators to monitor the progressive realisation of the right to adequate housing, in particular the enjoyment of the right by vulnerable groups.

The Centre was provided with substantial research, drafting and editorial assistance in the preparation of the submission by the Mallesons Human Rights Law Group.