“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.

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.

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 27 August 2010, the UN Committee on the Elimination of Racial Discrimination released its Concluding Observations following a review of Australia’s compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

The Committee welcomed a number of recent positive developments in Australia, including the National Apology to the Stolen Generations, the endorsement of the UN Declaration on the Rights of Indigenous Peoples, the commitment to “Close the Gap” in Indigenous health inequality, and Australia’s closer engagement with a number of UN human rights instruments and mechanisms.

The Committee raised serious concerns about a range of Australian laws, policies and practices, including the Northern Territory Intervention, the suspension of the Racial Discrimination Act, the treatment of refugees and asylum seekers, and the impact of Australia’s counter-terror laws.

The CERD Committee also expressed its regret that many recommendations from previous reports have not been properly implemented in Australia, including in relation to deaths in custody, the socio-economic disadvantage of Aboriginal and Torres Strait Islander peoples, gross over-representation of Aboriginal and Torres Strait Islander peoples in the prison population, Aboriginal land rights and the mandatory detention of asylum seekers.

The Committee made over 20 recommendations for concrete action to address racial discrimination, disadvantage and inequality in Australia, including in relation to Australia’s legal framework, Indigenous peoples, refugees and asylum seekers, and multiculturalism and racial harmony.

Australia’s Legal Framework

The Committe recommends that the Government:

• comprehensively implement the International Convention on the Elimination of All Forms of Racial Discrimination in Australian law;
• strengthen federal anti-discrimination laws to ensure comprehensive and entrenched protection against racial discrimination;
• consider expanding the powers, functions and financing of the Australian Human Rights Commission, including the appointment of a  full-time Race Discrimination Commissioner;
• develop a legal framework to prevent acts of Australian corporations which negatively impact on the rights of Indigenous peoples domestically and overseas and to regulate the extra-territorial activities of Australian corporations abroad;
• ensure that acts of racial hatred are criminalized and prosecuted; and
• consider ratifying those international human rights treaties which it has not yet ratified,such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), the Optional Protocol to the Convention Against Torture, and ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries.

Aboriginal and Torres Strait Islander Peoples

The Committe recommends that the Government:

• amend the Australian Constitution to include the recognition of Aboriginal and Torres Strait Islanders as First Nations Peoples;
• consider the negotiation of a treaty agreement to build a constructive and sustained relationship with Indigenous peoples;
• reset the relationship with Aboriginal people based on genuine consultation, engagement and partnership and that Government actions affecting the Aboriginal communities respect Australia’s human rights obligations and conform with the Racial Discrimination Act;
• reform and remedy the discriminatory impact that the Northern Territory Emergency Response has had on affected communities, including restrictions on Aboriginal rights to land, property, social security, adequate standards of living, cultural development and work;
• amend the Native Title Act 1993 to address the persisting high standards of proof required for recognition of the relationship between Indigenous peoples and their traditional lands, and the fact that in spite of large investmenst of time and resources by Indigenous peoples, many are unable to obtain recognition of their relationship to land;
• increase access to justice for Indigenous peoples, including through increased funding for Aboriginal legal aid and interpretative services;
• in light of the grossly disproportionate incarceration of Indigenous people, dedicate sufficient resources to address the social and economic factors underpinning Indigenous contact with the criminal justice system, including by adopting a justice reinvestment strategy, continuing and increasing the use of Indigenous courts and conciliation mechanisms, diversionary and prevention programs and restorative justice strategies;
• ensure the provision of adequate health care to prisoners;
• adopt all necessary measures to preserve native languages and develop and carry out programmes to revitalize Indigenous languages and bilingual and intercultural education for Indigenous peoples respecting cultural identity and history; and
• implement appropriate compensation payment schemes for the Stolen Generations and in relation to Indigenous Stolen Wages.

Refugees and Asylum Seekers

The Committe recommends that the Government:

• review the regime of mandatory detention of asylum seekers with a view to finding an alternative to detention, ensuring that the detention of asylum seekers is always a measure of last resort and is limited by statute to the shortest time reasonably necessary, and that all forms of arbitrary detention be avoided;
• expedite the removal of the suspension on processing visa applications from asylum seekers from Afghanistan;
• develop appropriate reception arrangements, in particular for children;
• amend domestic law, in accordance with article 5 (b) of the Convention, to ensure that the principle of non-refoulement is respected when proceeding with return of asylum-seekers to countries; and
• continue its cooperation with UNHCR in regard to the above.   

Multiculturalism and Racial Equality and Harmony

The Committe recommends that the Government:

• develop and implement an updated comprehensive multicultural policy and strengthen the race and cultural dimensions of its Social Inclusion Agenda;
• ensure that counter-terrorism laws and practices do not include racial profiling, which may contribute to increased stigmatization of certain groups, and do not discriminate in purpose or effect on grounds of race, colour, descent, or national or ethnic origin;
• in light of recent attacks on international students, particularly Indian students, intensify efforts to combat racially motivated violence, including by requiring law enforcement authorities to collect data on the nationality and ethnicity of victims of such crimes and ensuring that judges, prosecutors and the police apply, in practice, existing legal provisions which consider the motive of ethnic, racial or religious hatred or enmity an aggravating circumstance;
• include human rights education in the national curriculum; and
• ensure that an anti-racism strategy be established under the new Human Rights Framework and that an education program for all Australians, with particular reference to combating discrimination, prejudice and racism.

The Committee’s findings and recommendations are available here.

An HRLRC media release is here.

The major NGO Report to the Committee, together with 9 Fact Sheets on key issues in respect of Australia’s compliance with CERD, is here.

An NGO coalition, comprising the Human Rights Law Resource Centre, the National Association of Community Legal Centres and the Foundation for Aboriginal and Islander Research Action, briefed the committee in Geneva, presented a major NGO Report, and provided the following Fact Sheets on Australia’s compliance with the Convention on the Elimination of All Forms of Racial Discrimination:

• Fact Sheet 1: Domestic Implementation of the Convention on the Elimination of All Forms of Racial Discrimination
• Fact Sheet 2: The Northern Territory Intervention
• Fact Sheet 3: Native Title
• Fact Sheet 4: Civil and Political Rights of Aboriginal and Torres Strait Islander Peoples
• Fact Sheet 5: Economic and Social Rights of Aboriginal and Torres Strait Islander Peoples
• Fact Sheet 6: Access to Remedies for Racial Discrimination
• Fact Sheet 7: Human Rights of Refugees, Asylum-Seekers and Non-Citizens
• Fact Sheet 8: Human Rights of Migrant Communities
• Fact Sheet 9: Impact of Counter-Terrorism Laws

On the international stage, Australia has a proud bipartisan history in the development of human rights laws and institutions.  At home, the recent National Human Rights Consultation demonstrated that human rights matter deeply to Australians.  Human rights principles resonate with Australian democratic values, including the rule of law and our sense of a fair go. 

The Consultation also demonstrated, however, that our framework of laws and institutions does not provide comprehensive protection of rights, particularly for vulnerable or disadvantaged groups.  The Consultation disclosed a strong majority view that ‘we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out’.

On 21 July 2010, the Human Rights Law Resource Centre released Human Rights 2010 – 10 Policies for a Fairer Australia.   Human Rights 2010 briefly sets out ten policies to which the next Federal Government should commit for a fairer Australia.  Together, the policies would promote human dignity, address disadvantage, enhance good government, and strengthen accountability. 

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. 

In July 2010, the Human Rights Law Resource Centre, together with the National Association of Community Legal Centres, submitted a major NGO submission on Australia to the UN Committee on the Elimination of Racial Discrimination. 

The report, which was endorsed by a coalition of over 100 NGOs, details that racial and religious minority groups in Australia continue to experience racism in their daily lives and to suffer unequal human rights treatment and outcomes.  There remain serious concerns about the racially discriminatory character and impact of a range of Australian laws, policies and practices.  Many of the advances in human rights protection since the election of the Labor Government in 2007 have been symbolic in nature; structural changes necessary to turn commitments into practice still need to be made.

The NGO report documents areas in which Australia is falling short of fulfilling its obligations under CERD and focuses on areas that have been the subject of extensive NGO activity and research in Australia.

Subjects detailed in the report include:

• the lack of sufficient legal protection from racial discrimination in Australian law, policy and practice, including the ineffectiveness and, at times, unavailability of remedies for violations;
• the ongoing discriminatory outcomes experienced by Aboriginal and Torres Strait Islander people in the enjoyment of many civil, political, economic, social and cultural rights;
• the impact of the Northern Territory Intervention on Aboriginal and Torres Strait Islander peoples;
• the adverse impact of laws, policies and practices on asylum seekers, refugees and other non-citizens;
• the various forms of discrimination faced by migrant communities in Australia;
• the impact of Australia’s counter-terrorism laws on Somali, Kurd and Muslim communities in Australia; and
• the need for better implementation of Concluding Observations of human rights treaty monitoring bodies and a worrying trend in Australia’s response to views of those bodies.

The report contains concrete recommendations for Australian authorities, which would bring Australia more fully into compliance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination; an Australia in which all persons can live with freedom, respect, equality and dignity.

On 6 July 2010, the Human Rights Law Resource Centre made a Follow-Up Submission on Implementation of the Human Rights Committee’s Concluding Observations on Australia.  The submission updates the Committee as to:

• the four Concluding Observations about which the Committee requested relevant information on implementation from Australia within one year (namely, counter-terrorism law and policy, the Northern Territory Emergency Response, violence against women and mandatory immigration detention); and
• the outcomes of the National Human Rights Consultation.

Further background information on each of these issues is contained in the comprehensive NGO Report, Addendum and fact sheets provided to the Committee in 2009, available at http://www.hrlrc.org.au/content/topics/civil-and-political-rights/un-human-rights-committee-review-of-australia-march-2009/.