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 role and functions of the Race Discrimination Commissioner and the powers of the Australian Human Rights Commission;
• developments related to the Northern Territory Emergency Response; and
• racially motivated violence, particularly against international students.

The HRLC has provided an update to the Australian Government and to the Committee on Australia’s response to the Concluding Observations. 

Australia’s delegation delivered its formal response to 145 recommendations made as part of the UN’s Universal Periodic Review process, which reviews the human rights records of all 192 United Nations Member States.

The Human Rights Law Centre’s Ben Schokman said Australia faced close scrutiny when it explained why it has rejected key recommendations from the international community to review its policies relating to the treatment of asylum seekers, the disadvantage and discrimination experienced by Aboriginal and Torres Strait Islander peoples, and the lack of a Human Rights Act or Charter.

“A number of states, including our closest neighbour East Timor, took the floor to express concern about Australia’s refusal to accept recommendations about the mandatory and prolonged detention of asylum seekers, including children,” Mr Schokman said.

Although critical about the recommendations rejected by Australia, in its own statement to the Human Rights Council, the Human Rights Law Centre also said that there are a number of welcome commitments from the Australian Government, including a commitment to “enhance” anti-discrimination laws and to consider increasing aid and development assistance to the internationally accepted target of 0.7% of GNI.

“To its credit, the government has accepted, at least in part, more than 90 percent of the recommendations made during the review. However, it is regrettable that some of the key issues that topped the international community’s list of concerns were rejected,” Mr Schokman said.

The Australian Government has said it will include the UPR recommendations that it accepts into its National Human Rights Action Plan, which is currently being developed, and will also deliver an “interim” report on implementation of the recommendations to the UN Human Rights Council in two years.

“There are a lot of positives to build on, but the real test will be whether Australia’s positive engagement with the UPR process translates into action on the ground. If the Government takes its human rights obligations seriously, it needs to set a concrete implementation plan with clear responsibilities, timeframes and targets,” Mr Schokman said.

The Human Rights Law Centre believes the National Human Rights Action Plan should be used to advance a number of important human rights initiatives such as: ensuring Australian jurisdictions have independent investigations of police-related deaths; expanding and enhancing federal equality laws; reducing violence against women; and ensuring proper and meaningful empowerment of Aboriginal and Torres Strait Islander peoples.

The Attorney-General Robert McClelland said the UPR was a good opportunity to “showcase” Australia’s strong human rights record. Mr Schokman said a true showcase would involve committing to tangible human rights improvements on the ground through practical legal reforms, including the introduction of a national Human Rights Act or Charter.

“We are a stable, democratic and highly developed state with a government that espouses a commitment to human rights leadership. Yet we are the only modern democracy without a Human Rights Act or Charter,” Mr Schokman said.

The HRLC has prepared a list of Australia’s Response to All UPR Recommendations and a Summary of the Key UPR Recommendations that were rejected or only partially accepted by Australia which can be found online here.

Further background information on Australia’s Universal Periodic Review appearance, including the Australian Government’s report, NGO materials and media coverage, is also available online.

The Australian Human Rights Commission’s response and statement on the UPR of Australia is here.

Oral statements on the UPR of Australia from other NGOs, including Human Rights Watch, Amnesty International, Save the Children and the National Aboriginal and Torres Strait Islander Legal Services, will be posted here (Login: hrc extranet; Password: 1session).

On 8 June 2011, Australia provided its formal response to 145 recommendations made through the UPR.  In total, the Government accepted approximately 90 percent of the recommendations in whole or in part.

These pages contain the following information:

• Universal Periodic Review Materials, including NGO materials and reports by the Australian Government, the Australian Human Rights Commission and the Australian NGO Coalition
• Updates from the NGO Coalition, including coverage of Australia’s UPR appearance and updates from the NGO delegation that travelled to Geneva in January and February 2011
• Outcomes of Australia’s UPR Appearance in January 2011, including the UN’s Draft Report on Australia
• Follow Up and Implementation, including opportunities for NGO involvement and collaboration between the adoption of the Draft Report and the delivery of Australia’s Formal Response
• Australia’s Formal Response to Recommendations of the UPR in June 2011, including statements from the Australian Ambassador and NGOs to the UN Human Rights Council
• Media Coverage and Press Releases about Australia’s UPR

The purpose of this List is to outline those issues which the Committee would like Australia to address and respond to in its next periodic report to the Committee, due in 2012. 

The issues on which the Committee specifically seeks information and responses from Australia include:

• information regarding the legal entrenchment of human rights in Australia, including through a Human Rights Act and constitutional recognition of Indigenous people;
• the human rights compatibility and impacts of counter-terrorism legislation, including in relation to the powers of ASIO and the AFP;
• mechanisms for monitoring and oversight of places of detention, including prisons;
• the right to health and access to adequate health care for detainees, including prisoners and persons detained in immigration facilities;
• trafficking of women and children;
• violence against women;
• the operation and impact of laws that criminalise homelessness and poverty;
• complementary protection and the prohibition against refoulement;
• the operation and impact of Australia’s refugee and asylum seeker policies, including in relation to mandatory detention, offshore processing, and the detention of families and children;
• the over-representation of Indigenous people and people with mental illness in the criminal justice and prison systems;
• Australia’s extradition law, policy and practice; and
• police use of force, the investigation of police-related deaths and police monitoring and accountability mechanisms. 

The List of Issues Prior to Reporting is available at www2.ohchr.org/english/bodies/cat/docs/followup/AdvanceVersion/Australia_AV_en.pdf. 

The Centre’s submission to the Committee, which significantly informed the Committee’s List of Issues, is at www.hrlrc.org.au/content/topics/counter-terrorism/torture-and-ill-treatment-submission-to-un-committee-against-torture-on-australia-24-august-2010/

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

The Committee is likely to develop a List of Issues for Australia Prior to Reporting at its next session in November 2010. 

In the Centre’s view, the Committee should seek for Australia to detail the human rights compatibility of domestic law, policy and practice in the following areas:

• migration law, policy and practice, particularly in relation to refugees and asylum seekers;
• prisoners’ rights and conditions of detention;
• policing, police use of force and police-related deaths;
• counter-terrorism law, policy and practice;
• violence against women;
• homelessness;
• aspects of involuntary treatment of people with mental illness or disability;
• the lack of domestic prosecution of alleged war crimes and crimes against humanity; and
• gaps in Australian law, policy and practice with respect to exposing persons to the death penalty or torture or ill-treatment abroad, whether through extradition, the provision of mutual assistance in criminal matters, or the provision of police to police agency assistance. 

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.