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.

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.

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.

The Centre is concerned about the impact of the proposed laws on women and children experiencing family violence and considers that they would constitute unjustifiable limitations on human rights contained in the Charter of Human Rights and Responsibilities Act 2006. Child abuse is a critical issue that must be addressed as a matter of urgency and priority. However, measures to address child abuse should be appropriately adapted to achieve this aim and should not punish women who are themselves victims of violence.

The submission is available here.

A coalition of leading human rights and refugee advocacy organisations – comprising the HRLC, Human Rights Watch, the Refugee Council of Australia, the Asylum Seeker Resource Centre, the Refugee and Immigration Legal Centre and the Migrant and Refugee Rights Project at UNSW – is gravely concerned that Australia’s responses to questions from the international community did not accurately reflect Australian law, policy or practice on refugee and asylum seeker issues.

Accordingly, on 4 May 2011, the coalition sent a letter to the UN Ambassadors of each of the countries which raised concerns about Australia’s migration policies.

The letter provides accurate and up-to date information regarding:

• the fact that Australian law provides for mandatory, indefinite detention without judicial oversight;
• the fact that detention is not only used as a last resort or for the shortest practicable time;
• children in detention; and
• conditions of immigration detention.

The missions to which the letter was sent include those of Sweden, Norway, Slovenia, Pakistan, Guatemala, Ghana, the Philippines, Brazil, Switzerland, East Timor, Morocco and the United States.

The coalition is urging those countries to raise these concerns with Australia both, both bilaterally and in the Human Rights Council itself.

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/.

The purpose of the Bill is to establish an independent statutory office of Commonwealth Commissioner for Children and Young People, to advocate at a national level for the needs, rights and views of people below the age of eighteen.

The HRLRC has made a submission to the Senate Committee supporting the establishment of a Children’s Commissioner, but recommending that:

• the Children’s Commissioner should sit within the Australian Human Rights Commission, rather than being established as a wholly independent and ‘stand alone’ statutory office;
• the Children’s Commissioner should not be responsible for preparation of Australia’s reports on its compliance with the CRC, but should instead contribute to the Australian Human Rights Commission’s reports under the CRC, together with to relevant UN human rights bodies and mechanisms; and
• the role of the Children’s Commissioner could be enhanced by:
  • providing more explicit functions relating to monitoring Australia’s compliance with its international obligations;
  • expanding and clarifying the Children’s Commissioner’s powers to receive and determine complaints and to make inquiries and publish reports; and
  • providing for the demarcation of the roles of the Children’s Commissioner vis-à-vis the commissioner’s in the states and territories and outline how they are to interact.

The Bill, explanatory memorandum and second reading speech are on the Senate Committee’s website at www.aph.gov.au/senate_legal.

On 9 November 2010, the Australian Government invited stakeholders for input on Australia’s approach to the draft optional protocol.

On 11 November 2010, the Human Rights Law Resource Centre made an Initial Submission to the Australian Government on the Elaboration and Adoption of a Third Optional Protocol to the CRC.

The HRLRC’s submission briefly sets out:

• the operation of the draft optional protocol;
• the need for the optional protocol;
• the benefits of the optional protocol; and
• Australia’s role in the elaboration and adoption of the optional protocol.

The Human Rights Law Resource Centre has intervened to provide the Coroner with assistance on the relevance of the Victorian Charter to the proceeding.

The HRLRC’s submissions in the proceeding to date include:

• Submissions on Scope of the Inquest
• Submissions on the Investigation of Deaths Associated with Police Contact

The HRLRC’s focus will be on the independence of the investigation, which is a requirement of the right to life, as well as the adequacy of systems in place to protect life, such as policies, procedures and training on use of force and critical incident management.  Particular emphasis will be placed on the need for police to be trained and ready to deal with people in the community who are vulnerable, such as children and people in mental health crisis. 

Prior to the hearing, the Coroner requested that the HRLRC provide submissions on the what models for investigating fatal police shootings is available in Victoria and the recommendations that she should make in relation to independent investigations.  Those submissions have been provided to the Coroner, and are available above.

In short, the HRLRC has asked the Coroner to recommend the establishment of a body that is heirarchically, practically and institutionally independent of the Victoria Police and that is empowered to conduct primary investigations into deaths in custody or associated with police contact.  Such a body should have carriage of the investigation at the earliest practical point, within hours of an incident, and should be given the responsibilities of primary investigators, such as interviewing witnesses and gathering evidence.  In terms of the method of investigation, police should be treated no differently from other members of the public involved in criminal investigations, and statements from members involved in the shooting should be taken within 24 hours and must be video recorded.

The coronial hearing is listed to run for five weeks.

The HRLRC is being assisted on a pro bono basis in this matter by Allens Arthur Robinson, together with Brian Walters SC and Sam Ure of Counsel.

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.