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.

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

The report focuses on the standard of living and quality of health care and health services for Aboriginal and Torres Strait Islanders, people in prison and immigration detainees. 

Section II the report considers the international and national legal framework within which the right to health is considered in Australia, and discusses the recognition of international human rights under Australian law.  On this issue, the Special Rapporteur concludes that the Australian Government should take steps to comprehensively enshrine human rights, including the right to health, in Australian law.  He further recommends that such rights be recognized as enforceable and justiciable. 

Section III of the report considers the issue of Indigenous health, including as to health status, the underlying social determinants of health (including severe socio-economic disadvantage and social exclusion), and access to health care services and primary health care. 

Section IV of the report focuses on the right to health of detainees in Australia, including prisoners and immigration detainees, and notes that all persons deprived of liberty are entitled to the right to the highest attainable standard of health, to be treated with humanity and dignity, and to have equal access to health services as those in the community.  The Special Rapporteur observed inconsistencies and inequalities in treatment and and access to services across different facilities, and was particularly concerned with the disproportionate impact of incarceration on Indigenous populations, as well as persons with mental illness.  He also observed that Australia’s continuing policy of mandatory detention poses significant barriers to the realization of the right to health for asylum seekers and refugees.

Section V of the report sets out the Special Rapporteur’s conclusions and recommendations pertaining to each of the areas discussed above, including that Australia should:

• Ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment, and establish an independent national preventive mechanism to conduct regular inspections of all places of detention;
• Pass legislation restoring the Racial Discrimination Act vis-à-vis the Northern Territory as a matter of priority, and introduce constitutional protection of the rights of Indigenous peoples;
• Develop a national health policy which includes a detailed plan for the full realization of the right to health;
• Implement legislative or other guarantees to ensure that the opinions of national representative Indigenous bodies, such as the National Congress of Australia’s First Peoples, are taken into account;
• Give priority to education in human rights throughout the country, particularly in respect of education for health professionals;
• Address, as a matter of urgency, the qualitative and quantitative inadequacy of educational services for remote communities;
• Ensure that Indigenous communities have control over allocation of resources, by providing local governance monitoring structures;
• Allocate additional funding to health promotion programmes throughout the Northern Territory;
• Increase engagement with community health providers by prisons, which would improve continuity of care and facilitate reintegration into the community;
• Increase resource allocation for diagnosis, treatment and prevention of mental illnesses within prisons;
• Assess and invest in the primary health care sector throughout the prison system;
• Undertake research regarding indigenous incarceration issues as a matter of urgency, and ensure that new interventions concerning prevention of incarceration and treatment during incarceration are evidence-based and appropriately evaluated;
• Reconsider the policy of mandatory detention of irregular arrivals;
• Assess the viability of providing on-site interpreters in immigration detention facilities;
• Place detainees with a history of torture and trauma in community detention; and
• Reconsider the appropriateness of detention facilities continuing to operate on Christmas Island, and assess provision of mental health services to this population as a matter of priority.

The Special Rapporteur’s report is at www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.Add4.pdf. 

A Briefing Paper prepared by the HRLRC to assist the Special Rapporteur is available at www.hrlrc.org.au/content/topics/esc-rights/right-to-health-briefing-paper-on-australia-to-un-special-rapporteur-on-the-right-to-health-sept-2009/.  

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.

The Human Rights Law Resource Centre considers that all human rights are interdependent, mutually reinforcing and indivisible.  We consider that an Australian Human Rights Act should enshrine social and economic rights and that both international law and Australian constitutional law clearly establish that such rights are justiciable and enforceable. 

Consistent with this view, the Centre obtained a Memorandum of Advice from Peter Hanks QC, Debbie Mortimer SC, Associate Professor Kristen Walker and Graeme Hill on the justiciability of social and economic rights under a Commonwealth Human Rights Act. 

Contrary to the brief advice from the Solicitor-General, this advice clearly states that:

• there is no necessary constitutional objection to including economic and social rights in any federal Human Rights Act;
• economic and social rights are no more broadly expressed than civil and political rights, which are capable of being interpreted and applied in the exercise of federal judicial power;
• decisions about social and economic rights may have implications for the allocation of budgetary resources, however the same is true for all human rights; and
• it is an overstatement to say that ICESCR rights do not contain judicially manageable standards.

The opinion concludes that the real issue is whether economic and social rights can be appropriately expressed and the court’s role limited. So long as rights are framed so as to give them specific content, and the court’s role limited to a consideration of whether the government’s action was reasonable within the available resources (as under the South African constitution), social and economic rights are capable of being protected and promoted in Australian law.

In light of the the findings of the Consultation as to the importance of ESC rights, Australia’s international obligations as to the interdependent protection and promotion of all rights, and the attached advice as to the constitutional justiciability of ESC rights, it is imperative that an Australian Human Rights Act enshrine all civil, political, economic, social and cultural rights and that such rights be justiciable and enforceable. 

According to the Australian Bureau of Statistics, there are over 105,000 people who experience homelessness on any given night.  The Committee’s report states that this is ‘despite over a decade of relative national prosperity’ and cites the conclusions of then UN Special Rapporteur on the Right to Adequate Housing, Miloon Kothari, following his 2006 country mission to Australia that:

Australia has failed to implement its international legal obligation to progressively realize the human right to adequate housing to the maximum of its available resources, particularly in view of its possibilities as a rich and prosperous country.

In response, the Committee recommends that Australia enact comprehensive homelessness legislation which contains commitments to reducing homelessness ‘by allowing access to adequate and sustainable housing’ and to achieving ‘social inclusion for people experiencing homelessness or at increased risk of homelessness’.  

The Committee notes that ‘the majority of submissions to this inquiry strongly support new homelessness legislation which incorporates an enforceable right to adequate housing’ and also highlights the ‘options put forward by the National Human Rights Consultation Committee to promote and better protect social, economic and cultural rights, including the right to adequate housing’.  

In a unanimous report, and consistent with the HRLRC submission to the inquiry, the Committee recommends that any ‘new homelessness legislation specify the right of all Australians to adequate housing’.  Citing article 11 of the ICESCR, the Committee considers that ‘such a provision should:

• include appropriate reference to Australia’s international human rights obligations;
• include a clear definition of adequate housing; and
• explicitly recognise the right to adequate housing will be progressively realised.’

Also consistently with the HRLRC submission, the Committee states that ‘effective and independent monitoring and reporting on progress toward the realisation of the right to adequate housing is essential’ and that such ‘monitoring and reporting should include disaggregated information for those populations identified as vulnerable or marginal’.  

The HRLRC submission (together with many other submissions) recognised that homelessness is a human rights issue and is both a cause and a consequence of poverty and other human rights violations.  In response, the Committee states that it ‘fully appreciates the associations between homelessness and the increased risks of experiencing discrimination and violations of rights’.  Further, it recommends that ‘the Australian Government, in cooperation with state and territory governments, conduct an audit of laws and polices that impact disproportionately on people experiencing homelessness’ and that ‘laws and policies that do not conform to anti-discrimination and human rights obligations should be amended accordingly’.  Recognising that such an audit would be an intensive task, the Committee recommends that priority be given to review and amendment of ‘anti-discrimination laws, residential tenancy laws, and public space laws’. 

The Government has not yet announced the date for its response to the report.  

The Committee report is at http://www.aph.gov.au/house/committee/fchy/homelessness/report.htm.  

The HRLRC submission to the inquiry is at http://www.hrlrc.org.au/content/topics/esc-rights/housing-rights-submission-to-australian-parliament-on-homelessness-legislation-aug-2009/.  

Section 4(1)(c) provides that, for the purposes of the Charter, a public authority includes ‘an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise)’. 

The Centre submitted that while ‘there cannot be a single litmus test of what is a function of a public nature’ (see YL v Birmingham City Council [2008] 1 AC 95 at [65] per Baroness Hale), a number of principles should guide the Tribunal’s consideration of s 4(1)(c):

• First, consistent with the underlying purpose of the Charter, the section should be given a broad and generous interpretation.
• Second, the Tribunal should focus on the function being performed, rather than the nature of the organisation exercising the function. The Centre noted that a function will be either public in nature or it will not; the nature of the function does not change depending on the nature of who is performing it.
• Third, the relationship between the organisation and the state may be relevant, but only to the extent that it indicates whether the function is being exercised on behalf of the State.
• Fourth, what constitutes a function of a public nature is a question of substance, not form or technical legal distinction.

Accordingly, the Centre submitted that the underlying rationale of s 4(1)(c) is that an entity should be a public authority, and therefore bound to act compatibly with human rights under s 38 of the Charter, where:

1. it is performing a function for which the public, in the form of the State or a public authority has, in a broad sense, a responsibility in the public interest to see performed; and
2. it is doing so pursuant to a loosely connected arrangement whereby it is acting as the agent, delegate or representative of, or merely carrying out the purposes of, the State or a public authority.

See: Submission of Human Rights Law Resource Centre dated 5 November 2008

In a landmark decision on 9 October 2009, Bell J, President of VCAT, declared that Metro West is a public authority bound by the Charter (see Metro West v Sudi (Residential Tenancies) [2009] VCAT 2025).  This decision has significant implications for the operation of the Charter in respect of private entities – both commercial and non-profit – providing services of a public nature. 

Consistent with the submissions of the Centre, Bell J held that the definition of ‘function of a public nature’ should be interpreted and applied widely and generously with the Charter’s purposes in mind, including the protection of vulnerable individuals and groups.  He further held that the focus of the inquiry should be on the function being performed, rather than the nature of the organisation exercising that function or the relationship between the organisation and the state per se. 

Applying these principles in the present case, Bell J found that the provision of social housing to people at risk of homelessness is an important function which government exercises on behalf of the community in the public interest:

Disadvantaged people in need of social housing and at risk of homelessness are among the most vulnerable in the community.  Their human rights are imperilled by their circumstances.

His Honour concluded that the function of providing social housing, which includes the management of transitional housing tenancies, is a function of a public nature.  Bell J also considered the terms of the service agreement between Metro West and the state, and the governance structure of Metro West, concluding that Metro West was responsible under the agreement to the government for the provision of social housing to people at risk of homelessness, and was publicly funded to do so.

The Centre was provided with outstanding pro bono assistance in this case by Freehills (Jennifer Riley and Malcolm Cooke), together with Ron Merkel QC and Alistair Pound of Counsel.  The tenants were represented on a pro bono basis by the PILCH Homeless Persons’ Legal Clinic and the Tenants’ Union of Victoria. 

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.  

On 1 July 2009, the Centre made a Submission strongly urging the Australian Government to be part of the first group of States to ratify the Optional Protocol to the ICESCR and bring it into force. 

The submission sets out:

• the background to content and operation of the Optional Protocol;
• why ratification of the Optional Protocol is in the national interest; and
• responses to arguments against ratification.

On 24 July 2009, the Centre made a further Submission on the Justiciability of Economic and Social Rights under ICESCR to aid the government in its understanding of the likely operation and impact of the Optional Protocol.