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/.

The HRLRC has prepared a comprehensive submission, Towards a Tasmanian Charter of Human Rights, which recommends that a Tasmanian Charter have the following key features:

• The Charter should promote a dialogue about human rights between parliament, the executive, the courts and the community.  (The Proposed Model is a dialogue model.)
• The Charter should only recognise and protect the human rights of human beings.  (The Proposed Model only protects the rights of human beings.)
• The Charter should enshrine all civil, political, economic, social and cultural rights recognised by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.  (The Proposed Model does not adequately enshrine economic, social and cultural rights.)
• The Charter should balance rights, responsibilities and other interests.  It should recognise that certain rights are absolute, such as the right to protection from torture and cruel, inhuman or degrading treatment.  All other human rights should be subject to such reasonable limits as can be demonstrably justified in a free and democratic society.  (The Proposed Model provides appropriately for limitations of human rights.)
• The Charter should establish robust pre-legislative human rights scrutiny mechanisms.  New bills introduced into parliament should include a statement as to their ‘human rights compliance’ and a Joint Committee on Human Rights should review the human rights compatibility of all bills.  (The Proposed Model includes Statements of Compatibility but does not establish a Joint Parliamentary Committee.)
• The Charter should bind ‘Tasmanian public authorities’, including Ministers, bodies created by Tasmanian laws and undertaking public functions, and private entities that perform public functions on behalf of Tasmanian public authorities.  (The Proposed Model binds bodies ‘funded or controlled’ by government, but it should bind all bodies who ‘exercise functions of a public nature’ on behalf of the government.)
• The Charter should require that public authorities act compatibly with rights and give proper consideration to human rights in decision making.  (The Proposed Model requires public authorities to act compatibly, but only provides a limited requirement for the proper consideration of human rights.)
• The Charter should require courts to interpret all Tasmanian law compatibly with human rights, but only so far as is possible consistent with statutory purpose.  The Act should not empower courts to invalidate legislation.  (The Proposed Model does both these things.)
• Where legislation cannot be given a human rights-consistent interpretation, the Supreme Court of Tasmania should have the exclusive power to make a Declaration of Incompatibility.  Such a declaration would not affect the validity of the legislation but would require that parliament reconsider that legislation within a specified period.  The decision as to whether to amend, repeal or leave the legislation untouched would be entirely a matter for parliament.  (The Proposed Model provides for this dialogue between the courts and parliament.)
• The Charter should provide people with effective judicial and non-judicial remedies where their human rights are breached by a Tasmanian public authority.  There should be a stand alone cause of action and all relevant relief, including compensation, should be available.  (The Proposed Model does not contain a stand alone cause of action and expressly states that damages will not be available.  It currently has a confusing regime of judicial and non-judicial remedies.)
• The Charter should contain recognition of the human rights of Aboriginal People in the Preamble, in particular their distinct role and place as the First Peoples of Tasmania.  (The Proposed Model does not currently include this reference.)

The HRLRC further recommends that the Tasmanian Charter be accompanied and complemented by a comprehensive program of human rights education, both for the public and community sectors, and that legal and advocacy services be adequately resourced to enable people to understand and vindicate their human rights.

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.

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.

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 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.