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.

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/.

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 Special Rapporteur’s report focuses on the need for the Australian Government to ensure that Aboriginal people are included in decision making about matters that affect them.  The report highlights that Government laws and policies must advance the right of self determination and respect the important aspects of Aboriginal culture and way of life.

The reports makes 37 conclusions and recommendations, including in areas relating to:

• legal and policy framework;
• lands, territories and resources;
• overcoming Aboriginal disadvantage, including in relation to health, education, employment and housing;
• the protection of Aboriginal women, children and families;
• administration of justice;
• Aboriginal organisations and management; and
• the Northern Territory Intervention.

The report follows an official visit to Australia by the United Nations independent expert in August 2009.  The Special Rapporteur’s report will be tabled at the UN Human Rights Council in September this year. 

Click here for a copy of the HRLRC’s media release.

While the Special Rapporteur acknowledges Australia’s efforts to address the conditions faced by many Aboriginal communities in the Northern Territory, he expresses serious concerns about several problematic aspects of the Northern Territory Emergency Response that breach Australia’s international legal obligations. 

The Special Rapporteur’s report states that the Northern Territory Emergency Response measures:

• are incompatible with Australia’s human rights obligations, including the rights to non-discrimination and self-determination;
• cannot be viewed as proportional or necessary to achieve the stated objectives of the Emergency Response;
• limit the capacity of Aboriginal people to control or participate in decisions affecting them;
• have had the effect of generating or heightening racist attitudes among the public and the media against Aboriginal people;
• are not improving the lives of Aboriginal people in the Northern Territory; and
• have implications for the direction of the relationship between Australian Governments and Aboriginal people.

The Special Rapporteur has chosen to devote special and urgent attention to the matter of the Northern Territory Emergency Response in advance of proposed legislation being considered by the Senate that seeks to partially reinstate the operation of the Racial Discrimination Act 1975, but expand the income management provisions to apply across the entire country. 

The Special Rapporteur’s full report on his country visit will be released in the coming weeks. 

Click here for a copy of the HRLRC media release.

The Centre has made a submission to the Inquiry that considers the human rights principles and standards that are most relevant to the Northern Territory Intervention and the proposed amendments.  In particular, the submission states that any measures imposed as part of the Northern Territory Intervention must:

• respect the fundamental right to equality and non-discrimination;
• involve the genuine participation of affected Aboriginal communities, respect the right of self-determination, and involve the free, prior and informed consent of those communities; and
• recognise that the rights of Aboriginal communities, women and children are closely linked and that women and children must be protected in a way that is racially non‑discriminatory.

The Centre is extremely concerned that:

• while the reinstatement of the Racial Discrimination Act is welcomed, its reinstatement will not take effect until 31 December 2010;
• there is a clear lack of evidence to demonstrably justify the effectiveness, and thus the necessity, of many of the Northern Territory Intervention measures, particularly income quarantining;
• the Federal Government’s consultations with affected communities have been manifestly inadequate and cannot be used to justify the continuation, and indeed the expansion, of the Northern Territory Intervention measures; and
• there has been a complete absence of any meaningful involvement by affected Aboriginal communities in both the formulation and the amendment of the Northern Territory Intervention measures. 

As a result, the HRLRC considers that the Government’s Bills in their current form will:

• continue to breach a number of Australia’s international human rights obligations;
• not be effective in addressing Aboriginal disadvantage;
• continue to undermine the relationship between Australian governments and Aboriginal Australians; and
• arbitrarily impact on the human rights of disadvantaged and vulnerable groups within our society, with the effect that they will become further isolated and excluded. 

Click here for further details about the Senate Committee’s inquiry.