Dear supporters

Investing in principled human rights leadership

I appreciate that many worthy organisations ask for donations at this time of year, so let me tell you why and how your investment in the Human Rights Law Centre will make a difference.

At a time when much of the policy debate in this country is devoid of compassion, it is crucial that a principled voice continues to stand up for human rights and the rule of law.

The Human Rights Law Centre has a proven track record in influencing policy and strengthening legal protections for human rights.

Whether through our evidenced-based advocacy or our strategic legal actions, your support allows us to better ensure that governments are meeting their human rights obligations in good faith. It also helps us to promote public understanding and appreciation of the importance of protecting the rights of all Australians.

Your support. Your impact.

With your support, our work over the next six months will promote national action to address the shocking over-representation of Aboriginal and Torres Strait Islander peoples in prisons and youth detention. It will continue to address the inhumane and illegitimate treatment of asylum seekers by challenging prolonged, indefinite detention and the denial of due process. It will continue to use human rights law in areas ranging from public housing to access to reproductive health services to achieve practical and just outcomes.

Power in partnerships

Through our pro bono partnerships, which leverage the capacity and resources of leading law firms and barristers, we’re able to deliver at least $500 of human rights legal services for every $100 donation we receive.

We know many human rights challenges lie ahead, but you can be certain that with your help the Human Rights Law Centre will be there defending freedom, respect, equality, and dignity.

Strong, proactive, independent advocacy

With less than one fifth of our funding coming from government, your support is central to our ability to deliver strong, proactive, independent advocacy on key human rights issues.

Invest in human rights leadership today: Invest in the Human Rights Law Centre.

Thank you

Hugh de Kretser
Executive Director
Human Rights Law Centre

The HRLC is a registered charity and has been endorsed by the Australian Taxation Office as a public benefit institution, meaning that all donations are tax deductible.

www.hrlc.org.au/donate

The Guide considers strategies and tactics that NGOs can use to contribute to the implementation of UN recommendations at the national level. Effective follow-up by civil society is vital to ensuring that UN recommendations lead to an improvement of the human rights situation on the ground.

 The Guide is intended for a diverse audience, working in different countries and sectors, and with different areas of focus and expertise. The Guide outlines a range of strategies with a view to NGOs identifying those which are most appropriate to their domestic political, legal, economic, and social contexts and their organisation’s goals, resources, and working methods.

Despite having been found to be a genuine refugee in September 2009, Rahavan Yogachchandran, his wife and their three children had been detained on the basis that he and his wife were assessed as a security risk by ASIO. They were not given specific reasons for ASIO’s decision and were denied any legal avenue to challenge it.

“It was terrible spending so long in detention. One of my children was born in detention. My children would always ask me why we were detained. They were so confused and didn’t understand. There was nothing I could tell them,” Mr Yogachchandran said.

The Human Rights Law Centre’s Senior Lawyer, Daniel Webb, said Mr Yogachchandran’s case may have had significant implications for other refugees in the legal limbo of being indefinitely detained on the basis of ASIO assessments.

“Rahavan and his family spent four long years locked up. Then, days before the highest court in the land was to consider the fairness and lawfulness of our Government’s treatment of Rahavan, he’s suddenly released. That’s great news for our client, but it shouldn’t take the threat of a High Court case for fundamental human rights to be respected,” said Mr Webb.

Mr Yogachchandran said that whilst being very happy, he was puzzled about the timing of his release.

“We have spent four years in detention and then all of sudden we’re told we are not a risk. I am really happy to be out of detention but it’s hard to enjoy because we have suffered so much. These four years have been a sad part of my life and we can’t get them back. The whole time I could not see any future for myself or my family,” said Mr Yogachchandran.

Rahavan’s release is the first time that the new independent review process, conducted by former Federal Court judge Margaret Stone, has led to the withdrawal of a negative security assessment. This review process can only make recommendations and does not legally bind ASIO or the Government.

Mr Webb said he hoped the withdrawal of Rahavan’s negative assessment showed that the process was being taken seriously, but warned that it was no substitute for proper and legally enforceable review.

“There’s no other context in Australian law where a person can be locked up indefinitely without a detailed explanation as to why and without having the right to a legally binding review of the decision. This has to change,” said Mr Webb.

Mr Yogachchandran, a farmer from the north of Sri Lanka, arrived in Australia in July 2009 after he and his family escaped the conflict in which his father and brother were killed. The family had been in detention ever since their arrival.

“I’m looking forward to finding a place to settle in. I want my children to get a proper education. Nobody knows what the future holds, but if things go well I want to do some farming. I am a positive and friendly person and I’m looking forward to being a part of the Australian community,” said Rahavan.

For further information or comments contact:
Daniel Webb, HRLC Senior Lawyer, on 0437 278 961 or daniel.webb@hrlc.org.au

It’s time for principled leadership to combat senseless discrimination

A draconian bill passed by the Nigerian House of Representatives is yet another example of discrimination on the grounds of sexual orientation and gender identity that is widespread and invidious throughout the world. If enacted, the bill will criminalise same-sex relationships and the ‘aiding or abetting’ of same-sex relationships. It would also forbid the formation of Lesbian, Gay, Bisexual and Transgender (LGBT) groups, and even criticism against the bill itself.

Against this backdrop, it is profoundly disappointing that Member States of the UN Human Rights Council have not exercised the principled leadership necessary to ensure that the world’s peak human rights body condemn such flagrant violations at its current session in Geneva.

Civil society organisations had a strong and well-founded expectation that the Council would act during its 23rd session. It is a year since the UN High Commissioner for Human Rights presented a report to the Council documenting the widespread incidence and devastating impact of human rights violations against lesbian, gay, bisexual, transgender and intersex persons, including killings, rape, torture, arbitrary arrest and systemic discrimination. And it is more than two years since years the Council adopted its first, and to date only, resolution on sexual orientation and gender identity – a resolution that many States have failed to implement.

With the Council deferring meaningful action on sexual orientation and gender identity until at least September – at which point many NGOs hope and expect it to establish a procedure or mechanism to ensure sustained and systematised attention to violations of LGBTI rights – there are a range of steps that States can take in the meantime.

Firstly, States should amend or repeal laws – such as that proposed in Nigeria – which criminalise homosexuality or same-sex relations. Such laws violate both the international law prohibition against discrimination and the rights to freedom of expression and association. Such laws also serve to stigmatise same-sex relations and increase the incidence of homophobic violence and harassment. A coalition of Nigerian human rights defenders, in a statement released earlier this week, condemned the bill as likely to lead to an ‘increased rate of harassment, witch-hunt and vindictive accusations which will impact on every Nigerian’. (While homosexuality was decriminalised in Australia largely during the 1980s it is of note that gay men today remain haunted by the shame and stigma of past criminal convictions for gay sex offences.)

Secondly, States should enact and strengthen laws to prohibit and redress discrimination on the grounds of sexual orientation or gender identity. Such discrimination is as reprehensible as that based on race, religion or nationality and is deserving of at least the same level of legal recognition and protection. (Australia is on the cusp of enacting federal legislation that will, for the first time, introduce the new grounds of ‘sexual orientation’, ‘gender identity’ and ‘intersex status’ into federal anti-discrimination law – this represents a long overdue but very  welcome advance for the rights of LGBTI people in Australia.)

Thirdly, States must take positive action to prevent, investigate and prosecute all forms of discrimination and violence based on sexual orientation or gender identity. (Such action in Australia could include supporting social marketing and education campaigns such as “No To Homophobia” that work to shift attitudes and behaviours and increase reporting rates for those suffering discrimination and abuse.)

The UN Human Rights Council will rise at the end of this week and commence its 24th session in September. At that session, the Council must adopt a response – or at least a concrete road map – to ensure that there is regular and systematised reporting on LGBTI rights. Such an approach is necessary to document violations, identify protection gaps, highlight best practice and provide some redress for victims of these senseless violations.

Dr Heather Collister leads ISHR’s work to protect LGBT rights and support LGBT human rights defenders and Anna Brown leads the HRLC’s work on LGBTI rights.

The Nauruan Supreme Court is currently considering a case brought by a group of asylum seekers challenging the lawfulness of their indefinite detention on Nauru.

The challenge, led by prominent refugee advocate Julian Burnside QC, strikes at the core of Australia’s transfer of asylum seekers to its isolated former colony. It also shines a light on our practice of employing former colonies to do our dirty work but then using their sovereign status to deflect criticisms their way.

The asylum seekers claim they’re detained in circumstances which violate the protection of personal liberty in the Nauruan Constitution. They seek, among other things, immediate release. A similar proceeding is on foot in PNG.

Since 14 September 2012, about 430 asylum seekers have been transferred to Nauru and a further 300 to Manus Island. Indefinite detention in remote places is a central component of the Australian Government’s “no-advantage” policy. It’s perhaps the most draconian of all the threats being used to deter people from coming to Australia by boat.

A court decision that such detention is prohibited by local laws would raise questions as to the future of our regional processing policy in its current form. It may well be that Australian Government policy will be frustrated, at least in part, by the Constitutions of its former colonies.

In addition to the issues of local law at their heart, the cases raise much broader questions about Australia’s post-colonial politics.

The Australian Government’s line on the Nauru case – that it’s a matter for the sovereign state of Nauru – is a familiar response.

When funding was sought from the Australian Government to provide the applicants in the Nauruan case with access to lawyers, they said it was a matter for Nauru as a sovereign nation.

When criticisms have been raised about the lack of media access to the detention centres on Nauru and Manus, the Government has said that regulating access is exclusively the responsibility of Nauru and PNG as sovereign states.

When allegations have been raised that the detention of people in the processing centres violates international human rights protections, Australia has said that our human rights obligations end once we’ve transferred people offshore to other sovereign states.

It’s a matter for them, not us, seems to be the default defence. But this persistent deflection of responsibility belies the extent to which the Australian Government maintains effective control over the arrangements.

Under Australian law, asylum seekers who arrive in Australia are being taken by Australian authorities to Australian funded processing centres. While there, they receive services pursuant to contracts between service providers and the Australian Government.

At least in Nauru, Australian officers will be involved in their processing and our Department of Immigration has conceded that once the period of ‘no-advantage’ has run its course, the likelihood is that most will be transferred back to Australia.

All this is being underwritten by extraordinary amounts of Australian public expenditure. In relation to Nauru, costs to date have been estimated at around $1 million per asylum seeker transferred there.

It is plainly inaccurate, if not disingenuous, for Australia to deny effective control and responsibility over its offshore processing arrangements.

It is also incongruous for Australia to be employing Nauru and PNG as agents of our domestic policy, but then invoking their sovereignty and independence to seek to absolve ourselves of responsibility for any grievances raised.

There is incongruity too between what Australia is doing in PNG and Nauru to what said it would do in its successful UN Security Council election campaign. Australia held itself out as being a “principled advocate of human rights for all” and a country that “does what it says”. But rather than being a principled advocate for human rights, Australia may well be sub-contracting their violation.

Australia’s selectivity when it comes to human rights and respect for sovereignty are yet further indictments of our flawed approach to a difficult issue. Preventing asylum seekers from dying at sea is a legitimate, indeed essential, policy objective. But instead of punishing those who make it here to send a message to those yet to come, we should be focussing on developing alternative, safer pathways to protection for those who need to seek it.

Punishment and deterrence is the wrong paradigm for addressing the actions of desperate people who lack viable alternatives. A thoughtful regional solution is required, but our current policy achieves only regional complicity in an ineffective, harmful and potentially unlawful approach.

Daniel Webb is a Senior Lawyer at the Human Rights Law Centre.

“Two years after Australia made a number of welcome human rights commitments to the international community, serious violations continue to blight Australia’s human rights record and we have witnessed regression in key areas,” Ms Brown said.

Australia is due to provide its mid-term report to the Human Rights Council on progress in implementing a number of recommendations accepted during its Universal Periodic Review (UPR) by the Human Rights Council, the UN’s chief human rights body, in 2011. Two years ago, NGOs welcomed Australia’s acceptance of a large number of UPR recommendations and its commitment to translate them into practical action. Two years later, however, NGOs in Australia are disappointed by the lack of progress.

The joint NGO statement highlighted a number of concerns relating to the treatment of asylum seekers and refugees.

“Off-shore processing has been re-introduced with over 850 asylum seekers held in austere conditions in Papua New Guinea and Nauru, and not one claim has been processed since August 2012,” said Ms Brown.

“1632 children are currently held in immigration detention in flagrant disregard of international human rights standards and the Government’s own policies,” added Ms Brown. “56 people are indefinitely detained following adverse security assessments, in a legal black hole without judicial oversight, ” she said.

“Disturbingly, Australia has introduced a policy of ‘screening out’ asylum seekers arriving from particular countries. ‘Screening out’ involves returning asylum seekers to their country of origin even before they have an opportunity to lodge an asylum claim, in clear breach of Australia’s obligation of non-refoulement under the Refugee Convention,” added Ms Brown.

Australia’s continuing failures in relation to Aboriginal and Torres Strait Islander peoples were also raised.

“Indigenous peoples in Australia continue to be among the most incarcerated in the world, with rates continuing to rise,” said Ms Brown. “Indigenous young people make up 97% of the juvenile prison population in the Northern Territory.”

NGOs did welcome the release of a National Human Rights Action Plan in 2012, actions such as the establishment of a new Children’s Commissioner and National Disability Insurance Scheme, and steps to improve recognition of sex and gender diversity in Government documentation. “Despite a number of positive steps, we are disappointed by the lack of sustained implementation and accountability measures in Australia’s new Human Rights Action Plan,” said Ms Brown.

The indefinite deferral of the Federal Government’s longstanding commitment to consolidate and strengthen federal anti-discrimination laws also attracted criticism, given it was a key commitment under Australia’s Universal Periodic Review and the Federal Government’s Human Rights Framework. However, the introduction of the Sex Discrimination Amendment Bill 2013 (Cth) was recognised as a positive recent development. “The introduction of a Bill to prohibit discrimination against lesbian, gay, bisexual, transgender and intersex people represents a long overdue but significant advance for these communities and their families,” said Ms Brown.

Australia’s lack of statutory protection of human rights continues to attract criticism. “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,” said Ms Brown.

Australia is due to review its Human Rights Framework in 2014 and will be reviewed again by its peers at the Human Rights Council in 2015.

For further information on Australia’s UPR and the NGO Coalition, please click here.

For a complete copy of the statement delivered on behalf of the Human Rights Law Centre, the National Association of Community Legal Centres Inc and Kingsford Legal Centre, please click here.

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 will, if passed, extend protection under the Sex Discrimination Act 1984 (Cth) to “gender identity”, “sexual orientation”, “intersex status” and “relationship status”. This will mean that lesbian, gay, transgender and intersex people will be protected from discrimination for the first time at a national level and able to make claims against the federal government and agencies such as Centrelink and Medicare.

The HRLC prepared a comprehensive submission on the SDA Bill in April 2013. In particular, the HRLC submission welcomed the definitions of the new attributes, including the explicit recognition and protection of intersex people. If passed, the Bill will represent leading international best practice for the protection of sex and gender diverse people. However, the HRLC made a number of recommendations that focused on removing unjustified exemptions in the Bill, including narrowing the broad exemptions available to religious organisations and schools.

The SDA Bill was introduced after the Government shelved its Human Rights and Anti-Discrimination Bill 2012 which would have consolidated federal anti-discrimination legislation – a decision met with extreme disappointment from the HRLC and other rights organisations. The HRAD Bill contained a limitation on discrimination in aged care services, even when delivered by a faith based organisation, which was not reflected in the SDA Bill when it was first tabled in parliament. At the time, the Attorney-General in his comments to the media said it was still government policy to include the limitation, but did not explain why it was not included in the SDA Bill.

Thankfully, the amendments announced last week will amend the Bill to introduce a limitation on discrimination in Commonwealth funded aged care services, as well as updating references to “sexual preference” in the Fair Work Act 2009 (Cth) and other federal laws with the new terminology “sexual orientation”. Unfortunately, the Government has not proposed also extending protections under the Fair Work Act to “relationship status”, “gender identity” and “intersex status” to further harmonise anti-discrimination protections in federal law. The HRLC and others will continue to lobby for these and other improvements to the Bill.

The Bill is expected to pass through the Senate with the support of the Greens when it is debated later this month. The Bill would then need to pass the House of Representatives in its amended form, with the support of four of the five independents. While the Shadow Attorney-General Senator Brandis has confirmed the Coalition’s support for the SDA Bill it remains to be seen whether the Coalition will support the Bill in its amended form and/or introduce its own amendments. The Coalition is due to make its decision in a party room meeting later in June.

The Bill will be debated in the Senate in the next sitting week of parliament, commencing 17 June 2013, the same time the Senate Legal and Constitutional Affairs committee is due to report on its inquiry into the Bill.

Anna Brown is the HRLC’s Director of Advocacy and Strategic Litigation