Andrea Durbach - Dinner Speech - Sydney

My thanks to Hugh and Emily and the HRLC for the invitation – and to share in this important milestone – your official Sydney landing.

It is a great joy to be here with you all tonight to honour the work of the HRLC and its allies. There is also a lovely sense of synergy given my work many years ago (when I was at PIAC) with my friend and colleague, the inaugural director of the HRLC, Phil Lynch. Indeed, the early beginnings of HRLC were spawned by PILCH first established by my alma mater, PIAC. And it’s been a real thrill to watch the HRLC grow from a positive disrupter (which it remains) into a formidable contributor and I’m delighted to continue our historical connection, now with the added advantage of physical proximity.

What I’m not delighted about is the twitter that was unleashed by your description of me in your dinner invitation as a human rights ‘luminary’. Despite the arrows of glee this allowed family and close (and I imagine, not so close) friends –it also creates enormous room for disappointment and so without delay, I am about to pull you all down into the dark, rather uninviting, gritty and often invisible realm of the degradation of rights and the relentless, urgent fight for their survival at a time when the notion and aim of opposition is being thwarted by the spread of ignorance and the display of rank shamelessness.

As some of you may know, I grew up and practised law in a country where laws

were used to create an unimaginable cruelty against the majority of South

Africans based on the colour of their skin. I worked as a lawyer with victims of apartheid who were subject to acts of deep inhumanity and terror, acts which

were motivated by racism and a desire to punish and silence those who dared to oppose an illegal, brutal regime. 

It was against this backdrop that I came to the practice of law with a certain degree of reticence and resistance.  As a student, I had worried that working within the apartheid system as a lawyer would be tantamount to my justification of it but the forces of opposition - the bold, strategic, persistent and principled struggle against the stranglehold of minority political and economic power by activist communities harmed by its impact, persuaded me to become a conscientious participant in the South African legal system, using the law to carve cracks in the fortress of apartheid.

As a lawyer representing clients charged under the laws and regulations that shored up apartheid rule, I received instruction in the extent to which this pernicious system contaminated every facet of life. We achieved some victories in the courts and the application of harsh apartheid laws and state conduct may have been restrained as a result. Often however, legal remedies remained symbolic, having little chance of enforcement. The overriding scale of hardship and harm and the enormity of damaged lives endured, barely dented. These were the times when fatigue set in and undid any sense of hope. But as lawyers working with fragile communities, damaged by law’s impact, we learnt that in executing our task, we had to ride the waves of political and legal opportunity, judiciously using the courts as sites of struggle.

And in working with community, I learnt about the importance of time and that nothing of enduring value happens quickly: listening doesn’t happen, observation and reflection cannot happen, clarity doesn’t come; seeing the other - imagining one’s self in their shoes – doesn’t happen; and neither can the nurturing of critical alliances or the slow revelation of trust. And if none of these things can happen with time, transformation – whether personal or political - is blocked or, if executed, is ill-considered and ultimately unstable.

But the risk that comes with time is that divisions are fuelled and resistance retreats, and the task of opposition frequently requires that we stand back and take stock to allow a change of gear, a remodelling of its purpose and its form ­ to anticipate, to mobilise, and to innovate mechanisms that disrupt those buoyed by power and those withered by cynicism.

Three years ago, I was invited to work with a gutsy young filmmaker who had begun to document and expose the unlawful removal, brutality and betrayal of a Papua New Guinean community who lived on the shores of Port Moresby. The Paga Hill community of close to 3000 people had been living on the land with permission from its customary landowners for over four generations. In May 2012, the PNG Government issued an order to evict the community, one of the city’s oldest settlements, to clear the way for a multi-million dollar lucrative development – a five-star marina, hotel and elite residential complex on a prime site, a grubby collaboration between a development company, companies with Australian ties (many of which had been the subject of corruption and mismanagement inquiries) and the PNG Government. The Paga Hill community, led by resident and anthropologist, Joe Moses, commenced legal proceedings to appeal the eviction order and to stay further demolition on humanitarian grounds. Against the backdrop of an impending court hearing, a few days later, over 100 machete wielding policeman, many with assault rifles, opened fire on the community and drove bull-dozers through their homes, breaking and burying their possessions, violently displacing the people. Dame Carol Kidu, the then Leader of the Opposition in the PNG Government, arrived to support the community’s right to remain and confronted the police, who forcibly removed her from the site. The court granted the stay and the demolition was halted.

The struggle by a small community led by their defender, Joe Moses, against state and corporate venality, continued over almost 3 years:

  • Joe, with the support of Dame Carol, assistance from academic, Kristian Lasslett of the International State Crime Initiative in London and a small team of local pro bono lawyers, returned to court in a bid to remain on the land on which the settlement was built;
  • on appeal, the PNG Supreme Court found that the development company had no lawful access to the Paga Hill waterfront settlement given questions about its exact boundaries and consequently, the evictions and demolitions were declared unlawful;
  • three weeks after the judgment, police executed further demolitions and evictions in breach of the Court’s order;
  •  in the interim, Dame Carol Kidu - recently retired from politics, once a forceful advocate for the rights of the Paga Hill residents, had been engaged by the development company to negotiate the forced relocation of the evicted community;
  • 3 months later, police arrived at Paga Hill to finish their work ‘burn[ing] the school, the church, bash[ing] women and children at gunpoint and flatten[ing] the community until they [were] forced to leave;’
  • many of the former Paga Hill residents were left homeless in downtown Port Moresby; others took paltry state inducements to move to an arid piece of land, living under rotting canvas, with one tap and minimal sanitation.

The devastation of the Paga Hill community and Joe’s legal battle on their behalf ­ amidst police surveillance, intimidation and death threats which eventually forced him into hiding, has been boldly captured on film by the intrepid, Hollie Fifer who traveled to PNG under cover and at high risk over three years to document their fight. This remarkable documentary, called The Opposition, which sought to give visibility to a community displaced and fragmented by the dictates of greed and the delusions of progress, was invited to screen at a prestigious international documentary festival in May 2016.  Clearly troubled by the public revelation of her turn against her people towards the pocket of the developer, exquisitely mapped and unmasked by Hollie’s film, Dame Carol, propped up by the development company (who indemnified her legal costs), sought injunction proceedings against Hollie and the film’s production company, Media Stockade to restrain the screening of The Opposition. The NSW Supreme Court ordered a temporary injunction on footage in the film relating to Dame Carol. The redacted version of the film - with black screens and white text drawing precise attention to the prohibited footage – was screened at the festival, garnering international attention and acclaim. And some weeks later, the NSW Supreme Court lifted the injunction and found in favour of the filmmakers, who won the right to screen the original version and to their legal costs and subsequently, damages.

But this victory is bitter-sweet. Joe Moses, who narrowly escaped arrest as he flew out of Port Moresby last November to travel to festivals and conferences with the film, cannot return to his country: he fears being shot on the street or held in custody and bashed. And his family remain in Port Moresby, relentlessly monitored by unmarked police vehicles and plain-clothed policemen. The agents of the state who tracked Joe, now follow his children to school and threaten harm to his wife. But the design of the human rights strategy to accompany the release of The Opposition combined with the international screening of the decimated version of the film, has spawned international alliances that have taken the struggle of the Paga Hill community and Joe and his family onto the global stage, revealing the murky workings of a corrupt state and its base executioners.

And this is where the Human Rights Law Centre comes in. Last year, I contacted Phil Lynch, founding director of the Human Rights Law Centre, now Director of the International Service for Human Rights in Geneva, who agreed to host a screening of the film in Geneva for UN diplomats. As a consequence, Joe addressed a meeting of the UN Human Rights Council and Hollie briefed the UN Special Rapporteur on adequate housing and months later, Joe, stranded in Panama following his attendance at an Anti-Corruption Conference, had a fortuitous meeting with UN Special Rapporteur on the situation of human rights defenders, Michel Forst, whom Hollie had briefed some months earlier in Melbourne, where he’d been a guest of the HRLC. Joe, now a UN recognised human rights defender with protection under the European Human Rights Defenders program, was granted a six month stay in the United Kingdom where he is currently studying international human rights law at Nottingham University, and collating evidence in support of the Paga Hill community’s compensation claim against the PNG Government.

[There were two English-speaking countries that would accept Joe without a visa – the UK and Canada. In the words of Hollie Fifer: ‘Joe chose the UK because he loves the Queen. He loves the Commonwealth. And as an anthropologist he’s curious about the country that colonised his own.’]

In January this year, the PNG Government gave the green light to the Paga Hill Development Company to begin construction on the Paga Hill Estate in anticipation of the complex accommodating delegates to APEC 2018. The Australian Government has allocated a fifth of its aid allocation to PNG to fund the event and Aid/Watch have called on the Government to halt support for APEC 2018 until the Paga Hill community has been properly compensated. On the legal front, the HRLC and Keren Adams, who leads their work on business and human rights, is investigating the complicity (and possible liability) of Australian companies in the unlawful eviction of the Page Hill community.

And Joe is on the other side of the world in a cold climate, separated from his own family, unable to sleep, in fear for their lives.

But tonight – I am delighted to say, he is here with us, as our guest of honour, our luminary, with The Opposition producer, Rebecca Barry. 

And so to conclude and draw in the threads.

Joe, in many ways, this is my tribute to you and to Hollie, and to the Human Rights Law Centre warriors - and those who continue to inhabit, in the words of Seamus Heaney, the ‘republic of conscience,’ the uneasy and exacting state of opposition. 

Despite the seeming inevitability of apartheid rule, in 1994, three centuries of colonialism and white supremacy, reinforced by repressive governments and rapacious industrialists, were overturned by the combined and determined forces of enduring popular resistance, leadership by key individuals, multifaceted and strategic innovation, and engagement with international points of pressure. That this very new, fragile land emerged from the wreckage of apartheid to undertake an unimaginable transition to democracy in my lifetime against massive odds is testament to an extraordinary triumph of opposition.  That it is struggling to find its way just over twenty short years in from a turning point in South African and world history, is an inevitable response to layers of deeply entrenched and destructive practices, to the necessary risks of political compromise and to a nation revising its expectations as the enormity of change hits home.  

And so it is with Joe Moses and the Paga Hill community and the precarious cycle of resistance, the heroic moves forward and the inevitable falling back.

Hollie Fifer speaks to that cycle:

What kept pulling me back, ‘was the sharp resistance of it all. The community’s refusal to get around the table and negotiate with the company knowing their voices would be diminished.

            … I didn’t realise that you could use litigation in a positive way to gather more evidence, to put on the public record. And I didn’t realise the importance of the media’s role – especially the independent media - to win in the arena of public opinion. Then, to build and draw on the strength of international solidarity. And the absolute need for supporters  - for if we didn’t get help from our partners and our funders who supported the case, well we would have been bankrupt before getting to court.

And ultimately, the film highlights the value of the visual, not just as a disrupter, but as a means for taking us – wrapped up in our own burdens and sitting on the edges of creeping privilege – straight in to the blows of real worlds and their wounds. And with the demolition of Paga Hill, most of the community’s records and documents were destroyed and Hollie’s camera, employed as the pen, has meant the documentary has become the community’s strongest evidence base for their damages claim for the loss of their homes.

Finally, The Opposition reveals the critical role of human rights defenders in our society. As Hollie Fifer so aptly states:  

they are the linchpin, the nodal point for what comes from the ground, from the people. If you help the human rights defender, you help all the people that they help.

And that is why we are here tonight ­ to pay attention to and acknowledge the tenuous presence of opposition and its constant battle to stand firm against the forces of denigration, manipulation, and co-option. Whether it is the drive of a nation or the resolve of a small community to take on a hostile state, both require the ongoing reinforcement of opposition via intellectual, moral and financial support. It is the work and innovation of organisations like the HRLC, PIAC, legal aid commissions, the Australian Human Rights Commission, NGOs, and their affiliates in academe and in the professions, who act as the essential conduit from sites of opposition to law courts, to the media, to policy-makers. But most importantly, they pull us in from the sidelines and remind us that the struggle of Indigenous Australians, of women, of those who identify as LGBTI, of refugees, and communities displaced by our messing with the climate is not (in the words of Clive Hamilton) ‘a spectacle that takes place outside the bubble of our existence.’ Rather, it is a struggle central to us all, intrinsic to our legacy. These are the curators of our democracy who question, who challenge, who dare to name, who hold up mirrors to ourselves, and hold the shameless to account. They make a difference to ordinary lives and they make us critically aware of the penetrating words of the Polish Nobel Laureate, Wisława Szymborska:

                        [W]hatever I do will become forever what I’ve done.

Hugh de Kretser - Dinner Speech - Melbourne

One of our responsibilities as human rights lawyers, is ensuring that the voices of our clients - the people we work with - are heard in the public debates around their rights and interests.

I’m proud of the work we’ve done over the past 12 months to help put the voices of our clients at the centre of public debate.

The voice of Carol Roe - calling for reform so that no other family has to endure the tragic loss of their daughter or granddaughter – dying in police custody after being locked up for unpaid fines.

The voice of people like Aziz Muhamat or Nayser Ahmed – trapped for years on Manus Island - in Nayser’s case tragically separated from his wife and children living in Sydney – all because he arrived on a boat a few days after them.

Or the voice of 16 year old trans boy Ethan - who spoke out about the need for laws to end the bullying and discrimination that he experienced at his school in Adelaide.

Amplifying their voices is not only the right thing to do, it’s also the most effective way to bring about change – ensuring that those with the power to change laws and policies hear directly from the people affected by them.

I want to thank you for coming here tonight – for lending your voice and support – to help achieve a shared vision of an Australia where the fundamental human rights that belong to every single one of us are protected and promoted.

Tonight we’ll be privileged to hear the voice of Kirstie Parker – a brilliant Aboriginal leader who has been at the forefront of telling her people’s stories and advancing their rights.

And I acknowledge that were meeting here on Wurundjeri and Bunurong land and pay my respects to their elders.

The Human Rights Law Centre’s impact comes from so much more than the work of our staff alone – as talented as they are. It comes from the partnerships we have with the people in this room.

I want to welcome our pro bono, community, legal aid, ALS, academic and philanthropic partners. Our close friends and roommates at Justice Connect.

Representatives from the Victorian and Federal Governments.

Shadow AG Mark Dreyfus and state MPs Sue Pennicuik and Fiona Patten.

Justice Mark Moshinsky. The Victorian Ombudsman Deborah Glass, former Cth Ombudsman Colin Neave and Kristen Hilton, the Victorian Human Rights Commissioner Kristen Hilton.

Our chair Cathy Branson, board members and past chairs – and I’d particularly like to acknowledge and thank Michael Kingston for his great contribution to our organisation.

Every single person in this room is playing a role in supporting human rights. We’re in the midst of a democratic and human rights recession in Australia and globally. Have no doubt, your support is needed to respond.

I also want to thank and acknowledge our generous sponsors The Saturday Paper, Caine Real Estate and Wendy Brooks consulting. And also our Sydney dinner sponsor Ethical Jobs.

I want to pause here to acknowledge Professor Gillian Triggs who is in the room tonight.

Gillian’s term as President of the Australian Human Rights Commission ends in a few weeks.

Gillian, thank you for all your tremendous service to human rights over your career.

The strength and resilience you have shown over the past 2 years has been inspirational and so important - and it’s so good to see you completing your term as President on your own terms.

The injustices Gillian exposed convincingly showed the lack of legal protection of human rights in this country and why we need a national human rights act.

The way Gillian and the Commission were attacked for doing so – for doing their job - highlights the erosion of our democratic system and how we have to take action to restore integrity. 

The last 12 months at the HRLC have been our best yet.
We’ve led nationally significant work that has:

  • Secured vital equality reforms for LGBTI Australians – from IVF and adoption equality to anti-discrimination protections – while continuing to play an important role in the push for marriage equality
  • Building on the success of the #LetThemStay campaign we’ve continued to ensure the safety of 357 people seeking asylum, including over 100 children, who are at risk of return to harm on Nauru and Manus. That’s a huge number of lives to be directly impacting and a huge amount of harm to be preventing – and I want to thank all the pro bono lawyers in the room who’ve worked on these cases. We’ve also shifted the debate on Manus and Nauru towards a political and public acceptance that they must close and the people there must be brought to safety.
  • Elsewhere we helped to secure a commitment to ratify the UN’s anti-torture protocol which will see independent oversight and inspection of every single place of detention in Australia; and
  • We’ve seen off further attempts to weaken our racial vilification laws.

We’ve recruited exceptional new staff, expanded our business and human rights work, opened a Sydney office and above all extended our impact.

Our work just this month really highlights the impact we’re having.

At the start of May, Emily Howie was at the High Court supporting Bob Brown’s challenge against Tasmania’s excessive anti-protest laws, standing up for the right of Australians to gather together and speak out on the issues they care about.

Just last week, Anna Brown stood with the Queensland Premier as she apologized to the state’s LGBTI community for the criminalization of homosexuality – an apology that we prompted through our work in Victoria and other states.

And on Monday, Adrianne Walters launched an agenda-setting report with Vickie Roach and the Change The Record coalition. The report highlights the massive increase in the imprisonment of Aboriginal women in Australia and its links to our failure to address child neglect and family violence – its draws on and builds on our work in the Ms Dhu inquest. 4

Youth Justice
But I particularly want to talk about our work in Victoria to stop the state from locking up children at the Barwon maximum security adult prison.

Over a decade ago in a previous job, I used to travel to Barwon to see adult clients on prison law issues – people convicted of serious crimes including murder.

I visited the Melaleuca Unit at Barwon when it opened in 2007 to see first hard one of the harshest and dehumanizing units ever built in Australia – designed to house people convicted of gangland and terror offences.

I never thought I’d be driving there in 2017 to visit boys as young as 15, locked up on remand at Barwon, because the government maintained there was nowhere else in the state to house them after the damage to Parkville.

Our work at the Human Rights Law Centre is national, engaging with all of the 9 federal, state and territory governments.

It means we can succeed in one jurisdiction and then push to replicate those good reforms in other jurisdictions – as we’ve done with safe access to abortion clinics, LGBTI reforms and more.

It also means we see the worst of actions by governments and can stop them from repeating in other jurisdictions.

Neglect and abuse in youth justice systems, resulting in unrest, riots and the transfer of children to an adult prison, had already played out in Western Australia, in 2014 and then in Northern Territory, in 2016.

For months we worked with lawyers and journalists in the Territory to expose the abuses in Don Dale that were highlighted in such a devastating way by 4corners - and we’ve been engaging with the NT Royal Commission to help to make sure those abuses never repeat.

That’s why we were so determined to stop Victoria going down the same path - and why we couldn’t stand back and allow children to be exposed to harm.

International law bans solitary confinement of children but here in Victoria we were locking up children for 23 hours a day for days on end in small concrete adult prison cells.

For some of them, handcuffing them whenever they were out of their cells. 

Denying mandatory school age kids access to proper education.

Giving them little, or on occasion, no time at all outdoors in the bleak exercise yard.

Threatening them with tear gas and dogs, let alone the extremely disturbing reports of assaults by adult prison guards.

At stake in this case was not just the futures and basic rights of the kids directly affected, but even more than that, what was at stake was the fundamental principle that as a society we should never give up on our children.

Not only locking up kids in an adult prison morally wrong, it undermines community safety.

Children in custody will be released at some point – the question we have to ask ourselves is, what do we want to focus on while they are detained?

Do we want them coming out hardened or do we want to give them the best possible chance of living a productive life in the community? Showing them that better options exist and giving them pathways to follow them.

That’s why is was such a critically important moment last Thursday morning when the Victorian Supreme Court ruled decisively in our favour that it was unlawful to lock up children at Barwon.

By 5pm on Friday night, no child was left at Barwon. All the boys had been moved back into normal, lawful, age-appropriate youth justice centres.

The transformation we’ve witnessed when boys have finally been transferred out of there is profound.

It should never have taken 3 Supreme Court cases and an appeal to get this to point - which is why we need to do more to build public and political understanding of the need for a safe, humane youth justice system that promotes rehabilitation for the children in it, the large majority of whom are themselves victims of neglect, abuse and trauma.

The HRLC
I want to end by reflecting on how our work on Barwon demonstrates why the HRLC’s model is so successful.

So many ingredients went into this case.

There was the ability to take action quickly – we filed the initial Supreme Court case only a few hours after the first transfers to Barwon.

There was extraordinary support from pro bono lawyers – many of whom are in the room tonight. I’ll name them because this was the hardest litigation I’ve ever been involved in and their commitment– the long nights, the weekend work, often under extreme pressure - was extraordinary – Brian Walters. Ian Freckelton, Ron Merkel. Matt Albert. Sarala Fitzgerald. Adam Macbeth. Peter Morrisey and Claire Harris. Thank you - and thank you to all those who worked tirelessly behind the scenes without any public recognition and without whom this case would not have been possible.

There was the strong partnership with the Victorian Aboriginal Legal Service who are here tonight.

Aboriginal people and their determination for justice played a critical role. The staff at VALS had the courage to move quickly, go on the record for their clients and trust us and the pro bono team. VALS were steadfast that no kids should be in an adult jail and had a living memory of the harm suffered previously when Aboriginal kids were transferred to a Victorian adult prison.

There was the partnership with Fitzroy Legal Service on the second Supreme Court case and appeal.

The willingness of people inside the system to speak out – at great risk and personal cost to themselves.

And the critical intervention in the legal cases from the Vic Human Rights Commission and the important role played by the Ombudmsan and the Children’s Commissioner. 

Advocacy
In line with our model, we integrated the legal action with broader advocacy.

Working with partners from Amnesty, STC to the Jesuits, we engaged in the public debate, drawing on the research and evidence about what helps rehabilitation, writing numerous opinion articles and doing countless media interviews – focusing on the Herald Sun and 3AW where these debates are often decided.

The penultimate essential ingredient was our independent funding. Independent funding is so critical to our ability to fearlessly take action and speak out, even as the Minister attacked us publicly.

And the final ingredient was two superbly talented staff Ruth Barson and Alina Leikin – whose child rights work on this case was truly mighty.

There will be more challenges to come in this space, but we should celebrate this result – and what is also a fantastic win for Victoria’s Human Rights Charter – finally giving it teeth – finally living up to its promise.

If only we had a national human rights charter… don’t worry, we’ve got a plan for that too.

I started by talking about the ensuring the voices of our clients are heard in debates about their rights and interests, and so I want to end with the voice of one the boys from the Barwon case who we got moved to Parkville a couple of months ago and who is due to be released soon.

We worked with him to write an article which was published in the Herald Sun explaining in his words why sending children to Barwon prison was a terrible mistake.

We’ve done wrong, I know that, and there is a price. But putting kids at Barwon or treating us like caged animals is too much. And it won’t work.

What’s actually helped me the most has been the opposite. Being shown some care.

Some of the teachers and staff who have treated me with respect have shown me that there are better ways of doing things. That people can make something of themselves.

Thank you for coming tonight. None of our work – none of our impact - would be possible without you.

Your support, your shared belief in human rights is critical to what we do.
Hugh de Kretser

Kirstie Parker - Keynote Address - Melbourne

Good evening everyone.  It’s an honour to be here.

I begin by acknowledging Wurundjeri brothers and sisters from the Kulin nation, their ancestors and their enduring custodianship of this beautiful place.  Thank you for your leadership and for your generosity in allowing me to walk on your country. Thank you, Aunty Georgina Nicholson, for welcoming us here.

The views I express here tonight are my own, shaped by my lived experience.  I am Aboriginal, a First Nations person, a Yuwallarai woman.  I’ve worked in most states and territories in Australia and my job – whether through journalism, organisational leadership or political advocacy – has been to gather, research and tell stories of my people.

I thank Baiame (and the magnificent Human Rights Law Centre, of course) for the opportunity tonight to stand before such an esteemed and influential audience and continue to do that.

First, I will tell you something of me.

My story, our stories
I’m the third of four children born to an Aboriginal woman from northern NSW. Raised by Mum and my dad, a Pom who migrated to Australia in the sixties, we grew up healthy, happy, confident and educated.  Further back, my maternal grandfather and his countrymen toiled on land that was morally theirs but legally – white way – not. Mum and her sisters were domestic servants, paid pittance, if at all.  Several of my older female relatives have endured extreme long-term domestic violence that has marked them for life. One male relative died on the dance floor of the public hall in our home town after being stabbed by his partner, and a young cousin was beaten to death by a publican in the town where some of my family had fled, in grief. Another relative about my age has spent more than half of his life behind bars for violent and pointless crimes; his daughter – with three young children of her own – is also now sadly familiar with the inside of a jail cell.  My mum, the oldest of 18 children, died of chronic illness at just 54 years of age but had been already preceded in death by nearly half of her younger siblings.

I tell you these things not to evoke pity, or to establish some kind of dysfunction ‘cred’, or so you’ll cry me a river but because they’re truths.  Not just truths for my family but familiar to many Aboriginal families.

But there are other truths; stories of accomplishment and achievement.  In my blended family, my sister is an award winning writer, one of my brothers a surveyor, and the other lived Spain for eight years teaching English. More than a few of my aunties, uncles and cousins are stalwarts of the country towns where they live, quietly going about their business, providing for their families, leading community-based organisations, being role models.  We have teachers and other education workers amongst our number, a police officer, and sportspeople who have represented at the national level.

I have had the privilege of addressing United Nations gatherings and have sat across from Prime Ministers asking them to respect Aboriginal and Torres Strait Islander people’s rights; to support us to make change in the areas that contribute to what is generally a dire predicament – more of that later.  At present, I have the privilege of running an organisation – the National Centre of Indigenous Excellence in Redfern – that builds, celebrates and amplifies excellence in Aboriginal and Torres Strait Islander young people; glorious kids who are a constant reminder of why none of us should give up.

Again, excellence and achievement resides not just in my family but in many Aboriginal families. These are our lives.

1967 – A national story
Now, I’d like to tell you another story. It is a nostalgic story, alternately happy and sad. Some of it comes straight from archives and history books and, the rest from my imagination…

It is 1967 (coincidentally the year of my birth) and a group of women wearing shift dresses in floral and geometric prints, perhaps a corduroy pantsuit, are gathered around a kitchen table in Frenchs Forest in Sydney’s north.

In the background, the wireless emits tunes by The Easybeats, The Masters Apprentices, Kamahl, Ike and Tina Turner, The Beatles, maybe Charley Pride and Jimmy Little, intersected with news of protests against Australia’s involvement in the Vietnam War, the US Supreme Court’s deliberations on whether interracial marriage is constitutional, and the stripping of Muhammad Ali’s heavyweight world championship title for refusing to be inducted into the US Army.

It’s important to note that at that time, Aboriginal people had never been counted in the national census – regarded as mere flora and fauna in the landscape.  Depending on where they lived, the State controlled almost every aspect of their lives: who they could marry or mix with; where they could live (on reserves and forbidden to go into town); whether they could drink alcohol; who they could work for and whether they’d be paid; and whether they could speak their language, practice their traditional culture, or keep and care for their children.

Amidst the detritus of afternoon tea that day at Frenchs Forest – a teapot topped with a crocheted cosy, empty cups and saucers, and plates bearing the crumbs of a teacake – as well as piles of printed flyers bearing the face of a cherubic Aboriginal child, some serious business is being discussed, led by three very different women.

The youngest of them is the host, Faith Bandler – a 49-year-old woman of Melanesian/Scots/Indian heritage; a mother of two – her biological daughter, 13, and a fostered Aboriginal son, 10. Faith’s husband Hans, an Austrian born Jewish man, is somewhere in the background.

The other two women leading the discussion are Faith’s mentors: 66-year-old Pearl Gibbs, a Ngemba/Muruwari woman whose family originated in Bourke NSW (up the road from my own traditional country).  Pearl is a former domestic servant and fruit picker, a separated mother of three. And Lady Jessie Street, 78, the well-to-do matriarch of a family highly influential in judicial circles, whose father reportedly traced his ancestry back to Alfred the Great.

This trio are feminists with impeccable pedigrees in the pursuit of human rights – in Faith’s case, through organisations like the Women's Electoral Lobby and the Australian Republican Movement, and as a delegate to the Australian Peace Congress.

For Pearl, her activist ‘chops’ came through involvement in the Aborigines Progressive Association that organised the historic Day of Mourning on Australia Day in 1938, the Australian Aborigines’ League, the Union of Australian Women, and the Aborigines Welfare Board, and as a founder of the Aboriginal-Australian Fellowship.

Lady Jessie had earned her stripes within the National Council of Women of NSW, the United Associations of Women, the Australian Federation of Women Voters, and the World Peace Council, helping in no small part to ensure the rights of women were included in the 1948 Universal Declaration of Human Rights.

However, it is the Federal Council for the Advancement of Aborigines and Torres Strait Islanders (or FCAATSI) that brings Faith, Pearl, Lady Jessie and their comrades together this day….and the Council’s 10-year-plus campaign to bring about a referendum to amend the Australian Constitution to include Aboriginal people in the census and give the Commonwealth power to make laws for them.

They and their comrades are building upon the ‘Freedom Rides’ held two years earlier when a young Charles Perkins and other University of Sydney students toured a bus through NSW country towns to draw national and international attention to the poor living conditions of Aboriginal people and the racism that was rife.

Around this time, Faith was interviewed by the ‘bible’ that is the Australian Woman’s Weekly and I would like to read you some of what she said:

“All that is needed is opportunity, and above all a sense of dignity.  And a Yes vote on May 27 can open new doors for all the Australians who happen to be black.  A Yes vote will mean that the Aboriginal people can come under Commonwealth law and derive all those benefits which only the Federal Government can give them.  At the moment, for census purposes, they’re not even counted as existing. A yes vote will change that...I should like to see money allocated by the Federal Government – if the Referendum empowers it to do so – for education and that includes adult education.  Especially I want help for Aboriginal mothers. And a bigger allocation for housing, for housing is at the heart of the matter.”

Around the kitchen table, our heroes Faith, Pearl and Lady Jessie are nervous. After nearly a decade of campaigning – churning out posters, handing out countless flyers on street corners, giving soapbox speeches, pinning ‘Vote Yes’ badges on the lapels of anyone who will let them – the day of reckoning is near. They have no way of knowing whether their tireless advocacy will pay off.

The result and aftermath
Fast forward three weeks later to 27 May 1967, and you probably know the results – or at least the numbers. An overwhelming 90% of Australians – a majority of people in a majority of states – voted ‘Yes’, making the Referendum the most ‘successful’ in the nation’s history.  Not surprisingly, there was jubilation.  For many Aboriginal and Torres Strait Islander people, the result was symbol of hope – a sign that non-Indigenous Australians recognised the need for equality and justice and would stand shoulder to shoulder with them.

The rest is history. Once the Federal Government could make specific laws for Aboriginal and Torres Strait Islander peoples, it established the Council for Aboriginal Affairs comprising state and territory ministers to work on Aboriginal and Torres Strait Islander issues and appointed the first Minister for Aboriginal Affairs, W.C Wentworth in 1968.

The Minister instituted ‘positive discrimination’ measures to directly address disadvantage in areas like health.  Important pieces of legislation around governance and land rights were enacted, creating the bedrock for later big ticket measures such as the establishment of the Aboriginal and Torres Strait Islander Commission (ATSIC) and the Council for Aboriginal Reconciliation, and the passage of the Native Title Act 1993.

50 years on
Now, some of you may be aware that next Saturday, 27 May 2017, marks 50 years since that historic poll.  This is something of big deal…five decades to the day since something that involved the whole country.  But some may not perceive why feelings about the anniversary are distinctly mixed, and it is not quite the ‘celebration’ that it might have been.

Indulge me as I summarise why.  Fifty years after the Referendum:
• As adults, we die an average of 10–17 years earlier than non-Indigenous Australians, and experience much higher rates of chronic illness. 
• Our babies die at more than twice the rate of other Australian babies. 
• Our kids suicide at a rate three to four times that of non-Indigenous kids, and the rate of suicide amongst our young men is the highest in the world. 
• Our unemployment rate is at least four times that of the general population. 
• Despite native title and various land rights regimes, many of our communities remain impoverished. 
• Community-controlled health, children’s, legal, domestic violence and other vital services are drip-fed funding and sometimes cut off entirely. 
• The elected representative body for our people, the National Congress, has no assurance of future funding. 
• Just two to three per cent of the broad Australian population, we make up 27 per cent of the prison population. Our men are twice as likely to be in prison than in university. 
• Our women are hospitalised due to family violence-related assaults at a rate 34.2 times that for non-Indigenous females. 
• Child removals are sky high – nine and a half times the rate for non-Indigenous children, and much higher now than during the Stolen Generations era. 
• Australia pledges commitment towards human rights and Indigenous rights but is routinely criticised internationally for not showing it.

What are we to make of this laundry list of shame? Perhaps that Australians have stopped seeing crisis when they look at us?  That, after report after report, inquiry after inquiry, governments are wilfully blind?  That crisis is just the old and new black? That such is the obsession with survival of the fittest that Australians just don’t care?

There is one further statistic that I want to shine a particular light on.

Over-Represented and Overlooked
Earlier this week, the Human Rights Law Centre and the Change the Record Coalition, released a damning report called ‘Over-Represented and Overlooked’ on the over-imprisonment of Aboriginal and Torres Strait Islander women.

The report tells us that, notwithstanding the fact that the overwhelming majority of Aboriginal and Torres Strait Islander women will never be locked up, the number of those who are has skyrocketed nearly 250 per cent since the Royal Commission into

Aboriginal Deaths in Custody 25 years ago.
In 1991, there were only 121 of our women in prison, representing 17 per cent of the female prison population. Now, there are 1062; around 34 per cent.

Now 21 times more likely to be imprisoned than non-Indigenous women (and at more than double the rate of Aboriginal and Torres Strait Islander men), our women are the nation’s fastest growing prison population.

Eighty per cent of our women in prison are mothers.  The vast majority of them are survivors of physical and sexual violence, and many also struggle with poverty, mental illness, disability, and the effects of trauma poverty.  And housing insecurity – the very thing that Faith Bandler identified as ‘at the heart of the matter’.

As the new report says, this is an urgent human rights issue that not only harms our women but profoundly and irrevocably damages the our kids – who’re already over-represented in child protection and youth justice systems.

I don’t need to go into great detail about what is in this report.  As you likely know, it calls for system-wide change to redress racialised and gendered justice system outcomes.  Its recommendations include reforming laws and practices that disproportionately and unfairly criminalise too many of our women and men. Rest in peace, Ms Dhu. It calls for more support for those working at the coalface, and for governments at all levels to meet them along the road.

‘Tough on crime’ approaches favoured by some governments are more expensive than prevention, diversion and rehabilitation, and simply don’t work.  I add my voice to those of the HRLC and Change the Record to say that enough is enough. Governments, policy makers…please, stop ignoring this issue and put our experiences and voices ‘front and centre’.  As Vickie Roach says in ‘Over-Represented and Overlooked’, our women are entitled to dignity.

As the report notes, there’s been some positive action by police, the courts and some governments.  For example, the recent Victorian Budget commitment of half a billion dollars to tackle family violence through crisis housing, support services, specialist interventions, and programs to promote respect for women.  Premier Daniel Andrews was right when he said: “The cost of not acting is just enormous and we need to all play a part in that."

After that Budget announcement, I was very moved by a Facebook post from my friend Antoinette Braybrook (known to many of you as a Co-Chair of Change the Record and for her incredible work combatting family violence), in which she wrote: “This morning, I’m going to into work to plan, not fight. First time in 15 years”.

But sadly, in this space, even where there is good news, bad news is usually just around the corner – such as the findings in ‘Over-Represented and Overlooked’.

Crossroads – which way?
I have lost count of the number of times I’ve heard it said that Australia is at a crossroads in Indigenous affairs. But I believe we’re definitely at one now.

As I speak, Aboriginal and Torres Strait Islander delegates from regions throughout the country are preparing to travel to Uluru to take part in an historic national convention to determine what is most important – fundamental – to them, if the nation is to proceed with further Constitutional change about us.

There was talk, a couple of years back, that a new referendum on the subject would be held on next week’s anniversary of the 1967 Referendum. But that wasn’t to be.

Instead, some five or so years after an Expert Panel on Constitutional Recognition reported to government, our people at last have collective opportunity to say what they think about it all. As they say, better late than never.

Over time, discussions in our communities about options for Constitutional change have expanded to include a Treaty/treaties or some other form of lasting settlement, and I welcome this.  I can’t predict with certainty the outcome at Uluru but hope that support for a non-discrimination clause to prevent governments from passing laws that racially discriminate – not just against Aboriginal and Torres Strait Islander people but any other group in the country – remains strong.  Seventy-five years after Australia joined 47 other countries around the world to endorse the Universal

Declaration of Human Rights, it is difficult to fathom any legitimate argument against.                                                                                  
Know this: It will not do to merely insert pretty words in a preamble to the Constitution. We must have meaningful, substantive reform – respect, protection and a real say in our destiny – or the heartache we have endured will have been for nothing. Australia will have let all of its people down; those passed, us, and those to come.

Always sitting uncomfortably in our hearts is the question, ‘Can we trust our hearts to those who’ve presided over the situation we find ourselves in today? By the actions of the Federal Parliament in the wake of Uluru, we will know better where we stand.

Coinciding with the final day of that convention, next Friday 26 May, Australia will observe National Sorry Day.  This day acknowledges the experiences of tens of thousands of Aboriginal children who, from the late 1800s until the 1970s, were forcibly removed from their families by government agencies and church missions in an attempt to assimilate them into the culture of white Australia.

This act of extreme violence, from which we’ve scarcely begun to recover, was chronicled in Bringing Them Home. This Sorry Day marks 20 years since that historic report was tabled in the Federal Parliament, and we know from important bodies like the Healing Foundation that there is so much more healing still to be done.

To me, the coincidental concurrence of the Uluru Convention and such significant anniversaries – 50 years since the ‘67 Referendum, 25 years since the High Court’s Mabo judgement, and 20 years since the tabling of Bringing Them Home – seems auspicious.  As a nation, opportunities to tread a righteous path don’t come often. It’s imperative that we don't waste them.

What are the ‘next steps’?
I can’t help but think, if Faith, Pearl and Lady Jessie were now sitting around a kitchen table in the sky, what would they make of the fact that 50 years after they celebrated what they thought was success, the Aboriginal mothers and families for whom they were so concerned are in such a predicament?  That the Referendum did not end discrimination?  That the legacy they’d envisaged has yet to materialise? 

Sorry Day also kicks off National Reconciliation Week (NRW) 2017, which this year has a theme of ‘Let's Take the Next Steps’.  Which brings me to my concluding point.

It has been said throughout history that we shall be judged not by how we treat the powerful but the vulnerable – the last, the littlest, the least. But that is not the sum our mob.  We are the First Australians. Maybe a tiny minority in our own lands but majestic in country and culture, and mighty – knowing that there are many good women and men standing with us, as there were in 1967 and there are in this room tonight.  

While I have focussed tonight on Aboriginal issues, to all of you working across the sphere of rights – for refugees, children, those with disabilities or who struggle with mental health issues, the LGBTIQ community and more, you have my respect as fellow travellers who believe that if you say something, you should mean it; that if you make a promise, you should keep it; and that if you really want to make a difference, you mustn’t give up when the going gets tough. Let’s take the next steps together.

I commend the Human Rights Law Centre for its wonderful work, on its own and as part of the family of advocacy illustrated by the Change the Record Coalition.

Tonight and always…please, dig deep.

Thank you,
- Kirstie Parker 

 

Statement from Imran Mohammad

Imran, now 23, fled Myanmar at age 16 and taught himself to read and write English while being held for over three and a half years in the Australian Government’s refugee detention centre on Manus Island. 

My name is Imran Mohammad. I am a stateless Rohingya from Myanmar who is a genuine refugee on Manus Island.

My fellow[s] and I have been locked up in Australia’s offshore detention centre for almost four years. Somewhere in our hearts we had the hope that we’ll be moved to safety by the end of October this year.

However, this hope was dashed when another devastating announcement was made on 15 May, on a Monday afternoon by PNG immigration which has ruined the lives of refugees and asylum seekers once again. The recent announcement of closing down Manus Island detention centre and re-locating us to the transit centre has made us even more fragile. We have not slept and eaten properly since the announcement was made. We know from our experience that our lives will be in great danger and will experience a lot of harm and lives can be lost.

There are more than 600 refugees in this centre. The US has interviewed around 250 refugees and we hope they will welcome into their country. However, we cannot believe it until we see it.

We fear for those who will be left behind as there is no safety and structure for refugees to be resettled [in PNG].

We are hopeless, powerless, broken and vulnerable and have no intention to fight against anyone. 

All we want is a life that we can create in safety - that’s all we create. And I beg you today on behalf of all the refugees and asylum seekers, please open your heart, show some kindness and compassion and humanity.

We promise we’ll give you our blood and sweat to your great nation [Australia]. Please let us in, please let us be part of your country so we can devote ourselves to your beautiful country.

Torture Convention - the Australian Government OPCAT announcement

The following is an edited extract from Senator the Hon George Brandis QC's announcement the Australian Government will ratify the Optional Protocol to the Convention against Torture. (The HRLC's media release welcoming the announcement can be found here.)

As most of you would know, Australia was a founding member of the United Nations and one of only eight nations involved in drafting of the Universal Declaration on Human Rights.

The committee that drafted the Declaration was chaired by Eleanor Roosevelt. She coaxed, wrangled and sometimes coerced a diverse committee of seasoned diplomats, cantankerous philosophers and renowned jurists. For Roosevelt, human rights were not some abstract concept or some burden imposed upon states from on high. They were earthier than that, grounded in people’s everyday experience.

Speaking almost a decade after the Declaration’s adoption, Eleanor Roosevelt asked a question that we must all continue to pose ourselves. “Where, after all, do universal rights begin?” Her answer? “In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere”. This morning, my focus is on Roosevelt’s small places, in particular, the places where people are detained at the hands of the state. Small though these places may be, they are of great consequence to the dignity of the individual.

Article five of the Universal Declaration is well known to all of you here this morning. In language that continues to resonate, it states simply “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. As we all know, places of detention, prisons in particular, impose immense strain on everyone associated with them, prisoners or detainees of course, and their families, but also prison officers, and others who are responsible for the welfare of those detained. The moral obligation we find in Article five, and the legal obligations we find in later instruments such as the Convention against Torture, must be realised in circumstances that are extraordinarily challenging.

This is not to make excuses; it is to recognise, as Eleanor Roosevelt would have done, the importance of attending closely to the particular environments in which individuals find themselves. Such attention to context ensures that human rights are not merely fine sentiments, not merely cries into the void, but instead, are translated into real respect for dignity of actual individuals. Of course, Australia’s several jurisdictions have already established a variety of mechanisms to protect those rights for people in detention, but we cannot afford to be complacent.

So that is why I am announcing this morning that the Turnbull Government has decided to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly referred to as OPCAT. Australia signed OPCAT in 2009. That was three prime ministers ago. But I’m proud to serve, as I know my friend Julie Bishop is proud to serve, in a Government led by Prime Minister Turnbull that has now made the decision, which I know has been called for by many of you for many years, to ratify OPCAT. We intend to do that by December of this year, following consultation with the states and territories on our proposed model for ratification and implementation. This will be an important reaffirmation of Australia’s deep commitment to preventing torture and other mistreatment in our places of detention.

As you know, OPCAT creates obligations regarding oversight of places of detention. These are intended to assist states to better protect people in detention from torture and mistreatment. The aim is not to shame; it is not to engage in an act of moral vanity. It is to cooperate in a mutual endeavour to bring about a tangible improvement to the treatment of people in detention. Ratification of OPCAT will see Australia establish and maintain what is known as a ‘National Preventive Mechanism’ to prevent torture and mistreatment. Australia will also welcome visits by the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As you are aware, this is a subcommittee of the Committee against Torture. In implementing OPCAT, our focus will be on what might be termed ‘primary’ places of detention, such as prisons, juvenile detention, police cells and immigration facilities. Any environment in which the state deprives a person of his or her liberty poses unique challenges; such challenges are perhaps at their most acute in such places.

Recent events have reminded us of the human, financial and other costs of mistreatment in detention. The Government is of the view that ratification and effective implementation of OPCAT will encourage continuous improvement to inspection and conditions of detention. It will also assist in identifying and resolving issues before they escalate. The decision we announce today demonstrates the keen attention the Turnbull Government pays to the views of civil society and to recommendations received from international bodies.

Of course, almost all places of detention under Australia’s jurisdiction and control are administered by the states and territories. The Government will not usurp their authority or responsibilities by this announcement. We respect the central role played by the states and territories and we view them as partners in ratification and implementation of OPCAT. Accordingly, the Government’s approach to ratification and implementation is collaborative, cooperative and federated. It also aims to be practical and efficient. The National Preventive Mechanism will make best use of existing arrangements and resources and focus on areas of greatest priority. Australia’s National Preventive Mechanism will be established as a national network from among existing inspectorates. The Government proposes to task the Office of the Commonwealth Ombudsman with a facilitative coordination role. The Ombudsman will not have authority over other inspectorates. Nor will it engage in secondary inspections. Rather, it will work with existing bodies to share experience, undertake research, identify gaps and overlaps and coordinate interactions with the UN Subcommittee.

I would like to take this opportunity to thank the Australian Human Rights Commission, with whom the Government has been in dialogue in advance of this decision. I want to particularly thank and acknowledge Australia’s Human Rights Commissioner, Mr Edward Santow, who joins us here this morning and has been one of the driving forces behind the decision to ratify OPCAT. I also want to mention the important role of Megan Mitchell, the National Children’s Commissioner, for her work in raising awareness. The Human Rights Commission’s work over many years has helped to inform the Government’s considerations, and as I say, our dialogue has brought us to this decision point. I have invited the Human Rights Commissioner to continue this work and to help facilitate the effective implementation of OPCAT in Australia. Edward Santow will continue to seek input from civil society representatives – in other words, you in this room and others like you elsewhere – on Australian conditions of detention.

Torture and other forms of mistreatment have no place in Australia. The Government’s decision announced today recognises the prevention of torture and mistreatment must be an ongoing endeavour. Today the Turnbull Government reaffirms its strong commitment to that endeavour.

Book Review: The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials

Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials, Oxford Uni Press, 2014.

In Indigenous Peoples and Human Rights: International and Regional Jurisprudence, Ben Saul examines how Indigenous peoples have interpreted and adapted human rights standards to their unique experiences. The book begins by analysing the different approaches at international law for identifying who is ‘Indigenous’ before delving into the jurisprudence of UN human rights treaty bodies and regional human rights bodies. It concludes with a brief overview of future implementation challenges for Indigenous peoples and human rights.

Saul starts with an analysis of how Indigenous peoples are identified at international and regional law. A difficult question with no definitive answer, it occurs at many different levels and contexts, and involves a wide range of communities and groups. Nevertheless, in most cases who is Indigenous is not a controversial question, though Saul is careful not to dismiss the difficult struggles for recognition still occurring in many countries. The main focus of the book, however, is the struggle over the rights Indigenous people are entitled to under international and regional law.

At the international level Saul examines the jurisprudence of UN human rights treaty bodies and their use for Indigenous rights. The International Covenant on Civil and Political Rights (ICCPR) receives the most treatment with the right to self-determination found in Article 1 being adapted by the ICCPR Human Rights Committee for the specific circumstances of Indigenous issues. However Article 27 of the ICCPR, the right of minorities to enjoy their own culture, has been the right most often raised with respect to Indigenous issues. Due to the lack of Indigenous-specific rights, Indigenous peoples have used minority rights to make human rights claims. These cases have usually focused on traditional Indigenous economic and cultural attachments to land. Saul argues, however, that adapting the framework of minority rights for Indigenous issues is ultimately an imperfect solution and in practice the implementation has been cautious.

Though used less, other UN human rights treaty bodies, such as the UN Committee on Economic, Social and Cultural Rights and the UN Committee on the Elimination of Racial Discrimination have nevertheless dealt with Indigenous issues. Rights to culture and self-determination have been dealt with by the former whereas the latter has dealt with issues of discrimination, the lack of recognition of Indigenous groups and access to justice issues. The Committee on the Elimination of Discrimination Against Women, the Committee on the Rights of the Child and the Committee Against Torture have also dealt with Indigenous issues within their specialty areas.

Following the above analysis of Indigenous rights at the international level, Saul moves to the regional plane, focusing on how the Inter-American and African human rights systems protect Indigenous rights. The protection of property and resource rights, along with cultural, socio-economic and civil rights are all examined in turn. Throughout these sections Saul suggests that the American and African regional systems have gone further than the UN treaty bodies in protecting Indigenous interests. Whereas the international system is abstract and ambiguous Saul argues that the regional systems offer a certain detail and clarity to Indigenous rights.

Indigenous Peoples and Human Rights: International and Regional Jurisprudence is a thorough and well researched analysis of the use of human rights by Indigenous peoples. Though perhaps overly academic for the casual reader, its subject matter makes it useful to anyone interested or involved in Indigenous rights. More broadly, the book can be viewed as an example of how human rights jurisprudence has been influenced, affected and used by a specific group. This makes it useful for those interested in adding a human rights based approach to their argument as well as those practicing generally in human rights.

Kevin Jackman completed his Practical Legal Training at the HRLC.

International LGBTI activists assemble in Montevideo for Equal Rights Coalition launch

Around the world, lesbian, gay, bisexual, transgender and intersex (LGBTI) people face discrimination, violence and serious threats to basic human rights. LGBTI activists work with governments through various fora to address these issues, including through the Human Rights Council and other multilateral mechanisms. Recently, Latin American countries headed a ground breaking resolution for the first UN Independent Expert on Sexual Orientation and Gender Identity in the Human Rights Council.

Read More

Book Review: The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials

Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials, Oxford Uni Press, 2014.

The International Covenant on Economic, Social and Cultural Rights is often described as the ‘poor cousin’ of its better understood counterpart, the International Covenant on Civil and Political Rights. The publication of this comprehensive and ambitious work professes to mark something of ‘a coming of age’ in our understanding of economic, social and cultural right. The detailed assembly of primary materials, together with commentary, case extracts and contextual discussion no doubt meets this ambitious objective.

Structured in a way that makes it a good counterpoint to Sarah Joseph and Melissa Castan’s comprehensive publication on civil and political rights, the book provides an article-by-article analysis of the Covenant after only the briefest of introductions. As such it is an ideal reference for practitioners and scholars who are well-versed in the history and practice of human rights law generally, but who require access to detailed commentary in relation to individual rights enshrined in the Covenant.

Having cause to delve into the chapter on the ‘Right to Health’, I discovered a very readable narrative in relation to the drafting history of Article 12, the conceptual debates that have arisen in that context and the tensions inherent in applying the right to health in the context of the broader field of human rights (for example, the tensions between reconciling public health initiatives with the rights of individuals in relation to health and autonomy). The chapter explores the socio-economic contexts which impact on the realisation of the right to health as well as the general nature of the obligation imposed upon states, including in relation to the international obligations of states. The chapter also contains useful commentary in relation to the extra-territorial obligations of states to persons within their jurisdiction but outside of their territory as well as persons affected by the acts of corporations regulated by the state in question. In exploring these legal technicalities, the authors are clearly mindful of the contemporary context of extreme and growing global inequality as well as questionable state practices in this area. Clearly the current era of economic globalisation demands and enables international cooperation to ensure the universal enjoyment of these important rights. At the same time, the foreign aid budgets of wealthy states are not keeping up and many states attempt to avoid their human rights obligations through artificial constructs and by reference to narrow ideas of territory and jurisdiction. 

The publication of the book is also particularly timely considering that the Optional Protocol to the Covenant entered into effect only three years ago and is still in its infancy as a potential avenue for those suffering serious violations of economic, social and cultural rights. The Optional Protocol establishes three new procedures for the protection and enforcement of rights under the Covenant, namely an individual complaints procedure, an inter-state complaints procedure and an inquiry procedure that may be engaged when ‘reliable information indicating grave or systematic violations’ is received by the United Nations Committee on Economic, Social and Cultural Rights. As practitioners prepare and respond to complaints and inquiries under these new procedures, they will have access to a detailed commentary which provides historical context, interpretative guidance, jurisprudence and scholarly discussion in relation to all of the substantive rights enshrined in the Covenant.

Saul, Kinley and Mowbray’s book is a welcome addition to the library of any human rights practitioner and will no doubt become a dog-eared favourite in the years ahead.

Lisa Button - former HRLC volunteer lawyer and now asylum seeker and refugee policy and advocacy advisor at Save the Children Australia.

 

Out of home care and child abuse

The article below was written for the special 2016 Children Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons and the Human Rights Law Centre.

DISCLAIMER: Please note that material in this Bulletin (Material) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons, NCYLC or the HLRC or the views of King & Wood Mallesons’ clients.


The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) has uncovered a host of deficiencies in the way that public and private Australian institutions have responded to child sexual abuse. Victims of child abuse face an increased risk of drug addiction, homelessness, mental and physical health issues, educational disadvantage and unemployment. These often lifelong implications make it an issue requiring constant reconsideration to ensure the chance of its occurrence is minimised. One area where child abuse can occur is out of home care (OOHC), such as when a child is placed with a foster family. Child abuse in OOHC can be perpetrated by adult carers, other adults in or outside the household, or other children in or outside the household.  This article will consider the specific phenomenon of child-to-child sexual abuse (that is, sexual abuse of children perpetrated by other children) in OOHC and will examine its incidence, prevention and institutional responses to it.

OOHC covers a significant range of services, including residential care, family group homes, home-based care (relative/kinship care, foster care and other home-based OOHC) and independent living arrangements. OOHC is provided both by State Governments and by non-government organisations (NGOs). Children may enter OOHC when the children’s parents are unable to care for them, which may be for any number of reasons: mental or physical health problems, drug addiction, or a history of abuse in the home. Child-to-child abuse represents a growing problem in OOHC and was in urgent need of attention when the Commission commenced its investigation in 2013. One of the first obstacles faced by the Commission was the absence of consistent and reliable data collection and record-keeping, as they criticised the inability of some states to produce records for requested periods and the differing methods used by states when “counting” incidents. The UN Committee on the Rights of the Child reached the same conclusion earlier in their 2012 report on Australia after noticing that despite the growing number of children placed in OOHC, data on placements, abuse in care, and complaints was sparse. State governments are ultimately responsible for children in OOHC, though they may outsource the provision of OOHC to NGOs, and State governments do not publish data on the number of children who are sexually abused while in OOHC.  It was the Committee’s recommendation that data collection mechanisms be improved – yet it appears that systemic deficiencies remain.

The Commission acknowledged the extreme difficulty they consequently faced in accurately assessing the prevalence of child-to-child abuse and holding governments and service providers accountable for abuse suffered by children in OOHC. Counsel assisting the Commission, Gail Furness SC, initially asserted that that child-to-child abuse represented the “vast majority of observed sexual abuse cases in out-of-home care” according to US research. However this was strongly refuted by victim advocacy group CLAN, with Vice-President Frank Golding arguing that “care leavers…know that’s not true”. The scoping review commissioned by the Royal Commission has since been amended, acknowledging that the use of the word ‘majority’ was an error and that “its prevalence has not yet been established”. The review now reflects that child-to-child abuse occurs at “substantial levels”. Studies in 1995 and 2000 indicate that around 1 in 3 sexual offenders in Australian society broadly are juveniles (mostly adolescents, although 7% of sexual abuse is perpetrated by youth under the age of 12).Statistics from state police in 2003-2005 suggest that youth perpetrate 9-16% of all sexual abuse. According to Bernie Geary, former Victorian Principal Commissioner for Children and Young People, 31% of sexual abuse in residential care in Victoria can be characterised as child-to-child abuse.

In Australia, the number of children placed in OOHC arrangements has risen threefold between 1990 and 2010, to 36,000. Those numbers have tended to increase each year since. Almost half of all foster-carers have multiple children placed in their care. It was hoped the investigation conducted by the Commission would uncover the factors contributing to the incidence of child-to-child abuse and elicit possible solutions to these problematic statistics. Several factors contributing to rates of child-to-child abuse in OOHC were identified during the Commission’s public hearing, although not all of these will be discussed in this article.

The Commission heard that foster-care providers are making poor decisions in the placement of children, resulting in risky combinations of children with varying needs placed under one roof.The placement process has been characterised by a chronic shortage of carers, coupled with a focus by the providers on the availability of beds, to the detriment of young people requiring safe OOHC. In particular, submissions highlighted that emergency or last-minute placements often result in the absence of proper and detailed assessment of the needs of children being introduced into the home and those already residing there.Emergency placements also often occur before the completion of background checks, with children usually placed in informal kinship care arrangements often without the same level of scrutiny as other forms of placements.

This approach to emergency care disregards the commitment made by the Australian government in ratifying the UN Convention on the Rights of the Child including the right to protection from sexual abuse and the right of children to be looked after properly by people who respect them. Article 19 further mandates that governments institute effective “social programmes to provide necessary support for the child and for [carers]” and the incidence of child sexual abuse in Australia reflects significant deficiencies in the national child protection system.

The Commission also heard that state government departments and other agencies are providing insufficient background information to foster care providers to enable them to properly assess risks. These omissions occur when state governments outsource the provision of OOHC, and children and carers are transferred from one provider to another, where the new providers are not given important case histories. Submissions highlighted the failure to provide information on a young person’s history of sexual behaviours was a recurring feature of child-to-child abuse incidents and one that could be easily avoided. This was confirmed by research conducted by the Commission.Beverley Orr, President of the Australian Foster Carers Association criticised these inadequacies, noting that withholding information about previous sexual abuse is unfair to both the carer and child and prevents the carer discharging their duty of care to keep all children in their home safe.

Not only are carers often seemingly ill-informed about the history of trauma and possible problem sexual behaviour of children in their care, but the Commission heard most caseworkers receive only limited training on how to identify signs of child-to-child sexual abuse. Training usually comprises of a three-day program called ‘Shared Stories, Shared Lives’ and includes a component on sexual abuse. Furthermore, no states or territories require that their carers possess a minimum level of qualification. The training of staff and carers is a critical step in the prevention of child-to-child sexual abuse. This training and support should arguably include equipping caregivers with skills required to identify and respond to “problem” sexual behaviours. Despite this, many governments and service providers acknowledged it as an area requiring significant improvement and training of this nature is not mandatory for carers in several states.  An understanding of age-appropriate or “developmentally-expected” behaviour may enable caregivers to recognise inappropriate behaviours before they culminate in child-to-child sexual abuse.  These concerns were echoed in a Consultation Paper into child abuse in out of home care released by the Royal Commission in early March 2016 (OOHC Consultation Paper).

Ideas were canvassed over the course of the public hearing on methods for eliminating the occurrence of child-to-child sexual abuse in OOHC. As well as improvements in information-exchange and carer training, carer advocates called for further funding to enable better services to be provided to those children who exhibit problem sexual behaviours. The OOHC Consultation Paper also drew attention to the inability of current treatment programs for children exhibiting sexually-problematic behaviours to meet demand within the community. Further to this, the Paper noted that not all programs currently operating are adequately prepared to deal with the particular perspectives of children from an ATSI background, a migrant background, or children who have a disability. Regional areas in particular require further funding and attention to ensure that child victims who go on to display problematic behaviours receive support in a timely manner. Dr Joe Tucci, CEO of the Australian Childhood Foundation highlighted the injustice in the “geographical bingo” which currently determines whether a child will receive a therapeutic response that meets their needs.

In line with this was the suggestion that all children in OOHC should have access to an independent body to whom they can discuss trauma and disclose abuse. This establishment of this external agency would likely require further government funding to ensure children in OOHC in all metropolitan and regional areas receive access to a third party who provides support to them throughout their placements and movements over time. Such a body would, of course, have limitations. Child abuse victims, especially the younger children, would likely have difficulty reporting abuse to this independent body, who would generally be unknown to them. It is therefore crucial for children in OOHC to develop more secure, long-term relationships with their caseworkers as well, to build trust and provide a reliable channel to engage with any independent body.

The importance of surrounding the child with dependable relationships in which they feel comfortable to disclose abuse is crucial to addressing the needs of a child victim, and may ultimately prevent them going on to abuse another child in care. In order to strengthen the relationships which surround the child in OOHC, Dr Tucci further suggested that OOHC providers be funded on longer-term contracts to eliminate the need for casual staff and ensure children have continuity of support and can build trust. He went on to highlight the need for children to have “consistent, high-quality pool of carers around them who have been caring for a period of time” – an outcome that becomes less achievable with a casual workforce trained to care for only a short period.

Further improvements also needed to be made in terms of providing follow-up support to child victims. Governments and service providers were unable to satisfactorily describe the support offered to child victims following sexual abuse in OOHC, once again due to poor data recording. Tasmania (one of the few states with available records) acknowledged that roughly 20% of children were offered counselling after experiencing sexual abuse, which represents a contravention of Article 39 of the UN Convention on the Rights of the Child. In its report on residential care services provided in Victoria, the Commission for Children and Young People noted that many children received inadequate care following abuse. A lack of recognition of the event, failure to report incidents to the police, poor counselling support and an absence of compensation for the child victim were all identified as issues in the Victorian context, and most likely reflect concerns in all States and Territories.

Currently three Australian jurisdictions have specialist therapeutic treatment services for children who exhibit sexually harmful behaviours, designed to prevent recidivism:

New South Wales: New Street Adolescent Services
Provides a coordinated response to children aged 10-17 who have sexually harmed others. The program involves the family members of the children. It is located in a select number of metro Sydney areas and some rural areas in NSW. It has a more limited capacity and geographical reach than the Victorian programs.

Victoria: Sexually Abusive Behaviour Treatment Services
Incorporates 12 funded services in every region of Victoria, ensuring that the program has a broad and consistent capability across the state. In Victoria, Therapeutic Treatment Orders (TTOs) are engaged for children aged 10 – 14 years who have exhibited sexually abusive behaviour. The Services treat children who have received TTOs as well as children who voluntarily engage with the Services (including children under 10, and up to 18).

Queensland: Griffith Youth Forensic Service
Has limited capacity and geographical reach compared to Victoria.

Other jurisdictions treat child-to-child sexual abuse through generalist counselling services. While some programs are rolled out in the context of a criminal punishment, others are voluntary in nature, whereby a child (and/or their family/carer) will opt for treatment if their behaviour has been flagged. This encompasses children under 10 who are too young to be considered criminally responsible.

Generalist programs in states without specialist services may not have sufficient skill to respond adequately to such children and their families. The expertise required to effectively reduce recidivism is a fairly unique skill set, and without appropriate support, carers are forced to shoulder the majority of the burden of caring for children in this situation. According to the OOHC Consultation Paper “this can contribute to the breakdown of the placement”. Furthermore, not all programs are adequately prepared to deal with the particular perspectives of children from an ATSI background, a migrant background, or children who have a disability.

The consistent failure of Australian governments and service providers to record and respond to the incidence of child-to-child sexual abuse has resulted in significant levels of child-to-child sexual abuse in OOHC. This also represents a failure to abide by our central obligation under the UN Convention on the Rights of the Child, encapsulated in Article 3, which implores organisations concerned with children to work towards their best interests.  It is hoped that the implementation of some of the measures discussed throughout the public hearing will ultimately see improvements in the rate of child-to-child abuse in OOHC and produce more positive outcomes for the thousands of children placed in child protection arrangements every year. The Royal Commission is expected to release a report into child sexual abuse in OOHC in early 2016 based on the evidence tendered at their public hearing into OOHC. It is hoped that this report will continue to fuel improvements in the improvement of training and services for both children and carers and the placement of children in the nurturing environment they are entitled to as a child. 

As a first step to rectifying some of the problems in this area, State governments should commit to publishing annual data on the reports of sexual abuse in OOHC, and how those reports have been responded to.  OOHC providers should also ensure they are provided with full background information on all their contracted carers and children before implementing any care arrangements to ensure that they are able to make informed decisions about where vulnerable children should be placed.

Meena Mariadassou and Georgia Feltis, Summer Clerks, King & Wood Mallesons.

Doing Time – Time for Doing, five years on

The article below was written for the special 2016 Children Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons and the Human Rights Law Centre.

DISCLAIMER: Please note that material in this Bulletin (Material) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons, NCYLC or the HLRC or the views of King & Wood Mallesons’ clients.


The Doing Time - Time for Doing Report (‘the Report’), released by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in 2011, provided 40 recommendations aimed at reducing the prison rates of young Indigenous people. Since the release of the report, the ratio of Indigenous to non-Indigenous youth imprisonment has continued to improve at an extremely slow rate, with little change from the previous decade. While Indigenous youth were 28 times more likely to be in detention in 2011, in 2013-14 they were still 26 times more likely to be in detention than their non-Indigenous counterparts. This slow rate of improvement is due to a lack of implementation of the 40 recommendations in the Report.

Under the broad themes of justice reinvestment and Indigenous-led solutions, the Report called for a range of reforms, coordinated at a national level. The recommendations were targeted at addressing the inequalities leading to the commission of crimes, sentencing, and outcomes to reduce recidivism. It was recommended that the Federal Government increase funding to support community programs, Indigenous health initiatives, education, workplace participation, and access to justice. The Report also recommended that the Federal Attorney General work with state and territory counterparts to develop state-based solutions for imprisonment rates of young Indigenous people.

Australia faces ongoing criticism from bodies such as the UN Committee on the Rights of the Child and the UN Committee Against Torture for the severe over-representation of Indigenous people, particularly young people, in prisons. With 2016 being the fifth anniversary of the release of the Report, this article discusses the progress that has been made in reducing imprisonment of young Indigenous people, and the continuing major gaps in implementation.

Areas of positive development

There have been some key areas of positive implementation by the Federal Government, mostly involving funding for general Indigenous health and education programs. The most successful programs are those that specifically target children. This article will focus on two examples of successful implementation.

Alice Springs Youth Drug Rehabilitation Services

Recommendation 8 of Doing Time - Time for Doing recommended that the Commonwealth Government, in collaboration with state and territory governments, increase funding for locally based alcohol, anti-smoking and substance abuse programs. This recommendation is based on early intervention on Indigenous health as a key strategy in closing the gap on outcomes in health and reducing the rate of Indigenous youth imprisonment. This recommendation reflects the obligations and standards contained in the UN Convention on the Rights of the Child (‘Convention’), specifically Article 24(1):

States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

On 16 September 2015, the Minister for Indigenous Affairs, Nigel Scullion, announced funding for Alice Springs youth drug rehabilitation services. This funds Bushmob Incorporated, an organisation based in Alice Springs to provide enhanced access to clinical services for young people aged 12-25 years suffering substance abuse. $1.5 million over three years funds the continuing operation of 20 beds at the Bushmob Youth rehabilitation centre. The centre also has a full time doctor and psychiatrist, and runs outdoor activities such as a bush camp, horse program and sport. In addition to the $1.5 million, over $300,000 supports the media room, which promotes literacy and education with clients, by providing access to computers, graphics and music for the youth as they undergo treatment.

This funding is welcomed, particularly as the centre incorporates a multi-disciplinary approach in addressing holistic health, education and sporting arrangements for youth. While this funding does help improve Indigenous youth health and rates of imprisonment, a longer-term investment and a program specifically for Indigenous young people is required in conjunction with a health program for Indigenous youth who enter the criminal justice system (recommendation 15 of the Report). While it is unclear whether this scheme was implemented as a direct result of the Report, it is welcomed. More initiatives such as this need to be supported by federal, state and territory governments to ensure implementation of the Report’s key recommendations.

Remote School Attendance Strategy (RSAS)

As Robert Somerville of the WA Department of Education told the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in January 2011, “With regard to education, there is no doubt that there is an absolute correlation between a child failing at school and a child entering the justice system” (see Committee Hansard, Sydney, 28 January 2011, p. 77). The Report recommends that the Commonwealth Government provide funds and administrative assistance to establish and expand school attendance incentive programs across Indigenous communities. This is consistent with Article 28(1)(e) of the Convention on the Rights of the Child:

States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: …take measures to encourage regular attendance at schools and the reduction of drop-out rates.

In 2014, the RSAS was established by the Federal Government, appointing school attendance officers to ensure all children, particularly in remote communities, attend school every day. RSAS has been implemented in Queensland, Western Australia, South Australia, New South Wales, and the Northern Territory. The strategies in each state and territory are driven by the community to suit local needs. Local teams consist of appointed officers and members of the community who work together to provide practical assistance, such as:

  • educating children and families about the importance of regular school attendance;
  • providing practical support, such as driving children to school or helping to organise school lunches, uniforms, homework and after-school care; and
  • working with the school to monitor attendance and follow up on student absences.

On 25 September 2015, the Minister for Indigenous Affairs, Nigel Scullion, announced that the RSAS will be extended for another three years. The Federal Government has invested $80 million to support the program, which is currently operating in 73 schools across 69 remote Indigenous communities. This program is praised by some, but has also been criticised for its ‘top down’ and punitive approach that does not engage with and support local communities and the underlying reasons why students do not attend school.

Key gaps in implementation

Despite the UN Committee on the Rights of the Child stating in 2012 that Australia’s youth justice system ‘requires substantial reforms for it to conform to international standards’, implementation of the Report continues to progress slowly. The focus of lawmaking continues to be on top-down funding efforts, rather than the community-led initiatives which were at the heart of the Report. Particularly at a state level, legislation continues to be introduced which is specifically contrary to the Report’s recommendations.

Youth Sentencing Framework (Recommendations 27-32)

The Report canvassed a range of problems with Australia’s youth sentencing culture, stemming from the failure of the ‘tough on crime’ approach to reduce recidivism. While it was recommended that the Australian Institute of Criminology study sentencing options for Indigenous youth, and the Attorney-General explore alternative sentencing options, these recommendations have not yet resulted in concrete change.

Across Australia, states and territories continue to impose criminal responsibility on children from 10 years of age, despite consensus from the Committee on the Rights of the Child that 12 is the acceptable minimum age of criminal responsibility.

Specifically in WA, contrary to recommendations from the Committee on the Rights of the Child and the Committee Against Torture, the Western Australian Criminal Code Act 1913 (WA) continues to impose mandatory minimum sentences on some young offenders. Rather than scaling back mandatory sentencing, the range of offences for which a mandatory sentence will be imposed was increased in late 2015, with the passage of the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA).

In order to properly implement the Report, states and territories need to abolish sentencing laws, such as mandatory sentencing, which remove the ability of judges to take into account the particular circumstances of each case.

Funding a national approach to reducing imprisonment (Recommendations 2, 24-6, 39-40)

Longstanding calls for further funding toward Indigenous initiatives have been met with only intermittent support, and where funding has manifested, it has often taken the form of a top-down approach, imposed on local communities, rather than led by them. From 2000-1 to 2010-11, combined real funding per person for the Aboriginal and Torres Strait Islander Legal Services (ATSILS) and Family Violence Prevention Legal Centres (FVPLS) had declined by 20 percent. Following the publication of the Report, and a recommendation of an immediate $200 million annual injection from the Productivity Commission in 2014, these bodies are yet to receive guaranteed long term funding approaching this recommendation.

While funding is crucial for increasing Indigenous access to justice, the real thrust of the Report was to support community-led early intervention to reduce initial contact with the legal system. These initiatives require local expertise, national cooperation, and sustained commitment to real change, rather than just funds. The thrust of these recommendations have been reiterated in recent reports and campaigns, including the Change the Record campaign and Amnesty International’s ‘Community is Everything’ campaign.

Conclusion

Regrettably, the Federal Government has taken limited steps to support local solutions to youth incarceration. Programs which are community-led and created in close collaboration with local members of Indigenous communities appear to be particularly effective. However, despite some instances of success, the majority of recommendations in the Report have not been fully implemented, raising concerns with many of Australia’s obligations under the Conventions on the Rights of the Child.

Amelia Achterstraat and Jordan Gifford-Moore, Summer Clerks, King & Wood Mallesons.

Children and consumer product safety: Current regime and scope for reform

The article below was written for the special 2016 Children Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons and the Human Rights Law Centre.

DISCLAIMER: Please note that material in this Bulletin (Material) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons, NCYLC or the HLRC or the views of King & Wood Mallesons’ clients.

 

In 2014, the Australian Institute for Health and Welfare reported that from 2011 to 2012 over 130,000 children were hospitalised for injuries. Common causes of injury included falls, burns or the ingestion of foreign objects. Such injuries are frequently associated with consumer products, such as trampolines, cots and polystyrene beads. The high incidence of child injuries, and the link with consumer product safety, calls for a consideration of product safety regulation and how it promotes and upholds child rights.  In particular, it raises a question about the extent to which Australia is upholding the fundamental right of children to life, survival and development as provided for under Article 6 of the Convention on the Rights of the Child (Convention).

This article considers these issues from the perspective of children as consumers and the product-related injuries affecting them. It analyses the consumer product safety regime in place under Australian domestic law, as set out in Part 3-3 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), to assess whether it goes far enough in relation to children and to identify possible areas for reform.

The ACL is set to be reviewed this year and product safety has been flagged by Rod Sims, Chairman of the Australian Competition and Consumer Commission (ACCC), as a key area for review. We hope that in addition to addressing the product safety protections afforded to consumers generally, this review will specifically consider and strengthen the protections afforded to children who represent one of the most vulnerable consumer groups.

The current consumer product safety regime and areas for reform

There are three key tenets of the consumer product safety regime under the ACL – safety standards, bans and recalls. The operation of each of these and their applicability to children is considered below, along with suggestions of possible areas for reform.

Safety standards

Under the ACL, the Commonwealth Minister who administers Part XI of the Competition and Consumer Act 2010 (Cth) (Commonwealth Minister) has power to impose mandatory safety standards (mandatory standards). These standards may be made for consumer goods of a particular kind and can regulate aspects such as the design, method of manufacture, or packaging of goods. Mandatory standards specify the minimum requirements of particular goods in order for them to be safe. If a supplier supplies, manufactures, possesses or has control of consumer goods that do not comply with mandatory safety standards, they may face penalties.At the time of writing, mandatory standards exist for 41 types of consumer goods. Nineteen of these goods relate to children’s items, which include prams and strollers, children’s nightwear and baby dummies.

In addition to mandatory standards, the ACL provides a consumer guarantee that goods will be safe, and independent bodies such as Standards Australia (the national peak non-government standards organisation) formulate voluntary standards for particular categories of goods.

The current safety standards are somewhat limited in their operation. Consumer goods that do not fall under the purview of the mandatory standards may pose a risk to children, as suppliers have little legal incentive to incorporate safety standards into the design, manufacture process or labelling of the goods. Voluntary standards may go some way to address this, but they are not a legal requirement and are complied with at the discretion of the supplier. In the absence of clear, approved standards, a considerable burden is placed upon parents and child consumers themselves to ‘buy safe’.

The safety standards provisions in the ACL could be improved by implementing a general safety requirement mirroring the European Union General Product Safety Directive (GPSD) 2001/95/EC (Directive). The Directive provides a generic definition of a ‘safe product’ applicable to all member States and obliges all producers to place safe products on the market. The Directive is complementary to specific safety requirements. It applies in its entirety to products that aren’t covered by specific standards, and applies partially to those that are.

Implementing similar legislation in Australia would fill the gaps between the existing mandatory standards for particular products and all other products by providing a general definition of a ‘safe product’. As in the European Union, suppliers would be legally required to comply with minimum safety requirements for all products, prior to supplying goods for sale.

The Directive also requires producers and distributors to report to national authorities when goods fall short of the general safety definition. This applies to products that pose a serious risk in addition to those that pose a moderate/low risk. Introducing similar provisions into the ACL, requiring suppliers to report safety-related concerns for all injuries (not just serious injuries), could address concerns about the limited scope of current reporting requirements which only obliges suppliers of consumer goods to report deaths or serious injury/illness related to those goods. As Associate Professor Kirsten Vallmuur identified in a presentation given at the Rights of the Child Consumer conference in Sydney on 20 November 2015, the resulting lack of data on primary care representations, injuries not requiring treatment at a health facility and near miss injuries is one of the key problems in the Australian product safety regime. The imposition of broader reporting requirements and more proactive investigation by authorities through information-sharing with other jurisdictions could ensure that Australia develops a comprehensive database of injuries, thereby enabling quick responsive action.

Bans

The ACL provides for two types of product bans. Both the Commonwealth Minister and responsible State and Territory ministers, such as the NSW Fair Trading Minister, are able to impose a 60 day interim ban on products (which may be extended).The Commonwealth Minister may also impose permanent bans on products. Once a ban is made, it is an offence to supply, manufacture, possess or have control over the banned goods. Just over 20 products are currently subject to a permanent ban in Australia, almost half of which are directed at children. The review of the ACL should consider whether bans could be used more frequently to prevent product-related injuries, particularly for children.

Recalls

Recall measures are more frequently used than bans to limit the supply of unsafe goods in Australia. Under the ACL, a product may be recalled if it appears that it may cause injury to any person. The Commonwealth Minister and responsible State and Territory ministers may publish a compulsory recall notice on the internet for consumer goods of a particular kind where it becomes apparent that a product presents a safety risk or is non-compliant with a mandatory standard or ban. However, most recalls are made voluntarily by suppliers and then communicated to the Commonwealth Minister. If a recall notice is in force, the consumer goods to which is relates must not be supplied in trade or commerce. Since 2010, the ACCC has reported a steady increase in the number of recalls in Australia, with a 14 per cent increase seen from 2013 to 2014.

One of the main difficulties with recalls is ensuring consumer compliance. On average, only half of all recalled goods are returned. For toys, this figure is less than one in five. There is clearly room for the recall regime to be improved.  Three additional measures which could be considered in the upcoming review of the ACL are:

  • First, establishing a “Recall Registry” which allows purchasers to leave their contact details at the time of purchasing particular goods such as toys. This would enable the relevant authority to directly contact consumers who are in possession of recalled items.
  • Second, further promoting existing initiatives such as the Recalls Australia smart phone application, which notifies users of newly recalled items and allows consumers to report products they think are unsafe.
  • Third, using information drawn from other jurisdictions, such as the European Union and the United States of America, to issue recall notices for products of concern before they lead to injuries or even deaths in Australia.

Conclusion

The significant number of recalls for consumer goods and frequent instances of child death or injury linked to consumer products indicates that not enough is being done to prevent unsafe goods from reaching vulnerable consumers. This article has considered the three key aspects of the ACL’s consumer product safety provisions – safety standards, bans and the recall process – which, if strengthened could assist with preventing product-related death or injury of children. In turn, this would assist with the fulfilment of Australia’s obligations under the Convention. The upcoming review of the ACL is an opportune time to reconsider the role of suppliers and Australian government authorities in the protection of child safety.

Hannah Lippmann and Sarah Rodrigues, Summer Clerk and Law Graduate, King & Wood Mallesons.