Elizabeth O’Shea, a lawyer practising in the area of human rights and social justice, outlines what would be her first urgent steps towards a just and secure society and looks at how the task politically involves a combination of listening and leadership.Read More
On 28 November 2011, ahead of the 50th anniversary of the first raising of the West Papuan ‘Morning Star’ flag, the Human Rights Law Centre and Human Rights Watch called on Minister Rudd to publically and unequivocally condemn the excessive use of force and suppression of peaceful protest and also deploy Australian embassy staff to Papua to monitor and observe anticipated events to mark the anniversary. In joint letter to the Foreign Minister, the Hon Kevin Rudd MP, the two leading human rights organizations said the Australian Government should take a leadership role in promoting and protecting human rights in the troubled Indonesian province of West Papua.
Also see, the related media release: Australia must act to protect human rights in Papua: Joint letter from HRLC and Human Rights Watch
The Human Rights Law Centre has made a submission to the Productivity Commission calling for reform of Australia’s Export Finance and Insurance Corporation ('EFIC') to better promote and protect human rights. EFIC is the Australian Government provider of export credits, insurance, reinsurance, and other financial services that support Australian exports and overseas investments.
Like most export credit agencies globally, EFIC assists exporters and private providers of insurance and finance products in circumstances where the private sector is unwilling or unable to provide support.
The role of ECAs has expanded considerably due to globalisation and the exponential growth of global markets. In particular, ECAs play a significant role as providers of finance in the developing world. ECAs may offer loans to developing countries on the condition that they buy the exports of the lending country, or they may provide guarantees or insurance for the loans made by commercial banks or exporters to developing countries.
Given the importance of ECAs in the global economy and their role in supporting corporate activity in developing countries, ECAs are in a unique position to promote human rights compliance in projects seeking ECA support. However, EFIC and other ECAs have a poor history of incorporating human rights compliance mechanisms into their operations. As a result, EFIC and other ECAs have facilitated corporate activity that has been associated with significant adverse human rights impacts.
For example, ECA-backed projects have been associated with forced displacement of local populations, poor conditions of work, suppression of peaceful protests and the rights to freedom of expression and association, exposure to environmental contaminants and the destruction of cultural sites.
The HRLC submission considers EFIC’s international human rights obligations and concludes that EFIC’s current policies and operations do not comply with its obligation to protect human rights as established under the framework set out by the UN Special Representative on Business and Human Rights, Professor John Ruggie.
The HRLC recommends that EFIC’s policies should:
- require that EFIC undertake adequate human rights due diligence;
- require due diligence by EFIC’s client companies; and
- state that EFIC will not support activities that are likely to cause or contribute to human rights abuses.
The implementation of these policies, in conjunction with appropriate transparency requirements and grievance mechanisms, would be a significant step towards the implementation of EFIC’s international human rights obligations.
The UN Special Rapporteur on Trafficking in Persons, especially in women and children, is scheduled to undertake a country mission to Australia in November 2011.
In preparation for that mission, and at the request of the UN Office of the High Commissioner for Human Rights, the Human Rights Law Centre and Anti-Slavery Australia (Jennifer Burn) prepared a major Briefing Paper to the Special Rapporteur. Mallesons Stephen Jaques provided substantial pro bono research assistance in preparing the paper.
The Briefing Paper provides an overview of trafficking in persons in Australia, including:
- the main forms and manifestations of human trafficking;
- existing or planned laws, policies and plans of action to address trafficking in persons;
- existing or planned bilateral or multilateral agreements to address trafficking;
- support services for victims of trafficking; and
- priorities for reform.
In the view of both the HRLC and Anti-Slavery Australia, the most effective way to address human trafficking and severe exploitation is to “incorporate a human-rights based approach into measures taken to prevent and end trafficking in persons and to protect, assist and provide access to adequate redress to victims, including the possibility of obtaining compensation from the perpetrators”. From a human rights perspective, we have identified the following priorities for reform:
- reviewing Australia’s anti-trafficking laws to ensure compliance with Australia’s international obligations including obligations to prohibit forced labour and practices similar to slavery;
- investing in research to strengthen our understanding of emerging issues such as forced marriage, child trafficking and organ removal;
- consulting with community stakeholders to develop legal and policy initiatives to respond to the emerging issue of forced marriage, including multilingual guidelines for government agencies and NGOs working with people who have experienced forced marriage;
- strengthening pathways to effective remedies for trafficked people by building effective networks and referral protocol between support services and pro bono lawyers representing clients in compensation matters;
- facilitating and supporting family reunion between trafficked people and dependent children;
- improving victim support by ensuring all trafficked people have appropriate access to safe and sustainable housing;
- developing protocol and guidelines for government agencies and support services working with child victims of trafficking to ensure the protection of human rights;
- improving coordination between federal and state government agencies to ensure a coordinated and efficient response to trafficking;
- developing a publicly available resource on accommodation options for trafficked people, which provides information and guidance on the provision of housing to trafficked people; and
- developing multilingual information and resources for all people entering Australia and for communities identified as most vulnerable to trafficking.
The HRLC has made a Submission to the Senate Legal and Constitutional Affairs Committee regarding the Deterring People Smuggling Bill 2011. The Deterring People Smuggling Bill 2011 was introduced into Parliament on 1 November 2011. On 3 November 2011 the Senate referred the Bill for inquiry and report.
The Bill amends the people smuggling offences in the Migration Act 1958.
Existing sections 233A and 233C of the Migration Act establish a primary people smuggling offence and an aggravated people smuggling offence. Both of these offences are established inter alia where another person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry to Australia, of another person that is a non-citizen, and that non-citizen had, or has, no lawful right to come to Australia.
The Bill retrospectively defines “no lawful right to come to Australia” contained in the people smuggling offences to mean no lawful right under domestic law to come to Australia. This is notwistanding that a person may have a clear and lawful right under international law to come to Australia.
The HRLC Submission to the Senate Legal and Constitutional Affairs Committee focuses on the human rights implications of the Bill.
In particular, the HRLC has identified the following concerns:
- the Bill contravenes the prohibition on retrospective criminal laws contained in article 15 of the International Covenant on Civil and Political and Political Rights, Australian common law and Government guidelines;
- the mandatory sentence of 5 years with a 3 year non-parole period that flows from the offence of aggravated people smuggling contravenes the prohibition on arbitrary detention (article 9 of the ICCPR) and the right to a fair trial (article 14 of the ICCPR); and
- the Bill violates Australia’s obligation to act in “good faith” by seeking to indirectly avoid its obligations under the Convention Relating to the Status of Refugees.
In essence and effect, the Bill toughens an already draconian regime which threatens to see hundreds of impoverished Indonesian fishermen and boys jailed for a minimum of 3 years. This regime violates human rights, threatens the rule of law, costs taxpayers tens of millions of dollars in legal fees and detention costs and is likely to have no impact on people smuggling. The HRLC recommends that the Committee call for the Bill to be rejected.
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A Human Rights Law Centre submission to the Independent National Security Legislation Monitor has called for comprehensive reform of Australia’s counter-terrorism laws and measures to enhance their effectiveness and to better respect and protect fundamental human rights. The Monitor was appointed under the Independent National Security Legislation Monitor Act 2010 (Cth) and is empowered to review and report on Australia’s counter-terrorism and national security legislation, including its compliance with Australia’s international human rights obligations.
The HRLC submission identifies a range of provisions which require reform to ensure compatibility with human rights, including those relating to:
- the definition of “terrorist act”;
- control orders;
- preventative detention;
- ASIO detention powers;
- the listing of “terrorist organisations”; and
- offences relating to association with a terrorist organisation.
The HRLC submission also identifies that the onus is on the government to keep Australia’s counter-terrorism laws and measures under continual review so as to ensure that any infringement of human rights is demonstrably justified, remains strictly necessary, and is reasonable and proportionate.
A coalition of leading human rights NGOs, coordinated by the Human Rights Law Centre, the Mental Disability Advocacy Center and the Open Society Justice Initiative, has prepared a major statement for the UN Office of the High Commissioner for Human Rights on strengthening access to remedies for violations of international human rights. The Joint NGO Statement sets out a range of concrete recommendations to strengthen the individual complaints mechanisms of UN human rights bodies so as to:
- enhance the promotion, protection and fulfilment of human rights;
- assist States to properly understand and discharge their human rights obligations;
- contribute to the accountability of perpetrators of human rights violations; and
- secure access to effective remedies for victims of human rights violations.
The Joint NGO Statement has been prepared as a key input to the process of reform to strengthen the UN human rights treaty bodies initiated by the UN High Commissioner for Human Rights in 2009. The strengthening process is intended to make the work of treaty bodies more coordinated and effective and to enhance the fulfilment of human rights on the ground. The High Commissioner has invited inputs and proposals from states, NGOs, human rights experts and NHRIs in this regard.
The HRLC's work coordinating the Joint NGO Statement on Strengthening Individual Communication Procedures builds on our work contributing to the Pretoria Statement of June 2011, another joint NGO paper which contains over 60 concrete and practical recommendations to improve the work of human rights bodies at the international level and the fulfilment of human rights on the ground.
The HRLC has made a Submission to the Expert Panel on the recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution. A national conversation about possible constitutional recognition presents an opportunity to strengthen the recognition, protection and promotion of the human rights of Aboriginal and Torres Strait Islander peoples in Australia. In its submission to the Expert Panel, the HRLC:
- outlines Australia’s international human rights obligations and highlights relevant recommendations that have been made by United Nations human rights bodies regarding the need for constitutional reform in Australia; and
- provides an overview of relevant human rights obligations and principles that should guide the meaningful participation of, and consultation with, Aboriginal and Torres Strait Islander peoples in the process of considering constitutional recognition.
Further information about the process to consider recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution is available at www.youmeunity.org.au.
The Human Rights Law Centre has made a submission on proposed Victorian laws that would require adults who have custody or care for a child to take action if they believe the child is being abused (‘failure to protect laws’). The HRLC is concerned about the impact of the proposed laws on women and children experiencing family violence and considers that they would constitute unjustifiable limitations on human rights contained in the Charter of Human Rights and Responsibilities Act 2006. Child abuse is a critical issue that must be addressed as a matter of urgency and priority. However, measures to address child abuse should be appropriately adapted to achieve this aim and should not punish women who are themselves victims of violence.
The submission is available here.
On 21 April 2010, the Federal Government launched ‘Australia’s Human Rights Framework’, setting out a number of measures the Government intends to take to protect and promote human rights in Australia, including the commitment to develop a new National Human Rights Action Plan which is intended to “outline future action for the promotion and protection of human rights”. On 8 July 2011, the Attorney-General released a Draft Baseline Study for comment as the first step towards implementing a National Human Rights Action Plan. To be effective, a Baseline Study must provide a comprehensive and frank appraisal about the state of human rights in Australia. This is because the issues identified in the Baseline Study form the basis for future government action under the National Action Plan and also for the development of government practices beyond the National Action Plan.
On 9 September 2011, the Human Rights Law Centre made a major submission on the draft Baseline Study entitled A Sound Baseline for Human Rights in Australia. The submission builds on the extensive recommendations made in Making Rights Real: A National Human Rights Action Plan for Australia. Making Rights Real was a major submission made by the HRLC in response to the Attorney-General’s Background Paper which set out the Government’s proposed approach to developing the National Action Plan as well as a Baseline Study.
A Sound Baseline for Human Rights in Australia aims to provide detailed and constructive recommendations on the draft Baseline Study. The submission makes the following general comments on the Draft:
- procedural aspects of the development of the Draft have not been aligned with the recommendations of Making Rights Real and international best practice;
- the Draft selectively refers to positive examples of initiatives in states and territories without identifying the problems and deficiencies in other states and territories;
- certain critical areas affecting human rights are missing or require further discussion;
- key sources of prior authoritative research and evidence have been omitted;
- the Draft does not reference all relevant all international recommendations from treaty bodies, reports of Special Procedures of the UN Human Rights Council and UPR recommendations; and
- the “Issues a National Action Plan Could Address” sections of the Baseline Study do not clearly identify and articulate the issues in question and should do so. To the extent that actions are proposed, these should be structured as action points following the guidelines set out in the UN Handbook.
In addition to these general comments, the submission includes:
- recommendations for amendments or additions in specific sections of the Draft;
- recommendations for additional sections or topics to be added to the Draft; and
- where appropriate, suggestions as to additions or refinements to the lists of “issues a national action plan could consider” in the Draft, but otherwise refer the Government to the more detailed suggestions as to substantive areas and actions that could be included in the National Action Plan set out in Making Rights Real.
For more information and resources on the National Human Rights Action Plan process please visit our dedicated website www.humanrightsactionplan.org.au
Reform of the regulation, training and monitoring of police use of force is necessary to enhance community safety and ensure Victoria Police comply with human rights. Victoria Police use force, on average, every 2.5 hours. Almost three quarters of these incidents involve the use of capsicum spray. There have been at least 12 people shot dead by Victoria Police in the last decade, while numerous others have died in police custody.
A new report by the Human Rights Law Centre has found that human rights-compliant regulation, training and monitoring of Victoria Police would reduce the incidence of use of force, provide better guidance and support to police in enforcing the law and protecting the community, and increase public confidence in policing.
The report, Upholding Our Rights, is based on an extensive survey of international best practice in human rights-compliant policing, together with consultations with people with mental illness, Indigenous peoples, and young people of African descent. Input was also obtained from Acting Chief Commissioner of Police, Ken Lay.
“Current systems for regulating, monitoring and investigating police use of force are inadequate,” said Anna Brown of the Human Rights Law Centre. “In recent years, Victoria Police has made welcome improvements to training, including by promoting the importance of human rights and increasing the emphasis on communication and conflict de-escalation. However, nearly three years on from the fatal shooting of 15 year old Tyler Cassidy, it is clear that more needs to be done to reduce the frequency of incidents involving the use of force by police in Victoria.”
According to Ms Brown, “The next step must be to reform the law and the Victoria Police Manual to make clear that force is only lawful as a last resort and when strictly necessary. It should be used with the utmost restraint and in a manner which minimises damage and injury.”
In addition to containing constructive and practical recommendations as to police training and law reform, the report also recommends better monitoring and investigation of police use of force.
“Our research and consultations indicate that excessive use of force is a significant issue for people with mental illness, homeless people, Aboriginal and Torres Strait Islander people and young people, particularly of African descent. It also identifies a real risk of ‘mission’ creep’. Force should only be used to safeguard life and property, not for behavioural or compliance purposes,” said Ms Brown. “An independent body, such as the Victorian Equal Opportunity and Human Rights Commission, should be mandated and resourced to monitor where and when police are using force, for what purpose, and against whom.”
The report also reveals that Victoria’s systems for investigating police-related deaths are incompatible with international standards and Victoria’s Charter of Human Rights. “Currently, if someone dies from a police shooting or in police custody, the investigation is conducted by Victoria Police, giving rise to a serious conflict of interest,” said Ms Brown. “Human rights law and international best practice require that such investigations be conducted by a body that is fully independent of police. An independent investigative body would not only reduce the risk of collusion or corruption, but increase public trust and confidence in police processes.”
Ms Brown said that “If the Victorian Government is serious about transparency and accountability, we need to ensure that these principles are upheld when Victorian citizens are injured or killed by Victoria Police.”
The Human Rights Law Centre hopes that the report will be a useful resource and guide to reform for Victoria Police, the government and civil society. “Human rights can provide a valuable framework for police regulation and action that emphasises human dignity while also enabling police to use force in a way that is lawful and enhances community safety. As Victoria Police has itself written, ‘human rights protection is synonymous with good policing in liberal democratic societies’.” In his input to the report, the Acting Police Commissioner wrote that Victoria Police is “committed to working closely with stakeholders to improve the processes and training relating to the effective use of tactical options as well as investigation processes.”
The report was supported through a grant from the Legal Services Board of Victoria Grants Program.
Anna Brown, Human Rights Law Centre – (03) 8636 4432 or 0422 235 522 or firstname.lastname@example.org
The HRLC has made a further submission to the review of the Victorian Charter in response to issues raised in other public submissions to the Scrutiny of Acts and Regulations Committee. The further submission addresses some of the views expressed in relation to the operation of the Victorian Charter that are unfounded in evidence or based on myths or misunderstandings, including that:
- the common law and our political system of representative democracy already adequately protect human rights;
- the Victorian Charter undermines parliamentary sovereignty and transfers power from parliamentarians to unelected judges;
- the Victorian Charter is a lawyers' picnic and leads to more litigation;
- the Victorian Charter protects the rights of minorities at the expense of the majority and is therefore undemocratic;
- the Victorian Charter is bureaucratic, costly and inefficient;
- the Victorian Charter undermines religious freedoms;
- human rights are vague and ill-defined; and
- the expression of the human rights contained in the Victorian Charter is inconsistent with the expression of those rights in international conventions, like the ICCPR.
The HRLC's comprehensive submission to the Scrutiny of Acts and Regulations Committee is available here.
On 27 August 2010 the UN Committee on the Elimination of Racial Discrimination adopted its Concluding Observations on Australia. The Committee asked Australia to follow up within 12 months with detailed information on three of the recommendations, concerning:
- the role and functions of the Race Discrimination Commissioner and the powers of the Australian Human Rights Commission;
- developments related to the Northern Territory Emergency Response; and
- racially motivated violence, particularly against international students.
The HRLC has provided an update to the Australian Government and to the Committee on Australia's response to the Concluding Observations.
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Australia should consider “overarching human rights framework” for foreign policy, says parliamentary committee A joint parliamentary committee has recommended that the Department of Foreign Affairs and Trade attach further importance to human rights in its work.
On 21 July, the Joint Committee on Foreign Affairs, Defence and Trade published its Review of the DFAT Annual Report for 2009-10. The Human Rights Law Centre previously made a submission to the review, calling for a human rights-based approach to foreign affairs and the development of a comprehensive, overarching human rights policy. The HRLC also made a range of other recommendations, including as to the use of social media as an important tool of modern human rights diplomacy.
In response to these recommendations, the Joint Committee “notes the potential value of having an overarching human rights framework against which to test foreign policies, and encourages DFAT to further highlight the importance of human rights in its annual report”. The Committee also highlights the value of Australia engaging in bilateral human rights dialogue and involving relevant parliamentarians in these processes.
On the topic of e-diplomacy, the Committee takes note of DFAT’s limited resources but, consistent with the HRLC submission, recommends that DFAT “make stronger efforts to capitalise on the potential offered by modern communications technology in terms of the dissemination and collection of information, and make greater efforts at understanding future e-diplomacy opportunities”.
The Government has not yet responded to the Committee report.
A coalition of leading international and domestic NGOs has presented a major paper to the UN Office of the High Commissioner for Human Rights on strengthening the UN human rights treaty bodies. The Pretoria Statement - which was prepared by NGOs including Amnesty International, the International Service for Human Rights, the Centre for Human Rights (South Africa), CELS (Argentina) and the Human Rights Law Centre (Australia) - contains over 60 concrete and practical recommendations to improve the work of human rights bodies at the international level and the fulfilment of human rights on the ground.
The statement is open for endorsement by other NGOs. If your NGO wishes to endorse the Pretoria Statement, please send a notification preferably before 15 August 2011 to email@example.com.
UN human rights bodies are an essential part of the framework for the promotion and protection of human rights, complementing the work of regional and domestic human rights mechanisms, non-government organisations and national human rights institutions.
In 2009, the UN High Commissioner for Human Rights commenced a process of reform to strengthen the UN human rights treaty bodies. The strengthening process is intended to make the work of treaty bodies more coordinated and effective and to enhance the fulfilment of human rights on the ground. The High Commissioner has invited inputs and proposals from states, NGOs, human rights experts and NHRIs in this regard.
In response to this call, a civil society consultation was held in Pretoria on 20 and 21 June 2011, hosted by the Centre for Human Rights, Faculty of Law, University of Pretoria. This consultation examined and built on previous statements, including the 2009 Dublin Statement on the Process of Strengthening the UN Human Rights Treaty Body System (and the 2010 NGO response thereto), the 2010 Marrakech Statement, the 2010 Poznan Statement and the 2011 Seoul Statement.
The Pretoria Statement sets out over 60 recommendations, including as to:
- guiding principles of reform;
- the periodic reporting process;
- the review of states which fail to submit periodic reports;
- individual communications and remedies for human rights violations;
- follow up and implementation of human rights recommendations; and
- the protection of human rights defenders.
About the Review
The Victorian Attorney-General recently announced a review of the Charter of Human Rights and Responsibilities Act 2006 (Victorian Charter) after four years of its operation. The review is to be conducted by the Scrutiny of Acts and Regulations Committee (SARC), which is due to report to Parliament by 1 October 2011.
Further information about the conduct of the review by SARC is available at http://www.parliament.vic.gov.au/sarc/inquiry/297.
An Opportunity to Strengthen the Victorian Charter
Four years after the introduction of the Victorian Charter, clear evidence is emerging that the Charter is having a beneficial impact on the operation of government and individuals in the community. The review of the Victorian Charter presents a significant opportunity to strengthen and enhance its operation.
The HRLC has made a submission to the review of the Victorian Charter, which addresses:
- the overall impacts and benefits of the Charter;
- the Charter's impact on legislative and policy formulation;
- the Charter's impact on decision making and service delivery;
- the Charter's impact on Victorian law; and
- myths and misconceptions associated with the Charter's operation to date.
In its submission, the HRLC makes 20 key recommendations to improve the Charter’s effectiveness.
The HRLC has also made a further submission to the review of the Victorian Charter in response to issues raised in other public submissions to SARC. The further submission addresses some of the views expressed in relation to the operation of the Victorian Charter that are unfounded in evidence or based on myths or misunderstandings.
Key Submissions to the Review of the Charter
The HRLC has compiled a list of submissions that have been made to the review of the Victorian Charter.
Further Information about the Review of the Victorian Charter
For further information about the HRLC's activities in relation to the review of the Victorian Charter, please contact Ben Schokman on (03) 8636 4451 or firstname.lastname@example.org.