What should be the new AG’s human rights priorities?

Australia’s new Attorney-General, Nicola Roxon, was sworn in on 14 December 2011. We asked some of Australia’s leading human rights advocates, activists and academics to tell us, in less than 100 words, what the Attorney’s top human rights priority or initiative for 2012 should be. Here’s what they had to say.

Catherine Branson QC – President of the Australian Human Rights Commission

My hope is that the new Attorney-General’s priorities will include bringing along her fellow ministers and parliamentarians in making the new human rights scrutiny processes effective and seeing through the consolidation of federal discrimination laws process to create an effective national equality law. She should also ensure the ratification of the Optional Protocol to the Convention against Torture and establish a national system of monitoring places of detention. Finally, the Attorney must ensure that human rights considerations inform policy in all areas of her portfolio, for example in security policy where there is an urgent need for a system enabling review of adverse security assessments.

Claire Mallinson – National Director of Amnesty International Australia

With the start of a New Year and a new Attorney General in place there is a real opportunity to address the serious human rights violations that are currently occurring.

Amnesty International’s 142,000 supporters in Australia and our millions more across the world are looking to the new Attorney General to show leadership and implement the Government’s statements of commitment to human rights.

Real change, including significant legislative and policy reform must occur to ensure human rights are protected, including implementation of the 145 recommendations that the UN Human Rights Council made to the Australian government earlier this year.

A genuine commitment to upholding human rights needs to be at the core of Nicola Roxon’s work.

Julian Burnside AO QC – Leading human rights barrister and refugee advocate

Apart from a Human Rights Act, the Attorney-General should make sure that ASIO decisions concerning refugees are timely and effectively reviewable. Boat people can remain in detention for many months – more than a year in some cases – after being assessed as refugees, waiting for an ASIO assessment. People assessed as refugees but adversely assessed by ASIO face lifetime detention, without being given reasons. ASIO refuses to give reasons for an adverse assessment, thus making judicial review extremely difficult. Al Kateb’s case means that a refugee who is refused a visa (because of ASIO) and cannot be removed from Australia (because they are a refugee) can stay in detention forever. The A-G needs to ask whether this fits our conception of a just society.

Ed Santow – Chief Executive Officer of the Public Interest Advocacy Centre

Over the last few years, the Australian Government has made progress in improving the protection of our basic rights. However, Australia still lacks a comprehensive human rights law. This increases the vulnerability of already disadvantaged people — like Indigenous Australians, people experiencing homelessness and people with a disability. To rectify this, the new Attorney-General should take the lead in fully implementing the recommendations of the 2009 National Human Rights Consultation, including by enacting a comprehensive Human Rights Act.

Chris Sidoti – International human rights expert and member of the HRLC’s Advisory Committee

Rob McClelland was a good Attorney General for human rights. But he failed the biggest need and challenge, to achieve an Australian Charter of Rights – not through lack of personal commitment, it has to be said, but through Prime Ministerial and Labor Party opposition.

Nicola Roxon’s challenge is the unfinished business:

  • having the new parliamentary human rights committee elected and put to work quickly and effectively
  • completing outstanding treaty ratifications: the Optional Protocol to the Convention Against Torture, the Migrant Workers Convention, the Optional Protocols on complaints of violations of economic, social and cultural rights and of the rights of children
  • ensuring that, at long last, Australia’s regime for boat people conforms with international human rights law
  • most importantly, reviving work to get us an Australian Charter of Rights by 2014.

Professor Hilary Charlesworth – Director of the Centre for International Governance and Justice at ANU

The 2011 Universal Periodic Review of Australia provides a useful agenda for the new Attorney-General. While various aspects of the Human Rights Council’s recommendations have been accepted by Australia, some of the major concerns have been rejected or sidelined. These include ensuring that the treatment of asylum-seekers is consistent with our international commitments and that Indigenous Australians can enjoy the rights set out in the Declaration on the Rights of Indigenous Peoples. Taking the UPR seriously not only at the domestic level but also in our foreign and aid policies would be a fruitful human rights investment for Australia.

Nicky Friedman – Head of Pro Bono & Community Programs with Allens Arthur Robinson

The new Attorney should ensure that asylum seekers can access and exercise their legal rights. Since the High Court’s decision in M61, which confirmed that review by the courts is available to asylum seekers who are processed offshore, legal assistance providers have been hit with floods of applications for legal representation in judicial review proceedings. Despite the huge increase in demand, no extra funds have been provided and legal aid and community legal centres are turning away desperate people. The Attorney should provide funds to boost the capacity of refugee and immigration community legal centres and legal aid commissions to deal with these matters immediately.

Professor Sarah Joseph – Director of the Castan Centre for Human Rights Law

There are many human rights priorities for Australia in 2012, such as properly implementing the new Human Rights (Parliamentary Scrutiny) Act and vastly improving this country’s impoverished refugee debate. As the number one priority, however, I would say that the Australian Government must take the lead in vigorously supporting amendment of the Australian Constitution to better recognise and protect the rights of Indigenous peoples, and to educate Australian people about the need for such amendment. A campaign against Constitutional recognition has already begun (see eg, J Albrechtsen in The Australian on 14 December). The government and the opposition must get on the front foot to counter the scaremongering.

Nicolas Patrick – Partner and Head of Pro Bono with DLA Piper

I would prioritise the human rights of people in places of detention.

A significant proportion of Australia’s prison population suffer from mental illness. There is a causal and consequential link between imprisonment and mental illness. Australia is warehousing people with mental health problems in prisons, where mental health care is entirely inadequate.

The number of juveniles in detention is also a major concern, along with the over-representation of Aboriginal and Torres Strait Islander peoples. These issues raise significant concerns with respect to Australia’s obligations under the Convention against Torture, the Convention on the Elimination of Racial Discrimination and the International Covenant on Civil and Political Rights and require the urgent attention of the Australian Government.

Robin Banks is Tasmania’s Anti-Discrimination Commissioner

Work has begun on the important work of consolidating federal anti-discrimination laws. This is a once in a decade opportunity not only to consolidate the laws but to modernise them and bring them into line with international developments in equality law. At a minimum, the federal government should provide leadership on the next generation of equality laws and ensure federal protection against discrimination for all those currently protected by state or territory laws, with the capacity to readily extend the protection to newly emerging disadvantaged groups. A proactive compliance model should be at the core of the reforms.

Anna Cody – Director of Kingsford Legal Centre

The Australian Government has a great opportunity to make life fairer for disadvantaged people through the consolidation of Commonwealth anti-discrimination laws project. This has the potential to impact on the most disadvantaged in our community – Indigenous peoples, particularly Indigenous women and Indigenous people with disability. The Attorney General’s Department has made a great start and should ensure creation of a pro active regulatory approach which doesn’t rely on individuals making complaints and can address systemic discrimination. For example a new framework can look at the experience of Indigenous women in getting secure, affordable housing and eradicate institutional barriers.

David Manne – Executive Director of the Refugee and Immigration Legal Centre

There are a range of areas where Australia’s treatment of asylum-seekers and refugees is inconsistent with international human rights obligations and domestic legal norms. A pressing reform priority is the management of ASIO security assessments. A growing number of people have been recognised as refugees but remain indefinitely detained due to negative security assessments, without any explanation of the basis on which they supposedly pose a security risk, and without any opportunity to respond to such concerns. This process needs to be brought in line with international and domestic principles of natural justice, and in particular, the provision of a meaningful opportunity to respond to adverse information, to challenge it, and access to independent review.

Professor Spencer Zifcak – President of Liberty Victoria

The first major announcement Nicola Roxon should make is that the Government will appoint a Commonwealth Children’s Commissioner. The Commissioner’s primary task should be to act as an advocate for children’s rights and interests. Children in many categories are significantly disadvantaged. These include Indigenous children, refugee children, homeless children, children with physical and mental disabilities, and children in state care. Yet they have no official representative to articulate their needs and their opinions. It is time they had one. The UN Committee on the Rights of the Child has recommended that Australia take this initiative. The A-G should seize this opportunity to make children’s rights real.

Stephen Keim SC – President of Australian Lawyers for Human Rights

The challenge for any Australian Attorney-General is to put human rights principles ahead of political convenience.

This means standing up for accountability in respect of alleged torturers and war criminals, whether they are from the United States or Sri Lanka, on the one hand, or a conveniently deposed Libyan dictator on the other.

It is no more honourable, now, to encourage an international culture of impunity than it was when a former Australian government stood aside and allowed Australians, David Hicks and Mamdouh Habib, to be rendered, tortured and illegally imprisoned for years on end.”

Kristen Hilton – Director of Civil Law, Access & Equity with Victoria Legal Aid

Under the Federal Government’s Access to Justice Framework, better and more transparent primary decision making is a key goal.

Statistics show that nearly a third of challenged Centrelink decisions are changed on internal review and more are changed at higher tribunals. Similarly, poor primary decision by the Department of Immigration on refugee applications has meant that two out of three decisions have been overturned on appeal. In one of the least transparent exercises of government decision making, asylum seekers who have received negative security assessments not only have no right to appeal, they have no right to know the reasons behind the decision.

Restoring public confidence in effective, transparent decision making that is based on principles of fairness and justice and a respect of individuals’ rights would greatly improve access to justice and should be a key priority.

Rodney Croome – Director of the Australian Coalition for Equality

The Attorney’s priorities should be as follows:

  1. Comprehensive national laws prohibiting sexuality and gender identity discrimination and vilification are long overdue. “Comprehensive” means no exemptions for church schools and welfare agencies.
  2. It’s not enough for federal politicians to support marriage equality. If reform is to occur it needs heterosexual, front-bench champions like the Attorney-General. She must also remove the bureaucratic barriers to same-sex couples marrying overseas, immediately!
  3. The civil and political rights of LGBTI people are still regularly violated and need the protection of a Charter of Rights. The ICCPR already acts as a de facto charter for Australia, albeit a weak one. It’s time for us “repatriate” our human rights protections so Australian human rights violations can be judged by Australian courts according to standards set by the Australian people.
  4. The implementation of these reforms will not be easy. The Attorney must establish an LGBTI reference group to help her Department, similar to groups at the state level.

Professor David Kinley – Chair in Human Rights Law at Sydney Law School

Pay very close attention to the newly established parliamentary human rights scrutiny committee. This is a sleeping giant, whose potential power and range is underappreciated; indeed largely unnoticed. Having authority to scrutinise all bills for compliance with all Australia’s international human rights obligations goes far beyond the scope of any equivalent mechanism overseas, and it will embarrass and expose. So, heads up for the enhanced human rights scrutiny of the next wave of immigration, anti-terrorism or workplace relations proposals.

PS. Don’t take up smoking this year.

Professor Andrew Lynch – Director of the Gilbert + Tobin Centre of Public Law

Alongside the perennial challenge of how Australia treats those who seek asylum here, the Attorney-General’s particular human rights priority for 2012 is handling the lead-up to the referendum in the interests of Indigenous Australians. When the Expert Panel reports on its consultation process in mid-January, the ball is firmly back in the government’s court. I want to see less emphasis on simply ‘constitutional recognition’ and greater willingness to seize this once-in a generation opportunity to place a meaningful guarantee of racial equality in our Constitution for the protection of all in our community, but most importantly our First Peoples.

John Tobin – Associate Professor at Melbourne Law School and member of the HRLC Advisory Committee

The prioritisation of efforts to address human rights considerations is always fraught with danger. But the reality of limited resources means that prioritisation is a fact of political life. Given this reality, the top priority for the new Attorney General in 2012 must be ensuring the successful implementation of the Human Rights (Parliamentary Scrutiny) Act 2011. The requirement to scrutinize all new legislation in light of international human rights standards must not be reduced to a shallow process of compliance. Instead, the Attorney General must lead from the front and demonstrate that substantive engagement with international human rights standards leads to more effective and equitable legislative outcomes.

Lucy Adams – Senior Lawyer with the PILCH Homeless Persons’ Legal Clinic

On census night in 2006, approximately 105,000 Australians were homeless, including approximately 7,480 families. Australia needs a human rights-based framework for addressing homelessness.

In Victoria, we have seen how legislative protection of human rights can work in practice through the Victorian Charter of Human Rights. The HPLC has relied on the Charter’s binding obligations on public bodies – to give proper consideration to human rights in decision-making and to act compatibly with human rights – to avoid the eviction of 42 people, including 21 children, from social housing into homelessness.

Enforceable human rights obligations, including national homelessness legislation that enshrines the right to adequate housing, are critical to Australia’s ability to effectively prevent and address homelessness.

Lucy McKernan is Manager of Strategic Projects with the Public Interest Law Clearing House

That a five year old girl can be lawfully refused admission to a government funded kindergarten on the basis of her parents’ same-sex relationship, is a disgrace. Even the Acting Bishop for the relevant Catholic diocese was ‘appalled’ by the discriminatory decision, yet Australian laws allow this form of discrimination by religious organisations.

Attorney-General Roxon should remove the blanket exceptions for religious organisations permitting them to discriminate on the grounds of sex and age. At the very least, the Attorney should prohibit discrimination by religious organisations in respect of their government funded functions and require greater transparency from organisations seeking to rely on the exceptions. Importantly, the Attorney should also show leadership by encouraging her State counterparts to follow suit.

Les Malezer is Co-Chair of the National Congress of Australia’s First Peoples

The priority for Aboriginal and Torres Strait Islander Peoples is to gain recognition and respect as first peoples, and acknowledgement and protection of Indigenous rights.

In 2012, the Attorney General must make the Human Rights Framework effective, leading cultural change across government. For Aboriginal and Torres Strait Islander peoples this includes giving the recommendations and reports of the ATSI Social Justice Commissioner real authority, not just political lip service. The Government must also implement and be accountable to reports on human rights by national and international authorities. There should also be a focus on judicial and legal education, to ensure legal professionals understand Indigenous rights and can properly and impartially resolve cases regarding those rights.

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Centre

It is not well-known that the Australian Attorney General presides over a regime under which suspected people smugglers, including children, are detained without charge for significant periods (in some cases, over 12 months) without access to a lawyer or judicial review of their detention.

The vast majority of those detained are young crew-members from impoverished Indonesian fishing villages who had no involvement in the organisation of people smuggling operations.

The Attorney General should act quickly to ensure that these people are afforded immediate access to a lawyer, are brought promptly before a court and are not subject to prolonged and arbitrary pre-charge detention.

Edwina MacDonald is Law Reform and Policy Coordinator with Women’s Legal Services NSW

The Attorney should prioritise eliminating violence against women. With one in three Australian women experiencing violence since the age of 15, violence against women is one of Australia’s most widespread human rights abuses. The recent amendments to the Family Law Act were a good step but much remains to be done. The Attorney should start by prohibiting discrimination against victims or survivors of domestic violence, implementing the Australian Law Reform Commission’s report on Family Violence and establishing an independent monitoring mechanism for the National Plan to Reduce Violence Against Women and Children, as recommended throughAustralia’s Universal Periodic Review.