Australia and Human Rights Leadership: Initiatives to Promote Human Rights at Home and Abroad

On 10 December 2009, the Centre released a paper entitled Human Rights Leadership: Initiatives to Promote Human Rights at Home and Abroad.  The paper, which was provided to the Federal Government in September, proposes 20 initiatives which Australia could take to strengthen a range of normative, preventative and remedial mechanisms to protect human rights at the local, regional and international levels.

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Indigenous Rights: Request for Urgent Action on NT Intervention from UN CERD

The UN Committee on the Elimination of Racial Discrimination ('CERD') has requested that the Australian Government take urgent action to ensure that the Northern Territory Intervention complies with Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination. In an Urgent Action Letter to Australia dated 13 March 2009, the Committee called upon the Australian Government to reinstate the Racial Discrimination Act 1975 (Cth) and to build a new relationship with Aboriginal Australia.  The Committee's urgent procedures mechanism is designed to respond to situations requiring immediate attention to prevent or limit serious violations of the Convention.

In a further letter dated 28 September 2009, the Committee notes the recent assessment of the UN Special Rapporteur on the Rights of Indigenous Peoples following his country visit to Australia in September that the Northern Territory Intervention remains incompatible with Australia’s international human rights obligations.

The Committee’s most recent letter also notes that Australia’s next periodic report under the Convention on the Elimination of Racial Discrimination is now more than 12 months overdue, and requests the Australian Government to submit its report before the Committee’s forthcoming session in February 2010.

Background

CERD's action has been in response to a Request for Urgent Action made to the Committee in February 2009 on behalf of a group of 20 Indigenous Australians affected by the Northern Territory Intervention.  The Request for Urgent Action argues that the suspension of the Racial Discrimination Act and the Australian Government's failure to consult adequately with affected Aboriginal communities violates arts 2, 5, 6 and 7 of the Convention on the Elimination of All Forms of Racial Discrimination.

An Update to the Request for Urgent Action was sent to the Committee on 11 August 2009, which provided further information to the Committee about the inadequacy of consultations being undertaken by the Federal Government, the continued suspension of the Racial Discrimination Act and the threatened compulsory acquisition of the Alice Springs town camps.

The authors of the Request for Urgent Action are a group of 20 Alice Springs town camp and remote community residents.  The authors are being assisted by a legal team including former Federal Court judge Ron Merkel QC and lawyer George Newhouse, with substantial assistance being provided by the Human Rights Law Resource Centre.

The group is extremely concerned about the continuing serious and pervasive effects that the Northern Territory Intervention measures are having on Indigenous communities and, in particular, their traditional way of life.  The Urgent Action therefore requested that the UN Committee on the Elimination of Racial Discrimination take urgent action by calling on the Australian Government to take immediate steps to reinstate the operation of the Racial Discrimination Act and to enter into significant and meaningful discussions with affected communities and individuals.

The Australian Human Rights Commission has described the Northern Territory Intervention measures as 'punitive and racist' and, following a comprehensive analysis of the Intervention, found that the 'racially based legislation' contravenes a number of international human rights conventions and the Racial Discrimination Act.

In addition to its discriminatory nature, the Northern Territory Intervention legislation was passed without any consultation with Aboriginal representatives or affected communities.  This is particularly worrying as the Northern Territory Intervention measures were introduced and continue at a time when there is no representative body for Aboriginal people in Australia.

 

ACT NOW! A Human Rights Act for Australia

The landmark Report of the National Human Rights Consultation, released by the Federal Government on 8 October 2009, recommends that Australia enact a comprehensive national Human Rights Act. The report also recommends a range of other measures to protect human rights in Australia, including strengthening the Australian Human Rights Commission, enhancing human rights education, improving parliamentary scrutiny of human rights, improving access to justice and addressing Indigenous disadvantage and exclusion.

The Government has announced that it will respond to the report in December 2009.  For people concerned with improved protection of human rights in Australia, the time to act is now!

Act Now for a Human Rights Act: What can you do? 

You can be part of the campaign for a Human Rights Act by writing or emailing to your local MP or to the Prime Minister and the Attorney-General.

In preparing a letter, you may find the following materials helpful:

In writing your email or letter, don't assume that your MP has any knowledge about the consultation or the report.  Here are some tips about what you might include in a letter:

  • Tell your MP about the massive participation by Australians in the Consultation and that the report recommended the adoption of a Human Rights Act.
  • Most importantly tell your MP about your story, why human rights matter to you. Is it because of a breach of your human rights or someone close to you? Or do you know about human rights problems through your work or community?
  • Tell them why action needs to be taken NOW - tell how the human rights issue you experience persists in some form.

Tell your MP to support a Human Rights Act as a means of addressing these issues, and creating a human rights culture in Australia. 

 

About the National Human Rights Consultation and the Report:

The National Human Rights Consultation was announced by the Commonwealth Attorney-General, the Hon Robert McClelland MP, on 10 December 2008, the 60th anniversary of the Universal Declaration of Human Rights.  The Consultation was conducted by an independent committee, comprising Father Frank Brennan (Chairperson), Mary Kostakidis, Mick Palmer, Tammy Williams and Philip Flood.

The Report of the National Human Rights Consultation was released following one of the most extensive exercises in participatory democracy in Australian political history.  The independent Consultation Committee received over 35,000 submissions and hosted 66 roundtables in 52 locations throughout metropolitan, regional and rural Australia.  Over 80 per cent of the submissions (almost 28,000) called for the enactment of an Australian Human Rights Act.

The Committee found that, ‘after 10 months of listening to the people of Australia, [there is] no doubt that the protection and promotion of human rights is a matter of national importance.’

Key Findings:

The Committee made the following key findings which must be carefully considered in responding to the recommendations contained in the report:

  • Human rights matter deeply to Australians.  They resonate with Australian democratic values, the rule of law and our sense of a fair go.  There is strong support for the promotion and protection of all human rights, including economic, social and cultural rights (p 96).  ‘For most Australians, the main concern is the realisation of economic and social rights such as the rights to education, housing and the highest attainable standard of health’ (p 365).
  • While Australia has strong democratic and legal institutions, they do not provide comprehensive or even adequate protection of human rights.  The patchwork quilt of human rights protection is missing pieces and this is felt most keenly by the marginalised and vulnerable (p 127-128).
  • Human rights are not enjoyed fully or equally by all Australians.  Both in fact and in law, many groups within Australia experience profound disadvantage, including the homeless, people with mental illness, Aboriginal Australians, asylum seekers and children with disability.  There is a strong view that ‘we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out’ (p 343-344).  Positive legislative and institutional action to promote human rights has widespread public support.
  • There is a need for better education about human rights within the community (p 149-151).
  • There is a need for a better understanding of and commitment to human rights within government and greater consideration of human rights in the development of legislation and policy (p 149-151, 175, 355-356).  Instilling a human rights culture in the federal public sector is integral to better protect and promote human rights in Australia (p 186).
  • There is strong support for strengthening and expanding the powers, functions and resources of the Australian Human Rights Commission (p 195).
  • There is very strong support for a Human Rights Act.  87.4 per cent of submissions to the Committee which considered the issue supported the enactment of a Human Rights Act.

Key Recommendations:

Consistently with these findings, the Committee recommends that Australia adopt a comprehensive Human Rights Act with the following key features:

  • The Act should promote a dialogue about human rights between parliament, the executive, the courts and the community.
  • The Act should only recognise and protect the human rights of human beings.  Its protection should extend to all people within Australia, as well as all people who are overseas but subject to Australian jurisdiction.
  • The Act should enshrine civil and political rights and possibly social and economic rights, particularly the right to adequate housing, the right to health and the right to education.
  • The Act should recognise and provide that certain rights are absolute and non-derogable, including the right to life, the right to a fair hearing and the right to protection from cruel, inhuman or degrading treatment.  All other human rights would be subject to a general limitations clause, which permits such reasonable limits as can be demonstrably justified in a free and democratic society, taking into account relevant factors.
  • The Act should establish robust pre-legislative human rights scrutiny mechanisms.  New bills introduced into parliament should include a statement as to their ‘human rights compliance’ and a Joint Committee on Human Rights should review the human rights compatibility of all bills.
  • The Act should bind 'federal public authorities', including federal Ministers, bodies created by federal laws and undertaking public functions, and private entities that perform public functions on behalf of federal public authorities.
  • The Act should require that federal authorities act compatibly with rights (other than economic and social rights) and give proper consideration to human rights (including economic and social rights) in decision making.
  • The Act should require courts to interpret all federal law compatibly with human rights so far as is possible consistent with statutory purpose, but not empower courts to invalidate legislation.
  • Where it is not possible for legislation to be given a human rights-consistent interpretation, the High Court be given the exclusive power to make a declaration of incompatibility.  Such a declaration would not affect the validity of the legislation but would require that parliament reconsider that legislation within a specified period.  The decision as to whether to amend, repeal or leave the legislation untouched would be entirely a matter for parliament.
  • The Act should provide people with effective remedies where their human rights are breached.  In the case of civil and political rights, an individual would be able to institute an independent cause of action against a federal public authority, with the usual suite of remedies available, including damages.  The Committee recommends that breaches of economic, social and cultural rights not be justiciable, but that the Australian Human Rights Commission be given a mandate to hear complaints in relation to those rights.

Further key recommendations in the Committee’s 450 page report include that:

  • the Federal Government develop a national plan of comprehensive human rights education and that ‘education be the highest priority for improving and promoting human rights in Australia’;
  • the Federal Government audit all legislation, policies and practices to ensure human rights compliance;
  • Federal Parliament establish a Joint Committee on Human Rights to review all legislation for compliance with human rights (whether or not a Human Rights Act is adopted);
  • the Administrative Decisions Judicial Review Act 1975 (Cth) be amended to provide that human rights are a relevant consideration in administrative decision-making;
  • the Acts Interpretation Act 1901 (Cth) be amended to require courts to interpret federal laws consistently with human rights, as much as it is possible to do so consistently with the legislation's purpose;
  • the Federal Government develop a whole-of government approach to human rights and appoint a Minister responsible for human rights;
  • federal departments and agencies develop human rights action plans and report on human rights compliance in their annual reports; and
  • the Australian Human Rights Commission receive a strengthened mandate and powers.

The Human Rights Law Resource Centre made three major submissions to the consultation: Engage, Educate, Empower in April 2009; A Human Rights Act for All Australians in May 2009; and a Supplementary Submission on Religion and Human Rights in June 2009.  These submissions, together with our collection of case studies, online materials and comprehensive discussion paper entitled Engaging in the Debate, were extensively cited and endorsed in many other submissions and the report itself. 

HRLRC Media Statement:

“The level of engagement demonstrates that human rights matter deeply to Australians – they resonate with our shared values of freedom, dignity, justice and a fair go,” said Philip Lynch, Director of the Human Rights Law Resource Centre.  According to Mr Lynch, the evidence collated by the Committee also demonstrates that human rights are not enjoyed fully or equally by all Australians.  “Both in fact and in law, many groups within Australia experience profound disadvantage, including the homeless, people with mental illness, Aboriginal Australians, asylum seekers and children with disability,” said Mr Lynch.  “The Federal Government’s response to the Committee’s report represents an historic opportunity to improve the lives not only of these vulnerable groups, but the quality of Australian democracy for all.”

The National Human Rights Consultation report makes a range of recommendations to better protect and promote human rights in Australia, including the enactment of a federal Human Rights Act.  Over 80 per cent of submissions supported a Human Rights Act.  “An Australian Human Rights Act could promote more responsive and accountable government, improve public services and address disadvantage,” said Mr Lynch.  “Like the Victorian Charter of Human Rights and the ACT Human Rights Act, it could ensure that human rights are taken into account by parliament, the courts and public services when developing and applying law and policy”.

Welcoming the report’s recommendations, Mr Lynch said that, “The Rudd Government’s response to this report represents an historic opportunity to honour its commitment to the protection and promotion of human rights.”  “Australians have spoken loudly and clearly on the need for a Human Rights Act.  Now is the time for the Rudd Government to show political leadership and vision.  This report creates an opportunity – and responsibility – to promote human rights, dignity and diversity as being as central to Australian culture and identity as beaches, boomerangs, the Anzac spirit and the Ashes.”

 

HRLRC Opinion Piece:

An opinion piece on the National Human Rights Consultation and the promotion and protection of human rights in Australia, published on the eve of the report's release, is available here.

Interpretation and Limitations: HRLRC Amicus Intervention in Momcilovic v R

Centre Granted Leave to Appear as Amicus Curiae in Victorian Court of Appeal.

On 22 July, the Centre was granted leave to appear and was heard as amicus curiae in the Victorian Court of Appeal in the matter of Momcilovic v R.

The matter concerns the application of the Charter and the interpretation of s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), a ‘reverse onus’ provision.

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Chief Commissioner of Police v Coroner Bryant

Centre Granted Leave to Appear as Amicus Curiae in Right to Life Test Case On 17 June, the Centre was granted leave to appear as amicus curiae in the Victorian Supreme Court in the matter of Chief Commissioner of Police v Bryant (in his capacity as Coroner).

The case concerned a coronial inquest into the death of a cyclist in December 2006 and, in particular, the Coroner's powers and the scope of matters into which the Coroner may inquire pursuant to s 19 of the Coroners Act 1985 (Vic).   The Chief Commissioner of Police sought an order in the Supreme Court prohibiting the Coroner from inquiring into certain systems, policies and practices.

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ICESCR: Committee Releases Landmark Report on Australia

The UN Committee on Economic, Social and Cultural Rights has urged Australia to make human rights a priority at a time when the global financial crisis threatens the dignity, equality and freedom of many poor and vulnerable groups.  In a landmark report, the Committee also called on Australia to take urgent action to address the human rights implications of climate change and to increase aid to developing countries; the fist time that a UN treaty body has included recommendations on these issues in a human rights report.

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