Australia and the Right to Health: Indigenous Health and Access to Healthcare in Detention

The UN Special Rapporteur on the Right to Health, Anand Grover, concluded his 12 day mission to Australia on 4 December 2009.  The HRLRC convened NGO consultations with the Special Rapporteur in Melbourne (25 Nov) and Sydney (30 Nov) and prepared a major briefing paper on the Right to Health in Australia in advance of the mission. The mission focused on two primary issues: Indigenous health and access to healthcare in detention.  Below is an edited extract of the Special Rapporteur’s ‘Preliminary Observations and Recommendations’ delivered in Canberra on 4 December.

“The focus of this mission was on two main issues – Indigenous health and access to healthcare in detention establishments, including those for asylum-seekers, refugees and prisoners.  I looked at these issues through the prism of the right to health.  But that was one of my major challenges as there is no legal right to health in Australia.

Australia’s failure to incorporate international human rights standards enshrined in treaties to which it is a party into domestic law remains an issue of great concern for me, as those rights need to be enforceable at the national level.  I make note of the recent National Human Rights Consultation process, culminating in a report which recommended the increased recognition of human rights within Australia.  I urge the Government to take necessary steps to incorporate international human rights standards into domestic legislation, all of which should be justiciable, including economic, social and cultural rights.

The health of Australia’s refugee and asylum seeker population in detention has been a significant concern for many years.  Some of the Government’s policy changes surrounding immigration detention, particularly around frequency of review of detention, are to be commended. The average lengths of time for which individuals are detained have significantly decreased, diminishing the inherent risk of mental illness associated with indefinite detention.  Removal of temporary protection visas has also gone some way towards ameliorating uncertainty within this population.  Provision of health services in mainland immigration detention centres appears generally satisfactory.

However, I would like to emphasize my overriding concerns regarding the situation of persons in detention centres: the fact that detention remains mandatory, with no maximum limits on duration of stay, and that there are no binding legal standards that must be met in providing services.  These factors impact negatively on the status of health of persons in detention. Moreover, the excising of Christmas Island under the Migration Act, whereby refugee claims are determined by a non-statutory process, means that Island detainees lack the same rights to judicial review as their mainland counterparts.  Although processing time on Christmas Island has decreased, major problems remain concerning the accessibility and appropriateness of the facility.  These factors, particularly the logistical difficulties associated with airplane access, make rendering health and other services extremely challenging and present a significant obstacle to ensuring on-going monitoring by non-governmental and independent stakeholders.

The health of Australia’s prison population was also an issue of concern to me, including in relation to the provision of primary health care, resourcing of health promotion projects, and the provision of appropriate services to Aboriginal and Torres Strait Islanders.  I recommend that the Government invests additional funds to ensure sustainable delivery of primary healthcare services.  Further, there needs to be an increased and proactive focus on health promotion activities as well harm reduction interventions, such as needle and syringe exchange programmes, to address the preventive health needs of inmates of all cultural backgrounds.

Individuals with mental illnesses are overrepresented in all types of custody.  The deinstitutionalization of mental health services over recent times is a welcome development in healthcare, but inadequate resourcing of alternative services has resulted in a shift of individuals with mental illnesses to the nation’s prisons.

Indigenous populations are also vastly overrepresented in the prison population.  Diversion programs, sentencing policies and criminal laws must all be considered when broadly assessing the health of Aboriginal and Torres Strait Islander populations, as incarceration has wide-ranging detrimental health effects.

Whilst Aboriginal and Torres Strait Islanders are overrepresented in the prisoner population, they are underrepresented in the prison staff cohort; this should be addressed through targeted programs that recruit and engage Aboriginal and Torres Strait Islander health workers and correctional staff in a culturally appropriate manner.

Knowing Australia to be a developed, prosperous country, I was moved by the stories told to me by indigenous communities, the living conditions I saw, and the extent of preventable disease and health-related disability I witnessed among those of Aboriginal and Torres Strait Islander descent.  The right of a significant proportion of Australia’s Indigenous populations to the highest attainable standard of physical and mental health is being violated.  Basic needs, such as adequate housing, safe drinking water and sanitation and access to education are not being met.

Including the Indigenous population in policy and decision–making processes is necessary to build relationships which would ensure genuine protection of their interests, while securing their respective cultural identities and self-determination, and restoring respect and dignity.  I note that the Government has signaled an intention to establish the National Congress of Australia’s First Peoples, which represents one mechanism by which this engagement could occur.  However, I would stress the importance of legislative guarantees, or other such mechanisms, to ensure that the opinions of any such body must be taken into account.

Initiatives such as this are a welcome development, and represent major progress – but other initiatives in recent times have proved not as successful.  The Northern Territory Emergency Response has unfortunately undermined some of this progress in efforts towards reconciliation, as communities describe the NTER as paternalistic, disempowering and racially motivated.  Furthermore, the NTER failed to meet basic standards of a rights-based approach to health, such as the development of a transparent plan with clear benchmarks and indicators, participation, the meaningful engagement of communities and the establishment of mechanisms for monitoring and accountability.  I welcome the Government’s decision to reinstate the Racial Discrimination Act in the Northern Territory, but it is of utmost importance that such changes are accompanied by the immediate implementation of appropriate measures.

In order to realize the right to health for Indigenous communities, there is a need for significant, ongoing commitment and investment in a combination of both symbolic and practical measures to empower Indigenous communities.  I welcome the recent, unprecedented investment of $1.6 billion for Indigenous health, the Government’s support for an Aboriginal and Torres Straits Islanders’ Healing Foundation and the announcement of a new co-operative framework between community-controlled health services and the Federal and Territory governments, with a view to increasing Indigenous peoples’ control over planning, development and delivery of primary health care.  This approach further enhances the commitments that Australian Governments have already made to achieve Indigenous health equality.

It is of utmost importance that sufficient funding is allocated to Aboriginal community controlled health services which have a proven record of delivering health services to Aboriginals and Torres Strait Islanders.  Where mainstream services provide care to Indigenous communities, capacity and cultural competence needs to be upgraded.

In accordance with a rights-based approach I would like to highlight the need for a long-term national plan of action with clear targets, benchmarks and indicators to evaluate progress and guide State and Commonwealth priorities and actions.  Such a plan would necessarily include addressing underlying determinants of health (such as adequate housing and access to safe water and sanitation), social determinants of health, as well as racism.  Undivided support and implementation of the Close the Gap Campaign is crucial to ensuring capacity building and empowerment of Indigenous communities to take a leadership role in realizing the right to health for all Australians.

During my mission, I met many people of good will and incredible commitment, genuinely concerned about the human rights of all Australians.  However, this mission has confirmed for me that the realization of the right to health of some Australians, especially those in detention and Aboriginal and Torres Strait Islanders remains a significant challenge to the nation.  Guaranteeing human rights protections through supportive legal and policy frameworks alongside practical, targeted interventions that place empowerment and meaningful community engagement at their centre are necessary to ensure the right to health for all Australians.”

Anand Grover is the UN Special Rapporteur on the Right to Health.  The Special Rapporteur will present his final report on the mission to Australia to the UN Human Rights Council in June 2010.

The Brennan Report’s Unanswered Question: How to Protect Economic and Social Rights in a Dialogue Model

On Human Rights Day December 10 last year, the National Human Rights Consultation was launched. One year later, we await with anticipation the Federal Government’s response to the Brennan committee report which was issued after that consultation. Unfortunately, we may be waiting on a half-measure.

The biggest question is whether the Government will adopt a human rights Act, as the Brennan committee proposes. The report suggests that economic and social rights, as well as civil and political rights, be listed in such an Act. It reflects the fact that Australians had put, at the top of their list, rights to housing, health care and education.

Across cities and towns, websites and roundtables, the Brennan committee heard personal reports of how such rights are not sufficiently protected. And it heard Australians point out that that access to basic amenities (water, food, clothing, shelter), basic health care and education are just as important as civil and political rights (to a fair trial, for example, or to vote).

Yet the Brennan committee’s report rises only halfway to the challenge. While it recommends that economic and social rights be listed as rights for all in Australia, it fails to accord economic and social rights the protection it recommends for other human rights. In the face of serious stories of deprivation, and the institutional responses that their seriousness demands, the report does not begin to examine how such rights could be protected in anything more than symbolic terms. For example, the committee’s recommendations are curiously incoherent in relation to the work of federal public authorities. Ministers, public servants, and government contractors must give proper consideration to economic and social rights when making decisions. But, unlike the role given to civil and political rights, there is no requirement that public authorities act consistently with economic and social rights in the human rights Act proposed. This suggests that the process might become an exercise in lip service.

The Brennan committee has also downgraded the role of economic and social rights when it comes to protecting human rights in the courts. First, it has recommended that judges not be given powers to hear economic and social rights complaints. This was based on the tenor of the advice of the Commonwealth Solicitor-General, Stephen Gageler SC, who stated that judges are not capable of interpreting and enforcing certain economic and social rights because they do not ”involve the application of criteria or standards that are sufficiently definite”.

Yet in countries with legal systems similar to Australia, judges do have the capacity to make determinations about the obligations that flow from economic and social rights. If someone is rendered homeless by government policy in South Africa, for example, they may seek a declaration in court as to whether their right to housing has or has not been respected. This does not mean that the complainants are given housing on demand, but only that the court examines whether the government has acted reasonably.

If someone is denied access to health care in Canada, courts may ask whether there is something in the government’s policy that is actively obstructing the delivery of basic health care. If someone is denied access to education in Britain, the courts might ask a similar question. Or they might decide that the denial is justified because of other priorities on the part of government. These determinations fit a dialogue model for enforcing human rights that is, that courts do not substitute their own decision, but instead act as a backstop to bring the matter to the attention of the elected branches.

The Brennan committee itself has supported a dialogue model for human rights, but has suggested that it apply only to civil and political rights. Second, the Brennan committee has recommended that courts be prevented from considering economic and social rights when interpreting federal laws consistently with the proposed human rights Act. (Oddly, the committee alternatively recommends economic and social rights be included in the Acts Interpretation Act).

The recommendation as to the interpretive effect of economic and social rights in the proposed human rights Act is a deeply troubling aspect of the unwillingness to treat economic and social rights on a par with civil and political rights. It is troubling because it will leave the poor and vulnerable in an even worse position than before the consultation. This recommendation effectively ties the hands of judges who are currently free under the common law to consider Australia’s obligations with respect to economic and social rights. If judges cannot even consider economic and social rights when interpreting other rights, their decisions will be skewed.

For example, if a bank exercises a power of sale under a mortgage, and the mortgagor goes to court requesting that other assets be sold off before the family home, it might be relevant for the court to consider the importance of the right to housing, as the Victorian Supreme Court recently did. And if a judge is required to interpret the right to humane treatment for those in detention, which is supported under the proposed human rights Act, it will help the judge to have the benefit of jurisprudence on the right to health care.

In Australia, the Brennan committee failed to consider these examples. When we pause to reflect today on the future of human rights in Australia and whether that future includes a human rights Act, we need to consider how we might include a fairer model of protection for economic and social rights.

Dr Katharine Young is a recent graduate of Harvard University, and is currently research fellow at ANU’s Regulatory Institutions Network.  Renuka Thilagaratnam is also a research fellow at the ANU network.  This article first appeared in The Canberra Times, 10 December 2009