The Secretariat
National Human Rights Action Plan
Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600
22 February 2011
Dear Secretariat,
National Human Rights Action Plan
The National Association of Community Legal Centres Inc (‘NACLC’) welcomes the opportunity to make this submission to the Attorney-General’s Department about its background paper A New National Human Rights Action Plan for Australia (the ‘Background Paper’). NACLC commends the Australian Government’s community consultation at this early stage in the development of a National Human Rights Action Plan (the ‘Action Plan’) and its commitment to continue engaging with NGOs as the Action Plan is finalised during 2011.
This letter and its annexure is NACLC’s feedback to the Attorney-General’s Department on the proposed methodology for developing an Action Plan, and our initial views on the minimum actions for inclusion in the Action Plan. This letter provides an overview of our initial comments on the Background Paper and Action Plan, with our specific recommendations for consideration by the Attorney-General’s Department contained in Annexure 1.
Human rights in Australia: the advancements
Since 2007, the current Australian Government has taken a number of welcome steps to advance Australia’s human rights legal and policy framework and has demonstrated a commitment to community engagement in the conceptualisation and implementation of the measures. These include the facilitation of the National Human Rights Consultation, ratification of the Convention on the Rights of Persons with Disabilities, the formal apology to Aboriginal and Torres Strait Islander Stolen Generations, endorsing the UN Declaration on the Rights of Indigenous Peoples, committing to the reduction of homelessness in the National Homeless White Paper, developing a Strategic Framework for Access to Justice in the Federal Civil Justice System and supporting the establishment of a National Congress of Australia’s First Peoples.
In Annexure 1, NACLC sets out a number of recommendations that are aimed at advancing these positive steps, including (for example) suggestions about implementation of key National Human Rights Consultation findings, supporting access to justice through increased funding of Aboriginal and Torres Strait Islander legal services, and practical measures to achieve the Government’s commitment to reducing homelessness.
Human rights in Australia: the challenges
There remains, however, a number of significant gaps between the Australian Government’s international human rights treaty obligations and its domestic law, policy and practice. The development of an updated Action Plan represents an important opportunity for the Australian Government to reflect on these challenges and, importantly, to articulate a road map for the progressive realisation of rights for all Australians.
A high level summary of NACLC’s priority concerns is listed below. These priority concerns are supported by recommendations for concrete action by Government (see Annexure 1).
· Australia is the only developed country that does not have a national charter or bill of human rights. A human rights charter or bill will ensure that Australia has a legal framework for the recognition and protection of the rights of all people, including the most marginalised and disadvantaged. It will also give effect to the community’s expectations regarding a framework for protection in Australia: 87% of the 35,000 written submissions to the National Human Rights Consultation that addressed the issue of statutory protection were in favour of a Human Rights Act.
· While NACLC welcomes the 2010-11 injection of funding into the community legal assistance sector, funding for this sector remains inadequate, and particularly so for Aboriginal and Torres Strait Islander legal services, Family Violence Prevention Legal Services and community legal centres in rural, regional and remote areas. Lack of access to legal services is a significant impediment to access to, and the administration of, justice and the right to a fair trial.
· There exist significant barriers to the full enjoyment by Aboriginal and Torres Strait Islander peoples of their human rights, including, but not limited to:
o the ongoing Northern Territory Emergency Response;
o onerous standards and burdens to recognition and protection of native title which denies many people of the right to access and control traditional lands and to take part in cultural life;
o lack of compensation and other reparation for the harm and suffering caused by previous government policies and programs with respect to the Stolen Generations, and the inadequate compensation for Stolen Wages;
o failure by Government to consult on matters affecting communities’ interests (particularly in relation to the ‘Closing the Gap’ initiatives) in a way that meets the standards in the Declaration on the Rights of Indigenous Peoples of meaningful engagement, participation and empowerment;
o deficiencies in access to justice mechanisms and in the administration of justice, including under-funding of legal and interpreter services, high rates of incarceration, deaths in custody, and police stop and search powers which result in disproportionate interferences with the rights of Aboriginal and Torres Strait Islander people; and
o economic and social disadvantage, including barriers to education and workforce participation, and the state of housing and homelessness, which was described by the UN Special Rapporteur on Adequate Housing as a ‘humanitarian tragedy’.
· Significant barriers for women to enjoy their human rights equally with men, particularly in relation to access to health, education and workforce participation, housing, political representation and a right to live free of violence or the threat or fear of violence. The situation is especially acute for Aboriginal and Torres Strait Islander women.
· While acknowledging the Government’s commitment to reforming aspects of the Migration Act 1958, mandatory immigration detention on the mainland and Christmas Island – including the detention of children – continues to operate. We have significant concerns about detainees’ lack of access to legal advice and information, adequate and appropriate health care and other services.
· The Marriage Act does not allow same sex partners to marry, and that there is no national law that prohibits discrimination, harassment and vilification on the grounds of sexual orientation and gender identity. This poses significant concerns about the rights of the LGBTI community.
In addition to the priority areas listed above, NACLC also makes recommendations to improve the human rights framework in relation to other key areas, including mental health care, poverty, counter-terrorism, housing and homelessness, culturally and linguistically diverse communities, people with disability and children (see Annexure 1).
Supporting the advancements and addressing the challenges through community consultation
NACLC acknowledges that the since 2007, the Australian Government has increased engagement with the community on the content, and implementation, of human rights initiatives. NACLC has taken every opportunity to participate in these processes and has accordingly made a number of submissions, both in its own right and as part of broader NGO coalitions, which set out our recommendations to improve the protection and promotion of human rights in Australia. These include submissions to the National Human Rights Consultation, UN treaty bodies (the Human Rights Council in relation to ICCPR and ICESCR, and to the Committee on the Elimination of Race Discrimination - and NACLC members have made their own submissions to the Committees for CEDAW and CROC), the Universal Periodic Review of Australia, to the Attorney-General’s Department and in response to parliamentary inquiries. Copies of all our submissions are available at the NACLC website (www.naclc.org.au) and hard copies are available on request.
NACLC’s human rights submissions are informed by:
· consideration of Australia’s existing legislative, policy and administrative framework for the protection and promotion of human rights as against the seven core international human rights treaties to which Australia is a party;
· the experience of our sector in assisting clients to achieve, or attempt to achieve, rights-based outcomes within the current framework for protection;
· the 2009 National Human Rights Consultation;
· reports of the Australian Human Rights Commission;
· submissions made by individual centres in our sector;
· the work of other NGOs; and
· concluding observations and recommendations of UN treaty bodies, Special Procedures and, for the purposes of this particular submission, the recent Universal Periodic Review of Australia.
On review of the materials above, and in consideration of the request for ‘initial’ views on the content of the Action Plan, NACLC annexes a list of 47 recommendations to improve the methodology for developing an Action Plan, as well as potential actions for inclusion in the Action Plan.
The recommendations are not new: they are a compilation of recommendations previously made by NACLC during the course of the various consultation processes listed above. Accordingly, we provide footnotes to the NACLC submission (individual or as part of larger coalitions) in which the recommendation was most recently made, and in which an evidence base for the recommendations is provided.
NACLC looks forward to its continued participation in the development of the Action Plan. Should the Secretariat have any questions or require clarification in relation to this letter or the annexed recommendations, please contact Louise Edwards (NACLC Policy & Projects Officer) at the first instance on or (02) 9264 9595.
Yours sincerely
Michael Smith
National Convenor
National Association of Community Legal Centres Inc
Annexure 1
NACLC Recommendations
Part 1: Proposed methodology for developing an Action Plan
In the preparation of this submission, NACLC had an opportunity to read the recommendations on procedural issues raised in the Background Paper made to the Secretariat by the Human Rights Law Resource Centre (‘HRLRC’) in their submission, Making Rights Real: A National Human Rights Action Plan For Australia (2011). NACLC endorses the six recommendations made by the HRLRC in relation to the proposed methodology for the development of the Action Plan. For the Secretariat’s convenience, these are reproduced below.
Recommendation 1: The HRLRC recommends that membership of the steering committee should be expanded to improve its expertise and credibility, and that the members represent some or all of the following groups:
(a) the vulnerable groups identified in the National Human Rights Consultation report, namely Aboriginal and Torres Strait Islander peoples, homeless people, people with mental illness, people from rural and remote areas, the ageing, children, asylum seekers;
(b) civil society including NGOs, trade unions and human rights educators;
(c) academics and civil society experts in indicators and monitoring; and
(d) other sectors of society as might be necessary or desirable.
Recommendation 2: The Government should establish other consultative and advisory mechanisms to ensure that the process includes broader civil society in developing particular areas of the Baseline Study and National Action Plan.
Recommendation 3: The Steering Committee should be chaired by the Attorney-General.
Recommendation 4: A steering committee with broad based membership should guide the process of a comprehensive Baseline Study that examines the current status of human rights in Australia. A Baseline Study should focus on human rights concerns that have been identified by the Human Rights Council and Special Procedures, United Nations treaty body reports on Australia and by relevant expert reports of the Australian Human Rights Commission, parliamentary committees and civil society. It should also include indicators that provide data as to current law and policies and the number of persons whose rights are affected.
Recommendation 5: The Baseline Study should establish a set of human rights indicators, identify the gaps in data and establish a system for collecting the necessary data and monitoring human rights over time.
The Baseline Study should establish a set of human rights indicators, identify the gaps in data and establish a system for collecting the necessary data and monitoring human rights over time.
Recommendation 6: In relation to recommendations from the UPR, Special Procedures, treaty bodies, the Australian Human Rights Commission and the National Human Rights Consultation Committee, the National Action Plan should explicitly identify those recommendations which the Government:
(a) is committed to implementing and the persons and entities responsible for implementation and a timeframe and milestone for doing so; and
(b) is unwilling or unable to implement in full and set out thorough and transparent reasons for their partial implementation or rejection.
Part 2: Potential actions for inclusion in the Action Plan
NACLC makes the following recommendations on the potential actions for inclusion in the Action Plan (grouped by theme):
Constitutional and legislative framework
Recommendation 7: A timetable for the enactment of a comprehensive and judicially enforceable Human Rights Act that implements Australia’s international human rights obligations (including civil, political, economic, social and cultural rights) into domestic law.[1]
Recommendation 8: Expansion of the function and powers of the Australian Human Rights Commission so that it meets the standards for proper performance under the Paris Principles and can effectively:
(a) consider (on its own motion) and report on the human rights implications of any existing or proposed federal, state or territory legislation;
(b) initiate investigations on its own motion and conduct those investigations appropriately, including using powers to enter and search premises and to compel the production of information and evidence where necessary;
(c) on its own motion, seek to enforce conciliation agreements;
(d) make binding codes of conduct or guidelines setting out the process of the resolution of complaints; and
(e) intervene in all proceedings where significant human rights issues arise.[2]
Recommendation 9: The mandate of the proposed Joint Parliamentary Committee on Human Rights be expanded to include the consideration, follow up and oversight of implementation of the recommendations and views of UN human rights mechanisms.[3]
Equality and non-discrimination
Recommendation 10: Assurance that the harmonisation of anti-discrimination laws is based on full and transparent consultation with relevant stakeholders, most importantly of individuals and groups affected by discrimination.[4]
Recommendation 11: Commitment to enact comprehensive equality legislation that addresses all prohibited grounds of discrimination, promote substantive equality and provide effective remedies against discrimination including systemic and intersectional discrimination.[5]