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National Human Rights Institutions

Commission Commission – General

National Human Rights Institutions

Statement Delivered by The Hon.
John von Doussa, Australian Human Rights and Equal Opportunity Commission

Agenda Item 18(b) at the 60th Session
of the UN Commission on Human Rights, 14 April 2004

Opening Remarks

The Australian Human Rights
and Equal Opportunity Commission (hereafter the Australian Human Rights Commission)
is one of the oldest National Human Rights Institutions in the Asia Pacific
region. It was originally established in 1981 as the Human Rights Commission
and then restructured in 1986 to become the Human Rights and Equal Opportunity
Commission. It is a founding member and a strong supporter of the Asia Pacific
Forum of National Human Rights Institutions.

As such we have been able
to share our experience in developing skills and jurisprudence with new National
Human Rights Institutions in the region. Our Commission through the Asia Pacific
Forum of Human Rights Institutions (APF) has played a key role in the establishment
and strengthening of the APF by providing both technical and financial support.
The APF has now matured into its own legal entity and the Commission continues
to assist in conducting training programs which form part of the Forum's Professional
Development Program. For example, Commission staff recently conducted human
rights investigation skills program for staff of the Human Rights Commission
of Sri Lanka.[1]

Some of the recent activities
which are especially important to our role of developing and promoting human
rights within Australia have also been of interest to other National Human Rights
Institutions in the Asia Pacific Region and elsewhere.

The Commission has completed
an extensive national inquiry into the welfare of children in immigration detention.
It looked at the adequacy and appropriateness of Australia's treatment of child
asylum seekers and the additional measures and safeguards required to protect
the human rights and best interests of these children. The inquiry will report
to the Australian Parliament shortly in 2004.

Acknowledging the systemic
disadvantage suffered by women over the course of their lives because of their
reproductive role, the Sex Discrimination Commissioner has published a paper
entitled, A Time to Value: Proposal for a national scheme of paid maternity
. The paper proposes a national scheme of paid maternity leave that
is entirely government funded and available to women in paid work at the time
of the birth of a child. The paper is under consideration by the government
in the budgetary context, and available on our website.[2]

The Aboriginal and Torres
Strait Islander Social Justice Commissioner, who is a member of the Commission,
has the unique role of keeping Indigenous issues before the federal government
and the Australian community to promote understanding and respect for the rights
of Indigenous Australians. A central function of the Commissioner is to report
annually to the Australian Parliament on significant social justice and native
title issues facing Indigenous Australians. The major issues covered by the
current Commissioner include: the progress of Reconciliation between Indigenous
and non-Indigenous Australians, greater Indigenous participation in decision-making,
domestic violence, and native title and the right to development.

The Commission has demonstrated
a strong commitment to its education function by developing on-line resources
for use in Australian schools. The resources cover a range of human rights and
discrimination issues and are all linked to curricula of each State and Territory.
In this way teachers can teach human rights principles and practices as part
of their daily teaching program. Over 3,700 educators subscribe to its human
rights education electronic mailing lists and the education section of the website
receives and average of 10,000 page views per month .

Australian Human Rights Commission's
domestic intervention power

The Commission is empowered
to intervene in Court proceedings. That power allows the Commission, with the
leave of the Court concerned, to make written and oral submissions on various
human rights and discrimination issues.

In very broad terms, the
Commission sees its role in interventions as twofold:

  • First, because the Australian
    legal system is heavily dependent upon precedent, interventions present an
    opportunity for the Commission to seek to develop Australian law in a way
    that is consistent with international human rights standards.
  • Second, and perhaps
    more importantly, the Commission's interventions play a significant part in
    human rights education. By intervening in Court proceedings, the Commission
    makes members of the legal profession, the judiciary and the broader public
    more aware of the way in which human rights standards might provide guidance
    on the resolution of domestic legal issues. In other words, interventions
    stand to have an impact beyond the disposition of the individual case.[3]

Mr Chairman, the Australian
Government has recently introduced into the Australian Parliament a bill which
would constrain and qualify the Commission's use of its intervention powers.[4]
The Commission has publicly opposed the bill, on the basis that it would significantly
undermine its independence in a manner which would be inconsistent with the
Paris Principles.[5] I do not propose to
make any more detailed comments on that issue at this time. The bill remains
before Parliament.

However, I think it is
pertinent to note in this forum that similar powers are held by many of the
National Human Rights Institutions participating in the ICC meeting later this
week. Indeed, in some States, National Human Rights Institutions are given powers
to commence proceedings for the enforcement of certain human rights obligations.

In my view, those commonalities
reflect a prevailing view that the inclusion of an independent human rights
perspective in domestic courts is an important tool for promoting and ensuring
compliance with the important international obligations shared by our respective
States. The utility of such powers was recently recognised in a Roundtable meeting
on National Human Rights Institutions and the Administration of Justice.[6]
The possession of those powers has also been identified as a benchmark of 'best
practice' for National Human Rights Institutions.[7]

Developments in Australia to combat
human trafficking

The Australian Human Rights
Commission welcomes the prominence that was given to the issue of human trafficking
in the high level segment that opened the sixtieth session of this Commission.
It is indeed one of the critical human rights concerns of our time.

The prevalence of human
trafficking in South Asia and the predominance of women and children among its
victims, is of particular concern to the Australian Human Rights Commission.

In this context, the Australian
Human Rights Commission has welcomed a number of initiatives recently undertaken
by the Australian Government to combat human trafficking both in Australia and
our region, including the Government's decisions to:

  • proceed with the ratification
    of the United Nations Protocol to Suppress and Punish Trafficking in Persons,
    especially Women and Children, Supplementing the United Nations Convention
    against Transnational Organised Crime;
  • establish an Inter-departmental
    Committee to consider and report on the federal Government's handling of trafficking
    issues (June 2003); and
  • provide AUD $20 million
    package over four years to address trafficking in women for sexual exploitation,
    with more emphasis on detection, investigation and prosecution of traffickers,
    as well as better support mechanisms and services for the victims (October

As the UN Guidelines on
Human Rights and Human Trafficking[8] recommend,
enforcing an adequate legal framework at the national level, and providing proper
protection and support to the victims of trafficking, are two of the critical
components for a successful national strategy to combat trafficking.

In keeping with the UN
Guidelines on Human Trafficking and Australia's criminal code, the Australian
Human Rights Commission has urged the Australian Government not to follow a
strategy of detention and deportation of the victims of trafficking. Not only
can this approach undermine the ability of victims to testify against their
traffickers, it also has the potential to compound the suffering and further
endanger the victims if they are forced to return to their country of origin
against their will.

We are hopeful that the
victim support program and changes to immigration processes included in the
Australian Government's new response package will assist in ensuring the safety
and security of victims of trafficking. These changes should also underscore
the need to respect their human rights and acknowledge their status as victims
- not perpetrators of crime.

We need to be mindful that
a critical factor that distinguishes trafficking from migrant smuggling is the
level of force, coercion and/or deception. Accordingly, it is essential to place
the protection of the human rights of the victims at the centre of any measures
to prevent and end trafficking.

To promote awareness and
debate on these issues, the Australian Human Rights Commission, together with
the Project Respect[9] and the Royal Melbourne Institute
of Technology, organised a national conference at the end of last year called
Stop the Traffic II.

The Australian Human Rights
Commission is now working with Project Respect to develop a joint training package
for State and federal government agencies dealing with trafficking, including
training for police and immigration officers.

We are also currently leading
a study tour to Thailand and Vietnam as part of the China Australia Human Rights
Technical Co-operation Program, which is focussing on the issue of trafficking
in South East Asia.

Enhancing the role of NHRIs through
ECOSOC accreditation

As the Director of the
Secretariat of the Asia Pacific Forum Secretariat has already noted, national
human rights institutions see a strong need for the United Nations, and the
Economic and Social Council (ECOSOC) in particular, to formally recognise their
unique status and involve them meaningfully in the human rights work of the

The UN Commission on Human
Rights has played an important role in this regard, informally inviting national
institutions to address this forum for several years.

The Australian Human Rights
Commission wishes to express its appreciation to the Chairperson and the Bureau
for maintaining this tradition, and for adopting the recommendation of the High
Commissioner for Human Rights to accord national institutions appropriate time
and attention at this session of the CHR.

Similarly, the Australian
Human Rights Commission wishes to express its appreciation to the Sub-Commission
for the Promotion and Protection of Human Rights for its recent decision to
accredit national institutions to the Sub-Commission in their own right and
to allow them to speak on any substantive agenda item.[10]

In this context, it is
also important to take note of the remarks of the Secretary-General in his report
to the Fifty-seventh Session of the General Assembly entitled Strengthening
of the United Nations: an agenda for further change
He gave an undertaking that "[t]he capacity of the United Nations to help individual
countries to build strong human rights institutions will be strengthened ....
The emplacement or enhancement of a national protection system in each country,
reflecting international human rights norms, should be a principal objective
of the [United Nations]" in recognition of the fact that "[b]uilding strong
human rights institutions at the country level is what in the long run will
ensure that human rights are protected and advanced in a sustainable manner."

Furthermore, the Secretary-General's
Second Reform Program heralds the development of stronger links between international
standards, the international human rights machinery,[13]
and national human rights institutions. It is an agenda which will build on
the critical role that national institutions already play in translating international
human rights norms into laws, policies and practices that ensure respect for
human rights at the local level.

These developments reflect
the growing recognition at the highest levels within the United Nations of the
need to formally engage with national human rights institutions, and better
facilitate their active involvement in international human rights fora.

National institutions are
also playing a valuable role in the development of human rights standards. Last
year, the Ad Hoc Committee on a Comprehensive and Integral International Convention
on Protection and Promotion of the Rights and Dignity of Persons with Disabilities
invited national human rights institutions to take up a position on its working
group to develop a draft text - the first time such an invitation has been made
to national institutions.

This invitation is an acknowledgement
of the value of a having an independent voice in the development of standards
and recognition of the professional and technical experience that national institutions
can bring to the negotiating table.

Mr Chairman, an amendment
to the Rules of Procedure of ECOSOC is indeed an ambitious goal.

However, there are examples
of non-State actors being granted the right to participate in international
affairs. The 1996 reforms to ECOSOC procedure eased the entry of non-governmental
organisations into that forum. Similarly, in 2002, the Inter-Parliamentary Union
was granted observer status with the United Nations General Assembly.[14]

By virtue of their adherence
to the Paris Principles, national institutions are a truly independent voice.
We are independent of both government and non-government organisations, and
require a formal status at the United Nations to reflect that reality.

Mr Chairman, in recognition
of the unique status of national human rights institutions and our role in the
promotion and protection of human rights at the national, regional and international
levels, the Australian Human Rights Commission respectfully requests that the
UN Commission on Human Rights recommend that ECOSOC provide national institutions
with the formal right of participation as a separate category of participant
in the functioning Commissions of ECOSOC and other relevant United Nations fora.

Enhancing the role of NHRIs in the
treaty body system

Mr Chairman, the Australian
Human Rights Commission would like to make a further recommendation - that is,
to strengthen the role of national institutions in the human rights mechanisms
of the United Nations through the treaty body reform process.

There are a variety of
ways in which this could occur. For instance, clear, formal structures could
be established within the working arrangements of the treaty bodies so that
national institutions that comply with the Paris Principles, and non-governmental
organisations with ECOSOC accreditation, could be invited to make independent
and identified contributions to State party reports.

Alternatively - or in addition
- national institutions and non-governmental organisations could be invited
to present supporting, alternate or additional information regarding State party
reports to a treaty body.

In both instances, the
treaty body would be better placed to assess and respond to the information
presented in State party reports.

In the case of the Australian
Human Rights Commission, one of our main statutory functions is to hear complaints
and assess compliance with the same human rights treaties that are monitored
by the treaty body system. Other national institutions have similar functions.
The expertise gained through the practice of applying international law to practical
situations, should be of assistance to the treaty bodies in their consideration
of alleged breaches within a State's domestic jurisdiction.

Mr Chairman, as you are
aware, the Australian Government recently invited the Australian Human Rights
Commission to contribute to the development of one of its State reports, and,
on a number of occasions, has sought our input on draft country reports.

This may be an example
that could be brought to the attention of other States parties to demonstrate
the feasibility of this recommendation and to encourage the development of procedures
to formalise this practice across the treaty body system.

With that suggestion, Mr
Chairman, I would like to conclude, and once again extend my thanks to you and
the Member States present, for being able to address you in this forum today.

1. Referred
to in the Secretary-General's report entitled Effective Functioning of Human
Rights Mechanisms: National Institutions and Regional Arrangements
at para 21, page 9.
3. The potential role of 'national institutions' litigation
efforts' was acknowledged in the conclusions
of the roundtable discussion entitled The Paris Principles: a reflection
held at the Palais Wilson on 10 and 11 December 2003 (annex II to the Secretary-General's
report entitled Effective Functioning of Human Rights Mechanisms: National
Institutions and Regional Arrangements
4. The Australian Human Rights Commission Legislation Bill 2003
5. See
for the Commission's submission to the Senate Legal and Constitutional Committee
Inquiry into the Bill and the Senate Committee's Report on the proposed legislation.

6. See Conclusions of Roundtable meeting on National Human
Rights Institutions and the Administration of Justice held 13-14 November 2003
in Copenhagen (annex I to the Secretary-General's report entitled Effective
Functioning of Human Rights Mechanisms: National Institutions and Regional Arrangements

7. See Commonwealth Secretariat 'National Human Rights Institutions
- Best Practice
' (2001) at p29.
8. Office of the High Commissioner for Human Rights, Recommended
Principles and Guidelines on Human Rights and Human Trafficking
, United
Nations, New York and Geneva, 2002.
9. An Australian non-governmental organisation working to prevent
sexual violence and raise awareness about human trafficking. For more information
10. As recorded in the Secretary-General's report entitled
Effective Functioning of Human Rights Mechanisms: National Institutions
and Regional Arrangements
E/CN.4/2004/101 para. 9, page 6.
11. A/57/387.
12. Ibid, page 2 (summary) and para. 50, page 12.
13. ie the treaty body system and the special procedures of
the Commission on Human Rights.
14. See A/Res/57/47.