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Leading and influencing advocacy on human rights - Annual Report 2011-2012: Australian Human Rights Commission

The year in review

Leading and influencing advocacy on human rights

Informing human rights frameworks

Australian Human Rights Framework

The Australian Government released the Australian Human Rights Framework in
April 2010.

The Commission has been working closely with the Attorney-General’s
Department on all aspects of the Framework. In particular, we have provided
input into the development of a National Human Rights Action Plan, human rights
education initiatives, improved human rights protections including greater
parliamentary scrutiny, and consolidation of federal discrimination laws.

National Human Rights Action Plan

Early in 2012, we welcomed the opportunity to provide consultation on the
Exposure Draft National Human Rights Action Plan (NAP). The NAP is significant
because it will set out the priority areas and approaches for action by the
government.

The Commission had urged the Government to include all accepted
recommendations from the Universal Periodic Review process within the NAP. They
have publicly committed to do so, which should see greater connection between
international commitments and domestic systems for implementation.

Australia’s Universal Periodic Review on human rights

In addition to advocating for the inclusion of UPR recommendations in
Australia’s new National Action Plan on Human Rights, we also emphasized
that mid-term reporting on progress should be undertaken to the United Nations.

In March 2012, on behalf of the Australian Council of Human Rights Agencies,
the Commission President presented the first of what is envisaged to be an
annual implementation report on UPR outcomes to the UN Human Rights Council. The
Office of the High Commissioner for Human Rights has since cited
Australia’s processes, in particular the cooperation and efforts of the
Commission and NGOs, as a best practice example of engagement.

The UPR process has led to a renewed focus by governments on human rights
issues that had been neglected for some time, such as the forced sterilisation
of women with disabilities.

Stronger human rights scrutiny

On 4 January 2012, the Commission welcomed the enactment of the Human
Rights (Parliamentary Scrutiny) Act 2011
. This legislation requires all new
bills and disallowable legislative instruments to be accompanied by a
‘Statement of compatibility with human rights’. Statements will
assess compatibility against the seven main United Nations human rights treaties
to which Australia is a party.

The Act also establishes a Parliamentary Joint Committee on Human Rights
– the first Commonwealth Parliamentary Committee dedicated solely to human
rights scrutiny, which will be established by a resolution of appointment in the
Autumn 2012 Parliamentary sittings.

Under the legislation, the Commission President also becomes an ex-officio
member of the Administrative Review Council.

For some time, we have advocated for the establishment of an early assessment
framework for legislation. We have also advocated for an independent legal
advisor to the Joint Parliamentary Committee on Human Rights who would ensure
statements of compatibility and focus on their improvement over time. We have
also recommended close working relationships between relevant government
departments on these processes.

In May, the Commission executive met with the Joint Committee to discuss
these issues. We continue to be involved in research and international exchanges
that aim to develop procedural options for stronger human rights scrutiny in
Australia.

Complaint of discrimination in recruitment on the basis of criminal
record

The complainant applied for the role of traffic officer with the respondent
local government authority through the respondent labour hire company. The
complainant claimed his application was not successful because he was convicted
of theft more than 20 years ago.

On being advised of the complaint the respondents indicated a willingness to
try to resolve the matter through conciliation. The complaint was resolved with
an agreement that the local government authority offer the complainant the role
for which he applied.

 

Building a diverse, harmonious Australia

National Anti-Racism Partnership and Strategy

In February 2011, the Government announced that the Race Discrimination
Commissioner would lead the development of a national anti-racism strategy as a
key initiative under Australia’s new multicultural policy, The People
of Australia.

The aim of the National Anti-Racism Strategy is to promote a clear
understanding in the Australian community of what racism is and how it can be
prevented and reduced.

The strategy is being developed through a partnership forum that includes
government representatives from the Attorney-General’s Department, the
Department of Immigration and Citizenship, the Department of Families, Housing
Community Services and Indigenous Affairs, the Australian Multicultural Council
as well as the Commission. From the community, the Partnership includes the
Federation of Ethnic Communities’ Councils of Australia and the National
Congress of Australia’s First Peoples.

Consultations for the development of the strategy commenced in March 2012,
with a discussion paper, online survey, submission process and national
consultations. During this process, 1584 online surveys and 80 submissions were
received through the online submission template. The online surveys were
anonymous and the online submissions could be made anonymously. In addition, 123
formal submissions were received.

Between March and May, we hosted 23 national community consultations for the
strategy, some of which were facilitated by state Anti-Discrimination
Commissions.

In April, the biennial Race Relations Roundtable discussed the strategy,
recognising that there are different challenges facing each cultural group in
Australia.

The strategy will be launched in August 2012 with implementation to occur
over three years from 2012-2015.

‘A good anti-racism campaign would give the public the opportunity to
learn the effects of racism on Aboriginal, refugee and marginalized people, with
the opportunity to react appropriately to the situation, rather than with
hostility, denial or apathy.’

(Submission to the National Anti-Racism Strategy consultation
process)

Alleged racial discrimination in the provision of goods and services

Four young Aboriginal women claimed that staff at the respondent supermarket
abused them, gestured at them and did not permit them to enter the store because
of their race. The complainants claimed staff subsequently accused them of
stealing.

The respondent company denied unlawful discrimination and said there may have
been a misunderstanding arising from the removal of another individual from the
store. The respondent acknowledged there may have been miscommunication about
who should be permitted to enter the store, but denied this was based on the
complainants’ race.

The complaint was resolved with an agreement that the company write to the
complainants expressing regret for any humiliation and distress they experienced
at the store, conduct a cultural awareness training refresher course at the
store and pay the complainants a total of $12,500.

 

‘[There are] important areas the DDA doesn’t clearly address.
Things like, people with intellectual or psychiatric disability having an
inadequate range of choices of services and accommodation options, and being
forced to accept choices made for them. Obviously we would hope that the NDIS
can make a difference to all that.’

The DDA 20 Years On: Successes, Lessons and Future Directions, 3rd
Annual National Disability Summit: Paving a future direction for disability
policy reform in Australia. Melbourne 27 June 2012 (Commissioner Innes)

 

National Disability Strategy

The Commission continues to assist the Council of Australian Governments with
implementation of the National Disability Strategy. Through working groups, we
have provided input to an implementation plan for the Strategy and have
advocated for consultation with the disability sector throughout
discussions.

In welcoming the funding approval for the National Disability Insurance
Scheme, we highlighted some of the areas where tangible action is required.

These areas include:

  • setting measurable employment targets
  • the need for independent review mechanisms
  • ensuring that accessibility features are built into universally designed
    goods, services, equipment and facilities
  • providing for obligations under the Convention on the Rights of Persons
    with Disabilities
    inclusion of the insurance law principle of
    subrogation.

Promoting women’s leadership

Early in 2011, the ASX Corporate Governance Council implemented a diversity
policy that requires all publicly listed companies in Australia to set gender
diversity targets.

To assist companies in implementing the diversity recommendations, the
Australian Council of Human Rights Agencies, of which the Commission is a
member, issued a guide on complying with anti-discrimination legislation for
federal, state and territory jurisdictions.

In 2011, the Australian Council of Human Rights Agencies issued guidelines to
ASX members for structuring gender diversity measures, as special measures, in
compliance with federal and state/territory anti-discrimination laws. Companies
are able to utilise the special measures provisions to implement programs for
meeting gender diversity targets, which are required to be set under the ASX
Corporate Governance Council’s diversity-related reforms, introduced in
January 2011.

In March 2012, we presented at the Local Government Managers Forum focusing
on women in leadership.

In April 2010, the Male Champions of Change initiative commenced, in which
the Sex Discrimination Commissioner brought together some of Australia’s
most influential and diverse male CEOs and Chairpersons to advocate for
workplace change in relation to gender equality issues. The group has built
significant momentum during 2011-12. In October 2011, the Male Champions of
Change launched best practice research entitled Our experiences of elevating
the representation of women in leadership
, which featured case studies from
across the Australian corporate sector.

Respecting the rights of Aboriginal and Torres Strait Islander peoples

Legislative changes

The Commission has continually advocated for greater community consultation
in regard to the new stronger futures legislation and funding package that was
introduced in June 2012.

The pending lapse of the Northern Territory Emergency Response Intervention
legislation in August 2012 provided the opportunity for building a greater
awareness of human rights issues among lawmakers.

In February 2012, we made a submission identifying the need for longer
timeframes during community consultations with Aboriginal communities, and
pointing out that the consultations should be conducted in traditional languages
where required.

We have consistently pointed to the values enshrined in the Declaration for
the Rights of Indigenous Peoples. The Declaration encourages the use of
culturally relevant language where possible, particularly when considering
policy and legislation.

In June, we also supported reform of Native Title, including changes to
income and capital gains tax implications for Native Title holders.

Complaint of racial discrimination in employment

The complainant, who is Aboriginal, worked as an apprentice with the
respondent company. The complainant claimed his supervisor made racially
offensive remarks about him including “speaking of black s**t, here
comes one now”
, did not allow him to undertake a training course and
did not allocate work to him because of his race. The complainant said that
since finishing his apprenticeship, his applications for work with the company
had been unsuccessful.

The company advised that it took disciplinary action against the
complainant’s supervisor in relation to the alleged comments and this
included providing him with a written warning and requiring him to undertake
additional equal employment opportunity training. The company said that the
complainant was aware of the process to make an internal complaint but did not
raise any concerns about allocation of work or other opportunities.

The complaint was resolved with an agreement that the company would provide
the complainant with a statement expressing regret for any distress he
experienced and pay him $5,000 general damages. The company also agreed to
undertake a formal review of the complaint procedures related to its equal
employment opportunity policies.

Social Justice and Native Title reports

The 2011 Social Justice and Native Title Reports of the Aboriginal and Torres
Strait Islander Social Justice Commissioner were focused on addressing lateral
violence.

The Social Justice Report also acknowledged the political milestones for
Aboriginal and Torres Strait Islander peoples represented by the National
Congress of Australia’s First Peoples and the beginning of a conversation
around constitutional recognition.

Sadly the report also recognizes areas where we haven’t achieved as a
nation. Although it has been 20 years since the Report on the Royal Commission
into Aboriginal Deaths in Custody, there are more Aboriginal and Torres Strait
Islander people in prison today than there was when the Royal Commission
reported in 1991.

An evaluation of the Social Justice and Native Title Reports, conducted by
the Commission with an external consultant early in 2012, provided strong
evidence that the reports were widely used by stakeholders for their own
advocacy work. This was supported by stakeholder feedback and the citation of
the reports in political and public debate.

‘Constitutional reform would not have been on the agenda if it
wasn’t for the work of the Commissioner and the Social Justice
Report’

(Social Justice and Native Title Reports Evaluation Project.)

Constitutional Reform

The Commission and the Social Justice Commissioner in particular, have long
been advocating for the inclusion of Aboriginal and Torres Strait Islander
Peoples in the Australian Constitution. It is an issue that today has bipartisan
support.

In 2010, the Australian Government appointed an Expert Panel to report on the
options for constitutional change and approaches to a referendum. Commissioner
Gooda was a member
of the Panel that reported to the Government in January
2012.

The recommendations for constitutional change were:

  • to remove the section that allows States to disqualify people from voting on
    the basis of race
  • to change the section that allows the Commonwealth to make laws regarding
    people of a particular race, so that the Commonwealth can make laws regarding
    Aboriginal people in the context of acknowledging the continuing relationship to
    traditional lands and waters and the need to secure the advancement of
    Aboriginal and Torres Strait Islander peoples
  • a new section prohibiting racial discrimination
  • a section that recognises Aboriginal and Torres Strait Islander languages as
    part of our national heritage.
  • Recommendations regarding the process of a referendum, included that a
    single question about a package of amendments should be put to the public and
    that the referendum should only proceed when it is likely to be supported by all
    major political parties and a majority of State governments.

Close
the Gap

Since 2006, Australia’s peak Indigenous and non-Indigenous health
bodies, NGOs and human rights organisations worked together to achieve health
and life expectation equality for Australia’s Aboriginal and Torres Strait
Islander peoples. This is known as the Close the Gap Campaign.

The Commission has hosted the secretariat for national Close the Gap
initiatives since its inception.

In August 2011, the National Health Leadership Forum (NHLF) became the
national representative body for all Aboriginal and Torres Strait Islander
health peak bodies. The NHLF emerged out
of and now leads the Close the Gap
Campaign.

On 3 November 2011, the Ministers for Health and Ageing and Indigenous Health
announced a partnership approach for the development of an Aboriginal and Torres
Strait Islander Health Equality Plan with the goal of achieving health equality
by 2030. The NHLF is central to this partnership approach.

‘I participated in training last year and I did not understand what
they were talking about. Now I understand it more and can discuss it more
easily. This has been the best thing that has ever happened to us. Yet another
said: Other people with disability know about rights but didn’t
understand. After training they understand.’
(Disabled Persons
Organisation representative, Tonga)

 

Working internationally

In March 2012, Commission President Catherine Branson joined fellow National
Human Rights Institutions, endorsing a statement made to the UN Human Rights
Council that addressed discriminatory laws and practices and acts of violence
against individuals based on their sexual orientation and gender identity.

The statement followed the first ever UN report on the issue, released in
December 2011. It revealed that, in many cases, even the perception of
homosexuality or transgender identity put people at risk. It also revealed that
violations occurring around the globe included killings, torture, arbitrary
detention, the denial of rights to assembly, and discrimination in employment,
health and education.

During 2011-12, we chaired the Commonwealth Forum of National Human Rights
Institutions. In this capacity, in addition to the work identified below, we
developed a new website for the Forum to enhance information sharing between
members and support their advocacy efforts.

Working with People with Disabilities in Pacific Island countries

We are committed to promoting and protecting the rights of people with
disability and supporting efforts, nationally and internationally, to realise
the purpose and objectives of the Convention on the Rights of Persons with
Disabilities
.

Central to these efforts is building the capacity of both people with
disability and DPOs to:

  • promote and protect the rights of people with disability and
  • ensure people with disability are actively involved and consulted in the
    development and implementation of all legislation and policies associated with
    implementing the Convention.

In previous years, we have been funded to assist governments and DPOs of 11
countries in the region in this regard. This year, we extended training to
government and representatives of DPOs of the two additional Pacific Island
countries of Palau and the Federated States of Micronesia.

Additionally, as a member and Chair of the Commonwealth Forum of National
Human Rights Institutions, we delivered a three day training program in Uganda.
The program was dedicated
to building the capacity of DPOs and national
human rights institutions to work together and promote and protect the rights of
people with disability in Burundi, Kenya, Rwanda, South Sudan, Tanzania and
Uganda.

Human rights technical cooperation

The Commission works closely with other national human rights institutions to
learn and share ideas and experiences, particularly through the Asia Pacific
Forum of National Human Rights Institutions.

We also undertake bilateral international activities as part of the
Australian Government’s development program run by the Australian Agency
for International Development (AusAid). The most substantial of these is the
Human Rights Technical Assistance Programs in China and Vietnam. The programs
are currently under review and being re-negotiated with AusAid.

Other international work

September 2011

  • The Commission President travelled to Bangkok for the annual meeting and
    biennial conference of the Asia Pacific Forum.

October 2011

  • The President represented the Commission in South Korea at the Asia Pacific
    Forum Business and Human Rights Conference.
  • The Commission coordinated the communiqué from the Commonwealth Forum
    of National Human Rights Institutions to the Commonwealth Heads of Government
    Meeting (CHOGM) held in Perth. The communiqué addressed some important
    issues for strengthening the protection and promotion of human rights in
    Commonwealth countries.

February 2012

  • The Commission coordinated a submission from the Commonwealth Forum of
    National Human Rights Institutions to the Australian Government’s
    consultations on a Charter for the Commonwealth. The submission emphasised the
    importance of human rights as core values of the Commonwealth.
  • The Sex Discrimination Commissioner attended the 56th session of the United
    Nations Commission on the Status of Women in New York and advocated for the
    rights of women in rural, regional and remote areas experiencing violence, as
    well as the rights of women with disabilities. We also advocated for addressing
    unpaid work and multiple disadvantage and for gender responsive policy and
    continued our advocacy for independent participant status for
    NHRIs.

March 2012

  • A meeting of the Commonwealth Forum of National Human Rights Institutions
    was held in Bracknell, UK. Australia assumed the Chair of the Forum at this
    meeting for a two year period.
  • The President represented the Commission at the meeting of the International
    Coordinating Committee of NHRIs in Geneva, Switzerland and met with the UN High
    Commissioner for Human Rights.
  • Also in Geneva, the President attended the annual meeting of the
    Commonwealth Forum of National Human Rights Institutions (held on the margins of
    the International Coordinating Committee of NHRIs meeting). Topics discussed at
    the meeting included the role of NHRIs in combatting discrimination on the basis
    of sexual orientation.

April 2012

  • The President and Commission staff travelled to Laos and Vietnam for the 3rd
    Australia- Laos human rights dialogue and the 9th Australia- Vietnam human
    rights dialogue respectively. The dialogues discussed women’s rights,
    minority rights, disability rights, land rights, freedom of expression, legal
    sector reform and religious freedom.
  • The Commission provided training in statutory investigation and conciliation
    for the staff of the Hong Kong Equal Opportunities Commission on a fee for
    services basis.

May 2012

  • The Disability Discrimination Commissioner travelled to Uganda for a
    capacity building workshop with other NHRIs and DPOs.
  • The Social Justice Commissioner participated in the UN Permanent Forum on
    Indigenous Issues.

‘The organisations we visited are committed to protecting disadvantaged
groups such as women, people with disability, indigenous people, which made us
realise that China still has a lot to do in protecting the rights and benefits
of these groups. So our future policy making should pay more attention to this
aspect, we should also call on our communities to be involved in order to meet
their needs, including legal need, so as to fully protect their rights’.

(Chinese delegate in Australia, to examine the role of NGOs in protecting the
rights of vulnerable citizens)

 

Complaint of disability discrimination in the provision of goods, services
and facilities

The complainant, who has a vision impairment, claimed she had difficulty
obtaining information about which movies at the respondent cinema were screened
with audio description because the cinema’s website was not compatible
with or accessible to her screen reading software.

On being advised of the complaint, the respondent indicated a willingness to
try to resolve the complaint by conciliation. The complaint was resolved when
the respondent agreed to create a separate menu option on its telephone
information line to enable customers to obtain information about which sessions
are audio described. The respondent also agreed to update its website to ensure
that customers using a screen reader are able to easily obtain the required
information.