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2 – Further specific measures that would better protect human rights in
Appendix 2: Further specific measures that would better protect human rights in Australia
- Throughout the main body of this submission, the Commission recommends five
major reforms to Australia’s system for the protection and promotion of
human rights, namely:
- a Human Rights Act for Australia
- streamlined and strengthened anti-discrimination legislation
- constitutional reforms to remove racially discriminatory provisions and
protect the fundamental principle of equality in Australia
- better human rights education in Australia
- a stronger role for the Australian Human Rights Commission
- In the Commission’s view, the implementation of any one of these
reforms will help to better protect and promote human rights, and a combination
of these reforms will achieve even greater results.
- However, neither one nor all of those reforms will solve all of
Australia’s human rights problems. In some cases, there will need to be
additional and specific measures to address long-standing human rights issues.
- The Commission has over two decades of experience working on the major human
rights issues in Australia. Drawing on this experience, Part B of this
submission includes a very brief list of some examples of the ways in which
human rights are insufficiently promoted and protected in Australia.
- This Appendix discusses, in more detail, some of the examples mentioned in
Part B of the main submission and other examples of systemic human rights
problems in Australia.
- Where possible, this Appendix hypothesises about how these human rights
problems might be, or might have been, more effectively addressed if the
Commission’s suggested reforms were a reality. It also notes where
additional measures would need to be introduced.
- The human rights issues covered in this Appendix include those relating
- Aboriginal and Torres Strait Islander peoples
- asylum seekers, refugees and migrants
- people trafficking
- counter-terrorism legislation
- gender equality
- protection against discrimination on the basis of sexual orientation, sex
identity and gender identity
- the National Strategy for implementation of the Convention on the Rights of
Persons with Disabilities (Disability Convention)
- the right to vote.
- The material in this Appendix is largely a compilation of the
Commission’s recent comments to the UN Human Rights Committee and the UN
Committee on Economic, Social and Cultural Rights. It is not a
comprehensive discussion of all human rights problems in Australia. Rather, it
provides a summary of some key areas of concern to the Commission and of how
those concerns might be addressed.
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and Torres Strait Islander peoples
- The Aboriginal and Torres Strait Islander Social Justice Commissioner has
specific functions to report annually on the impact of laws and policies on the
human rights of Aboriginal and Torres Strait Islander peoples (Indigenous
peoples). Since 1993, the annual Social Justice Report and Native
Title Report (which began in 1994) have assessed the human rights impact on
Indigenous peoples across a vast array of areas. These include, inter alia,
education, health, housing, employment, land rights, heritage protection,
climate change, criminal justice and violence.
- It is envisaged that a national Human Rights Act would provide improved
protection in order to remedy the breaches of human rights that have been
identified by the Social Justice Commissioner over time.
between Indigenous and non-Indigenous people in Australia
- Indigenous peoples continue to experience significant inequalities in the
realisation of their human rights. Inequality in the right to life is of
particular concern. Between 1996 and 2001, there was an estimated difference of
17 years between Indigenous and non-Indigenous life expectancy in
- Underlying this inequality in the right to life is a range of social and
economic inequalities including lower incomes, higher rates of unemployment,
poorer educational outcomes and lower rates of home ownership. For example, in
2001 the unemployment rate for Indigenous peoples was 20% – three times
higher than the rate for non-Indigenous
- Many of these existing inequalities can be attributed to the impact of
previous laws and policies that have discriminated against Indigenous peoples
and which have not provided them with equal life chances. This has resulted in
systemic barriers to full participation in Australian society.
- The Commission notes that a national Human Rights Act would have a critical
role to play in identifying the systemic impact of new laws and policies on
Indigenous peoples. As outlined in the body of this submission, the Commission
also believes that a Human Rights Act should be accompanied by amendments to
Australia’s Constitution to guarantee racial equality and prohibit
discrimination into the future.
- The Commission notes that at the Indigenous Health Equality Summit in 2008,
the Australian Government made accountable and measureable commitments to
achieving equality in health status and life expectancy between Indigenous and
non-Indigenous Australians by 2030. The Council of Australian Governments has
similarly committed to closing the life expectancy gap within a generation,
halving the mortality gap for children under five within a decade and halving
the gap in reading, writing and numeracy within a decade.
- Having committed itself to applying this human rights based framework to
address Indigenous health, the Australian Government should take steps to
equally apply a human rights based framework to all aspects of Indigenous
affairs policy, programs and service delivery. This should include the Northern
Territory Emergency Response.
- The Commission believes that a vital step in setting up a human rights
framework is to introduce an Australian Human Rights Act that requires public
authorities delivering public services and programs to act compatibly with human
rights. This will significantly impact on policy-making in relation to
Indigenous peoples and has the potential to achieve better outcomes from service
delivery to Indigenous peoples.
Nations Declaration on the Rights of Indigenous Peoples and self-determination
- The Commission welcomes the Australian Government’s statement of
support for the United Nations Declaration on the Rights of Indigenous
Peoples (Declaration on the Rights of Indigenous
Peoples). The statement notes that:
The Declaration recognises the legitimate entitlement of Indigenous
people to all human rights – based on principles of equality, partnership,
good faith and mutual benefit...
Australia’s existing obligations under international human rights
treaties are mirrored in the Declaration's fundamental principles.
The Declaration needs to be considered in its totality - each provision as
part of the whole.
- The Declaration on the Rights of Indigenous Peoples provides a framework for
the protection of the rights of Indigenous peoples to be applied consistently
with Australia’s existing human rights obligations. It does not create new
rights – it merely describes how existing rights are relevant and apply to
Indigenous peoples in accordance with their cultures, identity and way of
- One of the most important human rights for Indigenous Australians is the
right to self-determination. With the adoption of the Declaration on the Rights
of Indigenous Peoples, there is now international recognition that the right to
self-determination applies to Indigenous peoples.
- Consistent with this, it is notable that the UN Committee on Economic,
Social and Cultural Rights has also recognised that Indigenous peoples’
rights to culture and identity are protected under article 1 (the right to
self-determination) of the International Covenant on Economic, Social and
Cultural Rights (ICESCR).
- In its statement of support for the Declaration on the Rights of Indigenous
Peoples, the Australian Government also stated that:
Article on self-determination, the Declaration recognises the entitlement of
Indigenous peoples to have control over their destiny and to be treated
Article 46 makes it clear that the Declaration cannot be used to impair
Australia’s territorial integrity or political unity.
We want Indigenous peoples to participate fully in Australia’s
Australia's Indigenous peoples must be able to realise their full potential
in Australian and international affairs.
We support Indigenous peoples’ aspiration to develop a level of
economic independence so they can manage their own affairs and maintain their
strong culture and identity.
Australia is a longstanding party to the International Covenant on Economic,
Social and Cultural Rights and the International Covenant on Civil and Political
Rights and supports their aims and principles.
- The Declaration provides a firm basis for advancing greater recognition and
protection of Indigenous peoples’ rights to self-determination in
Australia. The Commission looks forward to working with the government on
mechanisms for implementing the Declaration within Australia. Strengthening the
powers of the Commission so that it can take the Declaration into account in
exercising its human rights functions, as well as providing greater resourcing
and capacity to the Commission, would contribute to the future operation of the
Declaration in Australia.
- The establishment of a new national Indigenous representative body is
another government initiative that is critical to both the implementation of the
Declaration and the advancement of self-determination of Indigenous peoples in
Australia. By July 2009, the Steering Committee convened by Aboriginal and
Torres Strait Islander Social Justice Commissioner, Tom Calma, will present a
preferred model for a new national Indigenous representative body to the
Australian Government, with recommendations to establish an interim body from
Racial Discrimination Act and the Northern Territory Emergency
- The Commission is concerned that the application of the Racial
Discrimination Act 1975 (Cth) (RDA) continues to be suspended in
relation to the Northern Territory Emergency Response
- The legislation enacted for the NTER declares itself, and any acts done
pursuant to it, to be a special measure for the purposes of the RDA and exempt
from the operation of Part II of the Act. It also declares that, where relevant,
it is exempt from Northern Territory and Queensland anti-discrimination
- The Social Justice Report 2007 assessed the NTER’s compliance
with Australia’s human rights obligations and found that:
- the government did have an obligation to promote and protect the right of
Indigenous peoples to be free from family violence and child abuse
- the NTER legislation is inappropriately classified as a ‘special
measure’ under the RDA because of the negative impacts of some of the
measures on Indigenous people and the absence of adequate consultation or
consent by Indigenous peoples to the measures
- the NTER legislation contains a number of provisions that are racially
- some provisions raised concerns for the compliance with human rights
obligations (for example, the lack of access to review of social security
matters and the compulsory acquisition of land without just
- In accordance with the International Covenant on Civil and Political Rights
(ICCPR), the promotion and protection of one right, namely freedom from violence
and abuse, cannot be undertaken in a discriminatory manner, nor can it be at the
expense of other rights, including the right to procedural fairness and an
effective remedy, equality before the law and the right to
- The Social Justice Report 2007 also found that, despite being
entitled a ‘national emergency’, the NTER does not meet the
requirements of a ‘public emergency’ as articulated in article 4 of
the ICCPR. Further, the extent of the derogation allowed for in article 4 is
limited. The NTER is not a situation that justifies introducing measures that
place restrictions on the rights of Indigenous people, such as overriding the
principles of non-discrimination or safeguards for procedural fairness.
- The UN Committee on the Elimination of Racial Discrimination, the UN Human
Rights Committee and the UN Committee on Economic Social and Cultural Rights
have all expressed concerns about the
- A formal, independent review of the NTER legislation and its operation has
been conducted by a Review Board. The Review Board’s report, released in
October 2008, found that the NT Intervention had made some positive changes in
the Northern Territory, for instance in terms of increased police presence in
communities, measures to reduce alcohol-related violence, improving quality and
availability of housing, the health and wellbeing of communities and education.
The Review Board noted that local communities saw the significant government
investment under the NT Intervention as ‘an historic opportunity wasted
because of its failure to galvanise the partnership potential of the Aboriginal
community’. The inclusion
of racially discriminatory measures in the NTER was also seen as a significant
failure that contributed to a lack of faith and trust from Indigenous peoples in
the Australian Government’s approach.
- In May 2009, the government announced its final response to the review of
the NTER. This included a budget
commitment of $807.4 million funding over three years, with specific measures in
the areas of: welfare reform and employment, law and order, education, families,
child and family health, housing and land reform and coordination. Importantly
the government confirmed its commitment to introduce legislation in 2009 to make
the RDA and the Northern Territory anti-discrimination legislation applicable to
the NTER legislation.
- The government also released its ‘Future Directions for the Northern
Territory Emergency Response Discussion Paper’ on 21 May
2009, which it intends to use as
the basis for consultations with 73 prescribed communities on NTER measures.
These consultations are necessary steps to make sure the NTER does not continue
to discriminate against Aboriginal people on the basis of their race, and to
improve any continuing measures, through the participation of Indigenous
- While the government’s response addresses several of the
recommendations outlined in the Social Justice Report 2007 and the NTER
Review Board’s report, aspects of some of these recommendations have not
been adopted or are not fully addressed, for instance in areas such as income
management, CDEP, funding arrangements, governance, and resetting the
relationship between the government and Aboriginal people.
- A Human Rights Act that preserved parliamentary supremacy would not have
prevented the introduction of the NTER. However, it would have required the
Australian Government to publicly justify why it believed the only way to
achieve the legitimate objectives of the NTER was to suspend the RDA. By making
the government more accountable for deciding to breach human rights, a Human
Rights Act could help build a culture of respect for human rights.
- The only way to guarantee that future Australian Governments will not
suspend legal protection from racial discrimination to enact discriminatory
legislation is to amend the Australian Constitution to guarantee racial equality
and prohibit discrimination. Such a clause would prevent legislative
protections against racial discrimination from being overridden or suspended by
the federal Parliament.
- Any constitutional change can only occur with the support of the Australian
people. As detailed in the body of the submission, the Commission supports a
comprehensive national inquiry into protecting the right to equality in the
family support and protection of children and young people
- As highlighted by reports such as the Little Children are Sacred Report (NT) and the Breaking the Silence Report (NSW), child abuse, child
sexual abuse and family violence are critical issues for Indigenous
communities. An Indigenous child
is six times more likely to be involved with the statutory child protection
system than a non-Indigenous child, but four times less likely to have access to
child care or preschool service that can offer family support to reduce the risk
of child abuse.
- In recognition of Indigenous children’s rights to maintain a
connection to their family, community and culture, all Australian jurisdictions
recognise the Aboriginal Child Placement Principle (ACPP). The ACPP states that
Indigenous children should be placed with Indigenous carers. Children should
first be placed with the child’s extended family; if that is not available
they should be placed within the child’s community; failing that they
should be placed with other Indigenous people. However, the overriding priority
is still the best interests of the child.
- The rate of Indigenous children placed in accordance with the ACPP varies
across states and territories. It is as high as 84% in NSW but drops to 48% in
the Northern Territory and only 36% in
Tasmania. Continued capacity
building and Indigenous engagement is needed to ensure that the ACPP remains a
guiding principle in Indigenous child protection.
- A new National Framework for Protecting Australia’s Children
2009-2020 was endorsed by the Australian Government and all state and
territory governments in April 2009. The framework provides for an integrated
response to child protection across all governments. The framework identifies
several measures for ensuring Indigenous children are supported and safe in
their families and
- As part of the development of this framework, the government has looked to
introduce income management schemes, where welfare incomes are quarantined or
deducted subject to the enrolment and participation of children in schools.
These measures raise a number of human rights concerns, including the right to
- The Commission has recommended against the introduction of such schemes as
part of the national child protection framework. The Commission has called for
the government to adopt a human rights-based approach to the framework that
would uphold the best interests of the child, non-discrimination, and the
child’s right to life and right to participation.
- The Commission’s report, Ending Family Violence and Abuse in
Aboriginal and Torres Strait Islander Communities highlights the need for
support for Indigenous community initiatives and networks, human rights
education, government action, and robust accountability and
- Arguably, some forms of income management could be undertaken consistent
with the right to social security. For example, it is likely that the model
proposed by the Cape York Institute in its report From hand out to hand
up contains the appropriate procedural guarantees and participatory
requirements to enable those proposed measures to potentially be characterised
as a special measure and as consistent with the right to social
- The provisions on income management in the NTER legislation could be amended
to ensure they are compatible with obligations arising from the right to social
- As noted above, in May 2009, the Australian Government announced
consultations to review income management arrangements under the NTER to ensure
that they are consistent with human rights. The outcomes of this process will
need to ensure the right of individuals and groups to participate in
decision-making processes that affect their exercise of the right to social
- In the National Framework for Protecting Australia’s Children
2009-2020 the government indicates that it will evaluate income management
trials in WA, NT and Cape York over
1.5 Indigenous health
- The Close the Gap Campaign and the closing the gap commitments of all
Australian governments have the potential to be a turning point in Indigenous
affairs in Australia. The
Australian Government has already made substantial investments, backed up by
emerging health system reforms. The Australian Government has elevated the
urgency of dealing with the Indigenous health crisis to a national priority.
- The groundwork has now been laid to make inroads into this longstanding
issue. It is, however, a task that will take a generation. And there remains
significant work to be done. This includes:
- the creation of a new partnership between Indigenous Australians and their
representatives and Australian governments to underpin the national effort to
achieve Indigenous health equality
- the development of an appropriately funded, long-term national plan of
action to achieve Indigenous health equality, in part to coordinate the many
different streams of activity underway that have the potential to contribute to
- the establishment of adequate mechanisms to coordinate and monitor the
multiple service delivery roles of governments that impact on Indigenous health,
and to monitor progress towards the achievement of Indigenous health
- The adoption of targeted approaches to Indigenous health equality was
substantially progressed by the establishment of the Close the Gap Campaign for
Indigenous Health Equality. This is an historic event, being the first time that
such authoritative and influential peak bodies and key organisations from
Australian civil society have worked together in partnership in such a sustained
manner towards a single goal – Indigenous health equality.
- It should be noted that recent revisions of the Indigenous life expectancy
gap from 17 years to around 10 years underscore the importance of improved data
collection. A firm data
foundation is essential to plan and implement for Indigenous health equality by
- A key element of the Close the Gap Campaign has been the development of
National Indigenous Health Equality Targets over a period of six months by three
working groups. A notable Indigenous person with extensive health experience led
each working group.
- The targets represent the ‘industry perspective’ on what needs
to be done and the time frame for doing so in relation to achieving Indigenous
health. This unprecedented body of work is intended to be the basis of
negotiations with Australian governments as to the main elements and time frames
of a national plan to achieve Indigenous health equality by 2030.
- The integration of the Close the Gap targets into policy settings remains an
ongoing concern of the Campaign partners. The targets in the Statement of
Intent, for example, are still not reflected in the government’s Overcoming Indigenous Disadvantage Framework.
- The Campaign partners have a further concern in relation to partnership and
the achievement of Indigenous health equality. While the Campaign partners have
been encouraged by the commitment to partnerships including by the Prime
Minister in the apology to Australia’s Indigenous
peoples there are few signs that the Australian Government is otherwise embracing a
partnership approach. In part, this could be because the Australian Government
is waiting for the establishment of the national Indigenous representative body
as a vehicle for partnership.
- Particularly in relation to a national primary health care strategy,
Aboriginal representative bodies must be active participants in development and
implementation. Aboriginal community controlled health services must be involved
in health planning at the local and regional level with the National Aboriginal
Community Controlled Health Organisation, and State/Territory NACCHO Affiliates
at national and jurisdictional levels respectively. Where relevant, additional
partners would include the Indigenous health professional bodies and a national
Indigenous representative body when it is established.
- The recent progress made in Indigenous health policy is an excellent example
of the way in which policy can be developed within a human rights framework.
This kind of approach would be more likely if Australia had a Human Rights Act.
housing and homelessness
- Indigenous people are likely to experience homelessness because of their
high levels of social and economic disadvantage. According to the 2006 census,
there were 4116 Indigenous people who were homeless on census
night. In every state and
territory, Indigenous clients of Supported Accommodation Assistance Program
services were substantially over-represented relative to the proportion of
Indigenous people in those
- In 2006, the UN Special Rapporteur on Adequate Housing identified an
Indigenous housing crisis in Australia. He argued that the following factors
have led to a ‘severe housing crisis’ which is likely to worsen in
coming years as a result of the rapid rate of population growth in Indigenous
- lack of affordable and culturally appropriate housing
- lack of appropriate support services
- significant levels of poverty
- Further factors that contribute to Indigenous homelessness include:
- many Indigenous people enter poverty and homelessness as a result of poor
educational and employment opportunities
- Indigenous people are vulnerable to homelessness when they are forced to
move in order to access employment and income support
- the removal or temporary suspension of welfare benefits which can increase
the chances of an Indigenous person becoming homeless
- inadequate housing which can severely impact on the health of residents
- a lack of culturally appropriate
- The UN Committee on Economic Social and Cultural Rights has noted its
concern that the incidence of homelessness has increased in Australia over the
last decade, mainly affecting Indigenous peoples, and has recommended the
government implement the recommendations of the UN Special Rapporteur on the
Right to Adequate Housing contained in the report of his mission to
- In addition to wider housing reforms to address homelessness and housing
affordability, including for Indigenous peoples in urban and regional
areas, the Council of Australian
Governments’ National Partnership Agreement on Remote Indigenous
Housing took effect on 1 January 2009. The Agreement provides for $1.94
billion over 10 years to improve the living standards of Indigenous peoples in
remote areas by reducing overcrowding, homelessness, poor housing conditions and
severe housing shortages. Under this Agreement the Australian Government will
provide funding for remote Indigenous housing. The state and Northern Territory
governments will be responsible for delivering the reform package, including the
provision of housing and associated tenancy management
- This is complemented by the Indigenous Remote Service Delivery National
Partnership which will provide $291.2 million over six years to improve
access to services by Indigenous peoples in 26 identified remote Indigenous
- However, the government has deemed provision of housing and other services
under the National Partnership Agreement on Remote Indigenous Housing to
be conditional upon Indigenous land owners providing 40 year leases over their
lands to the government, despite communities’ reluctance to provide such
leases; and transferring tenancy agreements from Indigenous community housing
providers to public housing providers.
- Indigenous community housing providers such as Tangentyere Council have
argued for a community housing system accredited against the National Community
Housing Standards in preference to public housing management for the Alice town
camps. In the absence of an
agreement being reached, the government has indicated it will use the NTER
legislation to compulsorily acquire the lands against the communities’
- Such conditions on access to the right to adequate housing undermine the
rights to land and culture and the right of Indigenous peoples to participate in
decisions about their land and development as recognised in the Declaration on
the Rights of Indigenous
- There are also concerns that insufficient government funds and resources may
be allocated for meeting the need for housing and services in remote Indigenous
communities other than the 26 identified communities. This concern arises both
under the federal policy and the Northern Territory Government’s Homelands / Outstations policy – Working Future – Fresh ideas /
- Under its Homelands / Outstations policy the NT Government has indicated it
will focus on the establishment of 20 towns across the Territory, with
government services to outstations/homelands in most cases involving a form of
remote delivery, based from the closest or most accessible hub town. The NT
Government has indicated it will not provide funding to construct housing on
outstations in the NT.
- The Laynhapuy Homelands Association has expressed concerns that ‘the
decision not to fund new housing for our homelands condemns Yolngu to further
overcrowding, declining living conditions and ultimately the extinguishment of
our traditional culture’. The concern is that people will be forced to move from their traditional lands
into the 20 hub towns in order to access basic rights to housing, health and
language, culture and arts
- The National Indigenous Languages Survey Report shows that of the
original estimated 250 Indigenous languages, only about 145 exist today and the
majority of these are critically
- A major finding of the report is that Australia’s Aboriginal and
Torres Strait Islander languages are critically endangered and urgent action is
required to preserve them for the future. The vast majority of the 145
Indigenous languages that are still spoken or partially spoken are severely
endangered. Less than 20 languages are strong and not currently on the
endangered list. This situation
was noted with concern by the UN Committee on Economic, Social and Cultural
- Indigenous languages and cultures are closely intertwined. Safeguarding
languages preserves Indigenous culture and identity.
- Currently, the promotion and protection of Indigenous languages and cultures
is not sufficiently prioritised by the Australian Government. If languages are
to survive, genuine commitment and policies are required for language
maintenance and language revitalisation programs at all levels of
Australia’s educational institutions. This means making schools culturally
familiar and appropriate for Indigenous children and embedding Indigenous
perspectives across the curriculum.
- Additionally, the Commission is concerned that the protection of Indigenous
cultural and intellectual property by the mainstream legal system is inadequate.
Instruments such as the Copyright Act 1986 (Cth) that provide legal
protections for the life of the artist plus fifty years are not equipped to
protect knowledge systems and artistic designs that are thousands of years old.
Nor are they capable of recognising and protecting collective ownership of
artistic content and products, which is common in Indigenous
- A Human Rights Act could provide protection for the cultural rights
recognised in article 27 of the ICCPR and article 15 of ICESCR. This would mean
that that the government would need to consider the cultural rights of
Indigenous peoples when developing new laws and policy. This would help redress
the historical and continuing failure to recognise and protect Indigenous
- While some small improvements have been made in the education outcomes of
Indigenous students in Australian schools, the disparity of outcomes for remote
students compared with their urban counterparts remains unacceptable. The
provision of quality education services in remote Australia continues to be of
- The vast majority of the Australian continent is defined as remote or very
remote. In 2006 there were 1,187 discrete Indigenous communities in Australia
with 1,008 of these communities in very remote areas. Of the very remote
communities, 767 had population sizes of less than 50 persons. In 2006 there
were 69,253 Indigenous people living in very remote
- Remoteness has obvious implications for school education, including limiting
access to early childhood services, primary and secondary schools as well as
other resources such as libraries and information technology. In remote areas,
road access may be limited during times of the year and prevent access during
the wet season for months on end. If internet access is available in remote
Australia, it is usually via satellite, offering a dial-up service with slow
- Indigenous children in remote areas have, on average, much lower rates of
school attendance, achievement and retention than Indigenous children in urban
areas and other Australian
children. In remote areas of the
NT, only 3 to 4% of Indigenous students achieved the national reading benchmark
- In May 2009, the UN Committee on Economic, Social and Cultural Rights
expressed concerns about the delivery of education to Indigenous peoples. It
The Committee notes with concern the persistence in the
State party of disparities in access to the educational system for indigenous
peoples, including those living in remote areas, compared with the rest of the
population, as well as the deficient quality of education provided to persons
living in remote areas, in particular indigenous peoples. It regrets that access
to pre-school education is not equally guaranteed throughout the State party.
(art. 2.2 and 13)
- The Commission is of the view that a Human Rights Act would provide a
benchmark against which the right to education could be regularly assessed and
would ensure more consistent and improved accountability mechanisms for
governments. It would provide a more systemic approach to protecting the
economic, social and cultural rights of the most vulnerable sectors of the
- The Commission is also concerned about the threat to bilingual education for
Aboriginal students. Of the 9,581 schools that exist in Australia today, nine
schools are bilingual schools, instructing students in their first Indigenous
- In 2009 the NT Government implemented a policy-making it mandatory for
schools to begin each school day with four hours of English literacy. The impact
of this policy will be felt most markedly by the bilingual schools. In fact, the
four hours of English is likely to destroy the bilingual education model.
Dismantling bilingual education potentially endangers some of the remaining
- Bilingual education is an example of Indigenous controlled education.
Students are instructed in their first language, learning educational concepts
in their own language and learning their first literacies in their
mother-tongue. English language and literacies are gradually introduced in the
- Bilingual education is considered to be one way to keep Indigenous language
and culture alive. Bilingual programs are supported by local Indigenous
community members with the aim of protecting and promoting Indigenous languages
and culture through school education.
- Evidence from an Australian study demonstrates marginally better English
literacy outcomes for students from bilingual schools at the end of primary
school compared with students from non-bilingual schools with similar languages,
demography and contact
- The Commission supports the protection and promotion of bilingual education.
A human rights approach to policy development could require consideration of
whether education promoted and protected the cultural rights of Indigenous
people and the criminal justice system
- The Commission is concerned about the continued high levels of incarceration
of Indigenous people, particularly women and children, and the
over-representation of Indigenous people in prisons and juvenile justice
facilities. For example:
- Indigenous prisoners represented 24% of the total national prisoner
population at 30 June 2008
- Indigenous adults are 13 times more likely to be imprisoned that non-
- Indigenous young people are 23 times more likely to be in juvenile detention
that non-Indigenous young people, and make up roughly half of the national
- The UN Committee against Torture recently recommended that the Australian
Government reduce overcrowding in prisons, implement alternatives to detention,
abolish mandatory sentencing and prevent and investigate deaths in
- In light of the continued over-representation of Indigenous people,
particularly women, in the criminal justice system, there is a pressing need for
the continued implementation of the 339 recommendations contained in the Report
of the Royal Commission into Aboriginal Deaths in Custody, including any
- The Commission is also concerned about developments under federal law which
undermine the role of Aboriginal customary law. These developments prevent a
court from taking into account ‘any form of customary law or cultural
practice’ as a mitigating factor in sentencing, or in the context of
- The Commission opposes this for a number of reasons, including the
importance of recognising the right of minorities to enjoy their own culture,
which applies to Indigenous peoples and imposes a positive obligation on
governments to protect their
- People who are convicted of criminal offences should be appropriately
punished. This is best achieved by ensuring that courts can consider the full
range of factors relevant to the commission of the offence, including a
person’s culture. The right to enjoy culture cannot be enjoyed at the
expense of the rights of others and must be consistent with other human rights
in the ICCPR and the rights of women and children as protected by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC).
- The Commission notes that although the NT Parliament made changes to the
mandatory sentencing laws for property offences effective from 2001, the Sentencing Act 1995 (NT) still contains forms of mandatory sentencing in
cases involving offences of
- The Commission is concerned at the number of outstanding recommendations of
the Bringing them home report of the National Inquiry into the Separation
of Aboriginal and Torres Strait Islander Children from Their Families, which
documents the experiences of the Stolen Generations, who were forcibly removed
from their families under the guise of
- This report recommended that reparation be made in recognition of the
history of gross violations of human rights, and that the van Boven
principles guide the reparation measures, which should consist of:
- acknowledgment and apology
- guarantees against repetition
- measures of restitution
- measures of rehabilitation
- monetary compensation.
- The Commission welcomed the Australian Government’s apology to the
Stolen Generations in February 2008 for:
laws and policies of
successive Parliaments and governments that have inflicted profound grief,
suffering and loss on these our fellow Australians ... especially for the
removal of Aboriginal and Torres Strait Islander children from their families,
their communities and their
- However, the other recommendations for reparation remain outstanding,
including the provision of healing programs for the Stolen Generations and their
families, and monetary compensation.
- The only compensation scheme established specifically for the Stolen
Generations to date has been in Tasmania. Redress schemes have been established
in Queensland and WA for children who have experienced abuse in state care, but
they are not Stolen Generations specific.
- The issue of ‘stolen wages’ has contributed to the entrenched
and inter-generational disadvantage experienced by Indigenous people in
Australia, and the consequent discrimination and inequality that contravenes the
non-discrimination and equality provisions in articles 2 (1) and 26 of the
- The stolen wages compensation schemes are a critical means for Indigenous
people to access their right to remedy for the human rights violations they
experienced, as required under article 2 of the ICCPR, and as the UN Human
Rights Committee recommended in
- Stolen wages compensation schemes have been established in Queensland and
NSW to compensate Indigenous people for the withholding, non-payment and
underpayment of wages in the control of government. Investigations and
consultations on the nature and extent of stolen wages issues in WA are also
- The right to an effective remedy remains unfulfilled in areas where
compensation schemes have not been established. The Commission notes the need
for stolen wages compensation schemes to be established in other states and
territories as appropriate.
- The Commission also has significant concerns about the adequacy and fairness
of the regimes established, particularly by the Queensland Government, to
address injustices inflicted on Indigenous peoples through the underpayment of
- In December 2006 the Senate Standing Committee on Legal and Constitutional
Affairs published Unfinished business: Indigenous stolen wages, which
recommended the following to strengthen the existing compensation schemes:
- governments provide unhindered access to archives for the purposes of
researching the stolen wages issue as a matter of
- funding be made available for education and awareness in Indigenous
communities about, and preliminary legal research, into stolen wages
- These recommendations have not been adopted.
1.12 Native Title system reform
- The Native Title Act 1993 (Cth) (Native
Title Act) is the primary mechanism through which Indigenous peoples access
their cultural rights to land. The Act was intended to advance and protect
Indigenous people by recognising their traditional rights and interests in the
- However, in practice, there are a number of limitations of the native title
system, including the following:
- The courts have construed the Native Title Act as requiring that Indigenous
people claiming native title prove traditional laws and customs at sovereignty
and their continued observance generation by generation until
today. One of the cruel
consequences is that the greater the impact of colonisation on Indigenous
peoples (for example, if they were forcibly removed from their land), the less
likely that they will be able to prove native title under Australian law.
- Indigenous peoples bear the burden of proof and strict rules of evidence
generally apply. The result is that Indigenous peoples whose culture is based on
the oral transmission of knowledge must prove every aspect, including the
content of the law, and custom and genealogy, back to the date of sovereignty
(up to almost 200 years) in a legal system based on written evidence.
- Only the traditional laws and customs that existed at the time of
sovereignty and which are still observed and practiced today will be recognised.
There is little room for revival of cultural traditions or adaptation of the
today. Similarly, the rights recognised are severely limited in terms of how Indigenous
peoples can utilise any resources associated with that land for economic or
- Recent reforms to the native title system do not reach far enough to
overcome the limitations of the system or enable the full realisation of rights
to land and culture.
- Further, the native title system is in a state of
gridlock. Between 1 January 1994
(when the Native Title Act came into effect) and 31 December 2008, 117
determinations of native title were made, while over 500 claims are still
waiting to be determined. Litigated determinations take an average of nearly
seven years. On current estimates it will take another 30 years to finalise the
- The system is in a state of gridlock for a number of reasons. It is in part
due to the technical and aggressive attitude of government parties in an
adversarial setting. Another relevant factor is the inadequate funding by
government for Indigenous peoples pursuing their
rights. Although some amendments
to the system were made in 2007, and some are currently being considered by
government, these measures do not adequately improve the process.
- The Commission is concerned that while the system continues to progress so
slowly, Indigenous peoples’ rights are being denied and Indigenous elders
1.13 Land rights
under the Northern Territory Emergency Response
- The NTER legislation has allowed the Australian Government to acquire a wide
range of interests in land, including:
- compulsory acquisition of five-year leases over certain lands
- control of leases for town camps in Darwin, Katherine, Tennant Creek and
Alice Springs including the power to forfeit the lease and resume the land
- power to acquire all rights, titles and interests in the land subject to a
town camp lease
- rights in construction areas, and buildings and infrastructure constructed
on Aboriginal land.
- The NTER legislation significantly reduces the protection of Aboriginal
peoples’ rights and interests in their traditional lands as provided by
both the Aboriginal Land Rights (Northern Territory) Act 1976 (NT) and
the Native Title Act. However, this legislation also impacts on the ability of
those Aboriginal people affected to leverage economic, social and cultural
development through the future acts regime.
- Any native title rights and interests, to the extent that they may occur
over the area covered by a five year lease, are not expressly preserved by the
legislation. While the legislation states that the non-extinguishment principle
applies to the granting of a five year lease and other specified acts as
determined by the NTER legislation, the legislation does ensure the suspension
of the future acts regime.
- Under a Human Rights Act, proposed legislation that impacts on the land
rights of Indigenous peoples would need to be accompanied by a statement which
explains what impact the legislation will have on human rights. This process of
justification would mean that the implications for human rights would be firmly
before the Parliament when making decisions about amendments such as those
participation in environmental management
- Indigenous peoples have had limited influence and participation in policies
which affect their rights to land and waters, such as policies on environmental
management, cultural heritage and climate change. For example, while the
Australian Government has been developing a policy for climate change, and water
use and access, there has been minimal consultation or discussion with
- A Human Rights Act that recognised Indigenous cultural rights and the right
to self-determination, as well as economic, social and cultural rights, would
mean that those rights would be considered when law and policy is developed. The
Commission believes that this increased focus on human rights would lead to
improved consultation with Indigenous peoples about issues of environmental
management and policy.
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seekers, refugees and migrants
- Over the last decade, Australia’s treatment of asylum seekers and
other people in immigration detention has repeatedly breached Australia’s
international human rights obligations. This has damaged Australia’s
international reputation and, more importantly, the lives of many individuals
- The Commission has done extensive work on immigration detention over the
past decade, including investigating complaints from individuals in
detention; conducting annual
inspections of detention
facilities; making submissions to parliamentary
inquiries; and conducting two national
- Most recently, the Commission released its 2008 report about conditions in
Australia’s immigration detention
facilities. The key
recommendations of the report included the following:
- Australia’s mandatory detention law should be repealed.
- The Migration Act 1958 (Cth) (Migration Act) should be amended so
that people are only detained when it is necessary. Detention must be for a
minimal period, be reasonable and be a proportionate means of achieving at least
one of the aims outlined in international
- The Migration Act should be amended so that the decision to detain a person
is subject to prompt review by a court; periodic independent reviews of the
ongoing need to detain an individual are undertaken; and a maximum time limit
for immigration detention is specified.
- Minimum standards for conditions and treatment of persons in immigration
detention should be set out in law and should reflect international human rights
- People should not be held in immigration detention on Christmas Island. All
unauthorised arrivals who make claims for asylum should have those claims
assessed through the refugee status determination process on the Australian
- The Australian Government should implement all of the recommendations of the
National Inquiry into Children in Immigration
- If Australia had a Human Rights Act, many of the breaches of human rights
identified by the Commission may have been prevented. A Human Rights Act would
mean that any future changes to Australia’s immigration laws would need to
be assessed against the human rights protected by the Human Rights Act.
detention laws can result in arbitrary detention
- Australia’s system of mandatory detention has led to the prolonged and
indefinite detention of many people. The Commission has repeatedly urged the
Australian Government to repeal the provisions of the Migration Act that have
led to indefinite and arbitrary detention in breach of the
ICCPR. Mandatory detention has
also led to other human rights breaches including the breach of a child’s
right to be detained only as a matter of last resort and for the shortest
appropriate period of time.
- While detention may be acceptable for a short period in order to conduct
security, identity and health checks, currently the mandatory detention
provisions of the Migration Act empower immigration officials to detain people
for unlimited periods of time. There is no way for the Australian courts to
review whether a person’s detention is arbitrary in breach of
- The Commission’s 2008 report highlighted that, despite improvements in
the physical conditions of immigration detention facilities over the past few
years, the most critical issue remains: some people are still detained for
prolonged and indefinite periods, without knowing when they will be released or
whether they will be allowed to stay in Australia when that happens. It is well
established that detaining people in these circumstances leads to negative
impacts on their mental health.
- The Commission is also concerned that children continue to be held in some
immigration detention facilities, both on the mainland and on Christmas Island.
For children and their families, the psychological effects of being detained can
be devastating, and these facilities are inappropriate for anything but the
briefest of periods.
- On 29 July 2008, the Minister for Immigration and Citizenship, Chris Evans,
announced new directions for Australia’s immigration detention
system. The new directions
provide for a shift in policy, away from the requirement that all unlawful
non-citizens be detained, towards a presumption that detention will occur as a
last resort and for the shortest practicable period.
- While the Commission has welcomed this development, it remains to be seen
how the new directions will be implemented in practice, and in particular how
the changes will be enforced or guaranteed.
should be subject to judicial review
- The Commission has raised repeated concerns that the Australian courts
cannot review the legality of a person’s immigration detention on the
grounds that it breaches the prohibition on arbitrary
- The Australian courts have no authority to order that a person be released
from immigration detention on the grounds that the person’s continued
detention is arbitrary, in breach of the ICCPR. This is because under Australian
law it is not unlawful to detain a person (or to refuse to release a person)
contrary to the ICCPR.
- The UN Human Rights Committee has said that the right to challenge the
‘lawfulness’ of one’s detention under article 9(4) of the
ICCPR must include the opportunity to challenge detention which is
- The Commission believes that any decision to detain a person should be
subject to prompt review by a court; there should be periodic independent
reviews of the ongoing need to detain an individual; and there should be a
specified legal limit on the period of time for which immigration detention is
- These safeguards should be entrenched in legislation. If Australia had a
Human Rights Act they would also need to be interpreted and applied consistently
with the rights protected by a Human Rights Act.
should not be detained in excised offshore places like Christmas Island
- Australia’s excision legislation creates a dual processing system for
asylum seekers that, in the Commission’s view, is unjustified. People who
arrive in excised offshore places are unable to make a valid visa application
under the Migration Act unless the Minister exercises his non-compellable
discretion to permit them to do
so. Further, people who arrive
at excised places are not able to have their cases reviewed in the Refugee
Review Tribunal or the Australian
- Until recently, detainees on Christmas Island were not entitled to legal or
migration assistance. In July 2008, the Minister indicated that asylum seekers
on the island would be given access to publicly funded assistance, as well as
access to independent review of negative refugee status assessment
- The Commission welcomed these developments. However, it has ongoing concerns
given the lack of lawyers and migration agents on the island; the lack of
transparency surrounding the non-statutory refugee status assessment process
applied on the island; and the lack of clarity regarding the system for
conducting independent merits reviews.
- The Commission remains concerned that the practice of processing asylum
seekers offshore undermines Australia’s international obligations under
the Convention Relating to the Status of
Convention), the ICCPR and the CRC. The lack of legal safeguards increases the
risk of a person genuinely in need of Australia’s protection being
returned to a place of persecution, and can also lead to breaches of
are no legal guarantees that detainees will be treated humanely in detention
- The Commission has long been concerned about the absence of adequate
mechanisms to ensure that immigration detainees are treated in accordance with
Australia’s international human rights obligations. In particular, the
Commission remains concerned that, despite its repeated recommendations,
Australian law does not set out minimum standards for conditions and treatment
of immigration detainees.
- Since 1998, immigration detention services have been provided by private
sector providers under contract to the Australian Government. Detention service
providers are required to meet service requirements, including conditions for
immigration detainees, as part of their contractual obligations. However, the
Commission considers that these have provided insufficient guidance on what
service providers must do to ensure that conditions comply with human rights
standards. Further, these service requirements do not provide people in
immigration detention with a cause of action or other effective remedy for
breaches of their human rights.
- Currently, if a person in immigration detention makes a complaint to the
Commission alleging that the way they have been treated in detention breaches
their human rights (for example, their right not to be subjected to cruel,
inhuman or degrading treatment), the Commission can investigate the complaint.
If the Commission finds that a breach of human rights has occurred, the
Commission can table a report in federal Parliament. However, the
Commission’s recommendations are not legally binding and may be ignored by
- A Human Rights Act could impose a legal obligation on the Australian
Government, and private companies that run detention services on behalf of the
Australian Government, not to act inconsistently with the human rights of people
in immigration detention. Under a Human Rights Act, a person could seek a
legally enforceable remedy for a breach of their human rights while in
- The Commission has repeatedly recommended that a system of complementary
protection should be introduced to protect people who do not fall within the
definition of refugee under the Refugee Convention, but who nonetheless must be
protected from refoulement under the ICCPR, the CAT or the
- Australia does not have an effective system of protection for these asylum
seekers, who may risk death, torture or cruel, inhuman or degrading treatment or
punishment if returned. Instead, their claims can only be considered after they
have been rejected at each stage of the refugee determination process and then
seek a personal intervention by the Minister. Although the Minister may consider
Australia’s obligations under other human rights treaties, the
Minister’s decisions in these cases are non-compellable and
- In May 2009, the Australian Government committed to provide $4.8 million
over four years to implement a system of complementary protection for people to
whom Australia has non-refoulement obligations. This announcement is welcome and
the Commission looks forward to seeing this system implemented as soon as
- In 2007, the Australian Government introduced a formal citizenship test as
part of the requirements for applying for Australian citizenship. The test aims
to verify that applicants have demonstrated English competence and understanding
of Australian values.
- The Commission recognises the right of the Australian Government to
introduce a formal citizenship test that is pursuant to a legitimate aim,
proportionate to achieving this aim, and based on reasonable and objective
- However, the Commission is concerned that the particular test introduced may
disadvantage certain categories of people, particularly refugees and
humanitarian applicants, and deprive them the right to equal treatment under
articles 2 and 26 of the ICCPR.
- The Commission believes that the formal citizenship test for migrants and
refugees who wish to become Australian citizens should be assessed against human
rights standards, in order to ensure that it does not have a discriminatory
- The Commission believes that humanitarian applicants should not have to
demonstrate English language competency or an understanding of Australian values
in order to find permanent refuge and settlement in Australia. It would also be
inappropriate to require family reunion applicants, such as applicants for aged
parent or spouse visas, to pass language or values
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- While slavery, sexual servitude and the trafficking of people for
exploitation are crimes under Australian law, these practices still occur in
Australia. The Commission believes that the Australian Government
Anti-Trafficking Strategy needs a greater focus on the human rights of people
who are trafficked to Australia.
- The government funded Victim Support Program is only available to victims of
people trafficking who are assessed by the Australian Federal Police as eligible
for a visa under the People Trafficking Visa Framework. The Commission is
concerned that this framework fails to protect the rights of trafficked people
who are not of interest or assistance to police. The Commission expressed these
concerns to a Department of Immigration and Citizenship review of the visa
framework in 2008.
- People who have been trafficked to Australia are non-citizens and, in many
cases, are in Australia without a valid visa. Access to victim support,
culturally appropriate assistance and legal advice is vital to help trafficked
people recover from their experience and understand their legal rights.
- The Commission hopes that the outcome of the 2008 review of the visa
framework will mean that people who have been trafficked to Australia will
receive support and protection on the basis of need. This is
consistent with the recent recommendation by the United Nations Human Rights
Committee that Australia should ‘provide equal assistance and protection
to all victims identified regardless of their participation or otherwise in
criminal proceedings against
- Australia’s response to trafficking shows that insufficient attention
to human rights in the law- and policy-making process can result in inadequate
protection of human rights. For example, a recent report found that government
departments had not considered the policy implications of cases where alleged
victims of trafficking were not mentally fit to decide whether to assist police,
‘nor developed a way forward on managing mentally impaired victims, to
ensure that their rights and interests are adequately
- Similarly, insufficient efforts have been made to ensure that people who
have been trafficked to Australia have access to effective remedies outside the
criminal justice system. To date, the Commission is only aware of one award of
compensation to a person who was trafficked to
Australia. The Commission urges
the Australian Government to explore legal options to improve the ability of
people who have been trafficked to seek
- These weaknesses in Australia’s response to trafficking could have
been avoided if there had been a greater focus on the human rights of trafficked
people at the time anti-trafficking laws and polices were first introduced. This
might have occurred if Australia had a Human Rights Act at the time.
- As Australia begins to respond to emerging issues such as labour trafficking
outside the sex industry and trafficking for forced marriage, new laws and
policies should be formulated within a human rights framework. A Human Rights
Act could make sure that human rights are placed at the centre of efforts to
address and prevent trafficking.
- Australia also needs to develop ‘best practice models for identifying
and responding to possible victims of labour trafficking, including
investigating the effectiveness of responses based on education about rights,
rather than victims’.
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- Since the terrorist attacks in the United States on 11 September 2001, the
Australian Government has introduced over 40 new counter-terrorism laws. The
Commission has repeatedly raised concerns that a number of the new laws may
breach, or allow for the breach of, Australia’s human rights obligations.
- The Commission believes the best way to ensure that future efforts to
protect Australia’s national security comply with Australia’s human
rights obligations is to introduce a Human Rights Act.
safeguards against human rights violations
- The Commission is concerned that a number of Australia’s
counter-terrorism laws fail to minimise the risk of human rights violations
occurring. Two examples are outlined here, relating to the right to liberty and
security of the person, and the
right of a detainee to be brought before a judicial officer to seek a ruling on
the lawfulness of their
- The Anti-Terrorism Act 2004 (Cth) introduced special powers for the
Australian Federal Police (AFP) to arrest a person suspected of committing a
terrorism offence, and detain that person for the purpose of investigating
whether that person had committed any terrorism offence.  Pursuant to these special powers,
the AFP can hold a person for questioning for four
hours,and a magistrate can
authorise an extension of up to 20
hours. This means a person can
be held without charge for 24 hours for the purpose of questioning.
- However, ‘dead time’ can be excluded from the total questioning
time. ‘Dead time’
includes a range of periods of time, such as allowing the detainee to rest, or
conveying a person to a place of detention. But ‘dead time’ also
includes allowing the investigating officer to request further time for
investigating a terrorism
offence. The investigating
officer can specify how much ‘dead time’ is required for this
purpose. The effect of these ‘dead time’ provisions is that a person
could be held for much longer than 24 hours.
- For example, Dr Mohammed Haneef was held in pre-charge detention for 12 days
pursuant to the operation of one of the ‘dead time’
provisions. Dr Haneef’s
case demonstrates that there are inadequate safeguards in the operation of the
‘dead time’ provisions to prevent a person being held for an
extended period of time (far beyond 24 hours), without proper review of the
lawfulness of that detention. If a Human Rights Act had been in place at the
time the ‘dead time provisions’ were being drafted, the provisions
may have been accompanied by stronger and more effective safeguards.
- Similarly, the Australian Security Intelligence Organisation Legislation
Amendment (Terrorism) Act 2003 (Cth) gave ASIO special powers to question,
or question and detain, a person suspected of having information related to an
anti-terrorism investigation, even if that person is not suspected of a
terrorist offence. Under
these powers, a person who is not suspected of a terrorism offence can be
detained for up to seven
days. The grounds for
detention can be kept secret.
- The Commission considers that this power of ASIO to detain an individual who
is not suspected of any crime creates a serious risk of violating a
person’s right to liberty and security of the person, and a detained
person’s right to be brought before a judicial officer to rule on the
lawfulness of their detention.
- These laws are subject to a sunset clause which means their operation must
be reviewed in 2016. The Commission believes that when Parliament decides
whether to extend the sunset clause, the laws should be assessed within a human
rights framework. This could be achieved by introducing a Human Rights Act which
provides guidance on when human rights can be legitimately limited.
assessment of the human rights compatibility of Australia’s
- Counter-terrorism laws have often been enacted in haste and without adequate
assessment of their impact on fundamental rights and freedoms.
- Introducing a Human Rights Act could ensure that in the future, proposed
counter-terrorism measures are assessed in a human rights framework before they
are adopted. It would mean that:
- human rights are identified and protected
- legitimate restrictions on human rights are justified
- government agencies consider the human rights impact of counter-terrorism
- courts act as a safeguard against executive overreach in individual
counter-terrorism laws should be independently reviewed
- With over 40 counter-terrorism laws enacted since 2001, there is a need to
ensure that the operation of these laws, both individually and collectively, is
subject to independent review. Current mechanisms for the review of
counter-terrorism laws are ad hoc, and pay insufficient attention to compliance
with human rights standards.
- The Commission has consistently called for the establishment of an
Independent Reviewer of counter-terrorism laws to examine how Australia’s
counter-terrorism laws are working in practice, and whether any significant
human rights concerns have arisen as a result of the operation of these
- Reports by bi-partisan parliamentary committees and independent reviews of
Australia’s counter-terrorism laws have all said that Australia needs to
establish an independent body to provide a comprehensive and holistic review of
the operation of counter-terrorism
- On 23 December 2008, the Australian Government announced that it would amend
certain counter-terrorism offences and establish a National Security Legislation
Monitor to review the practical operation of counter-terrorism legislation on an
annual basis. The National Security Legislation Monitor will be a new statutory
office in the Prime Minister’s Portfolio and will report to
- While it would appear that the Australian Government has stopped short of
establishing a mechanism of regular independent review of Australia’s
counter-terrorism laws, the Commission welcomes the government’s decision
to implement many of the recommendations made by the Inquiry by the Hon John
Clarke QC into the case of Dr Mohamed Haneef, the Review of Sedition Laws in
Australia, and the reports of the Parliamentary Joint Committee on Intelligence
and Security. The Commission
understands a discussion paper and exposure draft of legislation to implement
these changes will be released in 2009.
- The Commission believes it is vital that all new counter-terrorism laws
comply with Australia’s human rights obligations. A Human Rights Act could
make sure that, in future, all proposed counter-terrorism laws are accompanied
by a human rights compatibility statement.
discrimination and promote social inclusion
- Many Arab and Muslim Australians are concerned that counter-terrorism
legislation is being implemented in a way that has a disproportionate impact on
their communities. Uncertainties around the definition of terrorism and terrorist organisations
have fuelled confusion and
- In 2004, the Commission published its report Ismaع–Listen:
National consultations on eliminating prejudice against Arab and Muslim
- The report found that members of Muslim and Arab communities had experienced
increasing levels of discrimination since the terrorist attacks on 11 September
- The Ismaع report identified three main trends within Muslim and Arab
- an increase in fear and insecurity
- the alienation of some members of the community
- a growing distrust of authority.
- In June 2006 the Security Legislation Review Committee expressed
‘serious concern’ about the way in which counter-terrorism
legislation is perceived by some members of Muslim and Arab communities in
- The 2006 report of the Parliamentary Joint Committee on Intelligence and
Security found that ‘one of the most damaging consequences of the
terrorist bombings in the US, the UK, Europe and Indonesia has been a rise in
prejudicial feelings towards Arab and Muslim
Australia’. It also
expressed concern about ‘reports of increased alienation attributed to new
anti-terrorist measures, which are seen as targeting Muslims and contributing to
a climate of suspicion.
- Both the Security Legislation Review Committee and the Parliamentary Joint
Committee on Intelligence and Security supported remedying these problems
through measures which promote social inclusiveness and which counter
discrimination. The ongoing
work of the Commission with Muslim and Arab communities is vital in this
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- While the Commission acknowledges the progress made towards achieving
equality between women and men, the Commission remains concerned about the
ongoing and persistent gender inequality entrenched in Australian life.
- Introducing a Human Rights Act could help ensure that law and policy makers
actively look for ways in which new laws and policies could promote gender
- The Sex Discrimination Commissioner has identified a number of areas of
gender inequality requiring action by the Australian
Government.In July 2008, the
Sex Discrimination Commissioner released her Plan of Action towards Gender
Equality, setting out five priority areas for her term of
office. The Commission has
since made a number of submissions to Australian Government inquiries to
progress these reforms at the national level.
laws to prevent sex discrimination and promote gender equality
- The Commission is concerned about the limited ability of the Sex
Discrimination Act 1984 (Cth) (SDA) to achieve substantive gender equality
in a number of areas of public and private
life. The SDA does not fully implement Australia’s international human rights
obligations, particularly under CEDAW.
- The Senate and Legal Constitutional Affairs Committee recently completed an
inquiry into the effectiveness of the SDA in eliminating discrimination and
promoting gender equality. The Commission made 54 recommendations for immediate
reform of the SDA and also proposed a more extensive second stage of inquiry to
consider 11 more extensive reform
proposals. The majority of
the Commission’s recommendations were adopted by the Senate Committee
Inquiry. The Australian Government is yet to respond to the Senate Committee’s
- The Commission’s previous proposals for strengthening laws to prevent
sex discrimination should inform the implementation of the Commission’s
recommendation to strengthen and streamline Australian federal discrimination
- The Commission has congratulated the Australian Government on its recent
historic announcement that it will fund a national legislated scheme of paid
parental leave (the Scheme), with a commencement date of 1 January 2011. The
Commission has been a long-standing advocate of the need to establish such a
- It is important to now ensure that the Scheme is appropriately implemented,
including an effective awareness-raising and education campaign for both
employees and employers. Further, there is a need for a continuous program of
monitoring and evaluation so the effectiveness of the Scheme is maximised.
- The Commission believes the Scheme is an important first step towards
securing a world class paid parental leave system in Australia. There are a
number of improvements to the Scheme that remain outstanding, including
- superannuation on the leave entitlement
- full coverage for all workers, not only primary carers in receipt of $150
000 or less
- income replacement, rather than payment at the rate of the Federal Minimum
- availability of at least two weeks supporting parent leave (commonly known
as paternity leave)
- availability of additional supporting parent leave (ideally four weeks, to
be taken on a ‘use it or lose it’ basis)
- a total of one year of paid parental leave for new parents.
- The Commission has welcomed the Australian Government’s commitment to
undertake a review of the Scheme two years after implementation, during which
the above measures can be considered.
- The Commission recommends that the Australian Government remove its
reservation to article 11(2)(b) of CEDAW.
- The Commission also recommends that the Australian Government take steps
towards ratification of the Maternity Protection Convention 2000 (No 183)
and ensure compliance with other provisions of that
- For further detail about the Commission’s recommendations regarding
achieving a world class system of paid parental leave for Australia, see the
Commission’s two submissions to the Productivity Commission’s
Inquiry into Paid Maternity, Paternity and Parental Leave
work and caring responsibilities
- The Commission believes that there needs to be greater structural support
for men and women to balance paid work and caring
responsibilities. This is
essential for eliminating discrimination against women in employment as required
by article 11 of CEDAW.
- The Commission is concerned that the new National Employment
Standards, established as part of the Australian Government’s new
workplace relations framework, provide inadequate protection for workers with
caring responsibilities. The new right to request flexible working arrangements
under the National Employment Standards is limited to workers with
children under school age or children with disability under the age of 18 and
does not apply to workers unless they have completed 12 months of continuous
service. These limitations will have a disproportionate impact on women and men
with wide-ranging care dependent relationships that can develop at any point
over the work-life
- The Commission is also concerned that the family responsibilities provisions
of the SDA provide extremely limited coverage for employees experiencing this
form of discrimination. Currently, protection against discrimination on the
grounds of family responsibilities is limited to situations of direct
discrimination and dismissal from
employment. These problems
should be addressed by strengthening federal discrimination laws.
- For the Commission’s recommendations about improving the SDA to
protect workers from discrimination on the grounds of family and carer
responsibilities, see the Commission’s submission to the Inquiry into the
Effectiveness of the Sex Discrimination
5.4 Women’s economic security in
- The Commission is concerned about the significant disparity between the
retirement savings and income of men and women. Current figures show that
women’s superannuation balances are less than half of those of
men. This stark figure is a
clear marker of gender inequality in Australia.
- Linking superannuation exclusively to engagement in paid work disadvantages
women and other groups with marginal labour force attachment and lower earnings.
Superannuation is a type of social insurance under article 9 of the ICESCR. Due
to superannuation being linked to paid work, women do not currently equally
enjoy the right to social security in Australia.
- Women are more likely to have broken paid work patterns due to caring
responsibilities and have lower life-time earnings due to pay inequity. This
means that, not only do women generally have lower levels of superannuation
coverage over their lifetime, but when they do engage in paid work, they
accumulate lower amounts of superannuation. Forms of age discrimination can
create further barriers to participation in the paid workforce.
- With women generally retiring earlier and living longer than men, many women
face prospects of financial insecurity and poverty in retirement, often solely
relying on the Age Pension. Of all household types in Australia, elderly single
women are at the greatest risk of
poverty. Around 73% of those
on the single rate of the Age Pension are
- The Australian Government is currently reviewing the retirement income
system as part of a broader review of the national tax system. The Commission
has expressed concern that that current system does not enable women to equally
enjoy their right to social security and subsequently, equally enjoy their right
to an adequate standard of
living. If a Human Rights Act was introduced, the Australian Government would be
required to formally assess the human rights implications of any legislative
changes to the tax system.
- The Commission has recommended actions in the following areas to increase
women’s economic security in retirement:
- removing barriers to women’s labour market participation (see
- increasing life-time earnings for women by reducing the gender pay gap (see
- extending initiatives to increase superannuation contributions for low
income earners and those on welfare payments, including investigation of a
system to recognise the value of unpaid caring work
- ensuring that the Age Pension protects individuals from poverty and fulfils
Australia’s international human rights obligations for women and men to
equally enjoy a right to an adequate standard of living, and to social
- regular monitoring and reporting of the gender impact of federal budgets and
reforms (see below)
- independent monitoring and reporting of Australia’s progress towards
achieving substantive gender equality.
- The Commission welcomes the recent commitment by the Australian Government
to increase the rate of the Age Pension. However, this measure alone will not be
sufficient to address the gender gap between women and men in their retirement
income and savings over the lifecycle.
5.5 Gender pay gap
- There is a gender pay gap in Australia, with female workers earning 16.7%
less than male workers.
- The gender pay gap in Australia is measured using data on average weekly
earnings collected by the Australian Bureau of Statistics. In August 2008, women
working full-time were earning 83.3% in the male dollar – this equates to
a 16.7% pay gap. When part-time and casual work is included, women were earning
around two thirds of what men earn. Although the pay gap for full-time earnings
has hovered between 15-19 percentage points in the last three decades, in recent
years the gender pay gap has widened slightly.
- In a submission to the House of Representatives Inquiry into Pay Equity and
associated issues related to increasing female participation in the workforce,
the Commission recommended that the Australian Government:
- Amend the SDA in accordance with the recommendations of the Senate Inquiry
report into the effectiveness of the
SDA, particularly to: provide
for full protection from discrimination in employment on the grounds of family
and carer responsibilities; impose a positive duty on employers to reasonably
accommodate the needs of workers in relation to pregnancy or family and carer
responsibilities; and expand the powers of the Commission and the Sex
Discrimination Commissioner to undertake inquiries, and to initiate complaints.
- Amend the federal industrial relations laws (formally the Workplace
Relations Act 1996 (Cth), which the federal Government is replacing with the Fair Work Act 2009 (Cth) (Fair Work Act)), in relation to equal
- Improve national institutional arrangements, and data collection and
monitoring mechanisms, including providing for the Commission to independently
monitor and regularly report on progress in achieving gender equality at the
- Increase funding to the Commission to enable it to exercise its existing and
proposed new powers and functions in this
- The Commission welcomes the new equal remuneration provisions in the Fair
Work Act which have substantially adopted one of the Commission’s
proposals for legislative reform in this area.
- Despite nearly 25 years of legislative protection under the SDA, the
Commission is concerned that sexual harassment remains a problem in Australian
- Elimination of sexual harassment is critical to achieving gender equality in
the workplace and implementing Australia’s obligations under CEDAW. The
widespread incidence of sexual harassment in the workplace also impacts on the
capacity of women to equally enjoy their right to safe and healthy working
conditions, as set out in articles 3 and 7(b) of ICESCR.
- Addressing sexual harassment is one of the five priority areas for the term
of the current Sex Discrimination Commissioner, set out in her Plan of Action
Towards Gender Equality.
- In 2008, the Commission conducted its second national telephone survey about
the nature and extent of sexual harassment in Australian workplaces. The
national telephone survey was first conducted in 2003. The survey found that 22%
of females and 5% of males had experienced sexual harassment in the workplace at
some time, compared to 28% of females and 7% of males in 2003.
- Arising out of the findings of the 2008 national telephone survey, the
Commission made a number of recommendations for action. The recommendations
include that the Australia Government should provide sufficient funding to:
- enable the Commission to work with relevant Australian Government agencies
and small business representatives to develop and promote the use of specific
sexual harassment training guidelines for small business
- expand the capacity of the Commission to provide information to ensure
people understand their rights and responsibilities under the law, and ensure
the ongoing provision of an efficient and effective complaint service
- enable the Equal Opportunity for Women in the Workplace Agency or the
Commission to develop an audit kit to assist employers to monitor the incidence
of sexual harassment
- enable the Commission to repeat its national telephone survey every five
years in order to independently monitor trends in the nature and extent of
sexual harassment in Australian
- In the 2008 Senate Inquiry into the effectiveness of the SDA in eliminating
discrimination and promoting gender equality, sexual harassment was a specific
terms of reference for the Inquiry. The Commission made a number of
recommendations to the Inquiry to improve the capacity of the SDA to redress
- The Commission highlighted the need for expanded legal protection and
comprehensive education efforts to eliminate sexual harassment. The Commission
also recommended that the Australian Government increase funding to the
Commission to perform its policy development, education, research, submissions,
public awareness and inquiry functions to eliminate discrimination and promote
- A number of the Commission’s recommendations were adopted by the
Inquiry. As noted above, the Australian Government is yet to respond to the
Senate Committee’s report. These issues should be addressed as part of
efforts to strengthen and streamline federal discrimination law.
- Gender-based violence is still a serious problem in Australia. Experiences
of violence severely limit the capacity of women to equally enjoy their human
- As many as one in three Australian women are affected by domestic and family
violence. Nearly one in five
Australian women has experienced sexual violence since the age of
15. Domestic violence has
been identified as the leading contributor to preventable death, disability and
illness in women aged 15 to 44 in the state of
Victoria. Further, domestic
violence is the most common reason cited by individuals seeking assistance with
Australian housing services. A high proportion of women with a disability experience domestic
- Since November 2007, the Australian Government has introduced some key
initiatives to address gender-based violence. In May 2008, the Australian
Government formed a National Council to Reduce Violence Against Women and
Children (the National Council). The National Council was directed to develop a
12 year National Plan to Reduce Violence Against Women and Children (the
- In April 2009, the Australian Government released Time for Action: The
National Council’s Plan for Australia to Reduce Violence against Women and
their Children, 2009–2021 along with the Australian Government’s
response. The development, implementation and evaluation of the National Plan
has been referred to the Council of Australian Governments (COAG). The
Australian Government has also committed to implementing a selection of the
urgent recommendations of the report.
- The Commission has welcomed these developments, while urging the Australian
Government to ensure that:
- The development, implementation and evaluation of the National Plan is
supported with sustained commitment and proper resourcing.
- The National Plan receives priority attention within COAG and is implemented
by early 2010 in line with the Australian Government’s commitment.
- The National Plan includes funding to adequately resource participatory
decision making processes and to facilitate stakeholder and community input into
implementation and evaluation.
- The National Plan is regularly monitored by an independent body to measure
progress. This includes developing strong data collection and evaluation
mechanisms, as well as the setting of appropriate targets and
gender equality machinery
- The Commission notes the importance of Australia having in place robust
national gender machinery, including gender budgeting analysis, accountability
systems, independent monitoring and benchmarking, and a strong, well-supported
civil society, in order to prevent sex discrimination and promote gender
- The Commission encourages the Australian Government to review the
effectiveness of existing national gender machineries in Australia, particularly
in the lead up to the 54th session of the UN Commission on the Status of Women
in March 2010, as part of the review and appraisal of the implementation of the
Beijing Declaration and Platform of Action and the outcome of the 23rd Special
Session of the General Assembly on ‘Women 2000: gender equality,
development and peace for the twenty-first century’ in June 2000.
- The Commission notes the particular importance of national gender
machineries enabling appropriate gender budgeting to occur. The Commission has
recommended that a Gender Analysis Unit should be established within Treasury to
conduct gender disaggregated public expenditure analysis, gender disaggregated
tax incidence analysis, and yearly gender budget
and reporting gender equality indicators
- In Australia, there is no institutional arrangement in place for an agency
independent of government to regularly report to Parliament and the Australian
public, providing a considered evidence-based assessment of progress against an
integrated set of national gender equality indicators and to benchmark progress
against those indicators over time.
- The Commission has existing functions, such as its education and research
function, which would enable ongoing monitoring and reporting on gender equality
benchmarks and indicators at a national level. However, the Sex Discrimination
Commissioner and the Commission have assessed that the Commission is not in a
position to assume this important national role under existing funding
- The Senate Standing Committee on Legal and Constitutional Affairs
recommended that ‘the Act be amended to require the Sex Discrimination
Commissioner to monitor progress towards eliminating sex discrimination and
achieving gender equality, and to report to Parliament every four
- The Committee further recommended that the Commission be provided with
additional resources to enable it to perform this
role. This recommendation
should be implemented as part of action taken to strengthen and streamline
Australia’s federal discrimination laws.
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lesbian, bisexual, transgender and intersex people
against discrimination on the basis of sexual orientation, sex identity and
- There remains insufficient protection against discrimination experienced by
gay, lesbian, bisexual, transgender and intersex people in Australia. The best
way to address these issues is through the implementation of the
Commission’s recommendations to strengthen and streamline federal
discrimination laws, and to begin a process of constitutional reform to protect
the principle of equality for people in Australia.
- There is no federal law specifically prohibiting discrimination on the
grounds of sexuality, sex identity or gender identity. While the Commission may
investigate a complaint of discrimination in employment on the grounds of sexual
orientation, and complaints of human rights breaches based on sex or gender
identity, these protections are limited and any recommendations made by the
Commission are not enforceable.
- Introducing a national Equality Act which provided a legal remedy for
discrimination on the grounds of sexuality, and sex and gender identity, would
send a strong message to the community that gay, lesbian, bisexual, transgender
and intersex people are entitled to the same rights as any other person.
- In addition, same-sex couples in Australia do not enjoy equality of rights
regarding relationship recognition, including civil marriage
documents and records for people who are sex and gender diverse
- Having documents that contain accurate information about sex and gender is
crucial for the full participation in society of people who are sex and gender
diverse. It is also an important aspect of freedom of expression and, in
relation to travel documents, can affect a person’s freedom of movement
- Some transgender, transsexual and intersex people have official documents
that state an inappropriate sex. Although Australia has some systems that enable
the sex marker on official documents to be changed, not all transgender,
transsexual and intersex people can access those systems. In particular, current
systems for changing the sex marker on some official documents can only be
accessed by people who have undergone sex affirmation surgery. Further, the
current systems do not allow for people who are married to change some or all of
- The absence of nationally consistent procedures to assist people who are sex
and gender diverse to change their official documents and government records
means that the process may be time consuming, frustrating and
- In March 2009, the Commission launched the concluding paper from its sex and
gender diversity project, Sex Files: the legal recognition of sex in
documents and government records (Sex
Files). In Sex Files, the
Commission recommended that:
- Access to the system for having sex legally recognised to accord with sex
identity should be broadened.
- The process for amending documents and records to legally recognise sex
identity should be streamlined and user-friendly.
- In Sex Files, the Commission further recommended that the federal government
should take a leadership role in ensuring that there is a nationally consistent
approach to the legal recognition of sex, in accordance with the concluding
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strategy for implementation of the Convention on the Rights of Persons with
- The Commission has welcomed the government's decision to pursue a National
Disability Strategy based on the Convention on the Rights of Persons with
Disabilities (Disability Convention).
- The Disability Convention makes even clearer than previous human rights
instruments that legal measures alone are not a sufficient response to
Australia’s treaty obligations on human rights, or sufficient to ensure
that human rights are fully and equally enjoyed in practice by all people in
- The Disability Convention, while intended to reflect rights already
recognised in the human rights treaties, provides substantially more detail than
previously available on the meaning of those rights in relation to people with
disability and guidance on measures which should be adopted or considered in
turning rights into realities.
- The obligations of parties to the Disability Convention (under article 4)
include the general obligation:
to adopt all appropriate
legislative, administrative and other measures for the implementation of the
rights recognized in the present Convention.
- Article 4(1)(c) of the Convention requires parties to ‘take into
account the protection and promotion of the human rights of persons with
disabilities in all policies and programmes’ (emphasis added),
rather than only in those areas specifically targeted at disability issues.
- The Commission considers it clear that a comprehensive national strategy
involving all areas and levels of government is necessary to implement this
- A National Disability Strategy should include:
- development and implementation of more detailed disability strategies for
all areas and levels of government, both on relevant aspects of each department
and agency's specific responsibilities and elements common to all agencies
- establishment of a co-ordination mechanism and monitoring
- substantially enhanced resourcing for disability representative, advocacy
and advisory bodies to ensure they are able to provide the input governments
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right to vote
- The Commission has repeatedly raised concerns about the ability of
Australians to exercise their right to vote and participate in the political
concerns have included:
- the lack of availability of electronic voting for people with a vision
- difficulties faced by people who are homeless
- restrictions on the voting rights of prisoners.
- Electronically assisted voting for people with vision impairment was
trialled at the 2007 federal election. In March 2009 the Joint Committee on
Electoral Matters released a report on the trial, recommending that electronic
voting be discontinued, largely due to the high level of expense
- However, the Commission believes it is important that this method of voting
be made permanently available and be provided in as many locations as possible.
Eligibility to use this method of voting should be extended to all people who
are unable to complete a secret ballot using a pencil and paper, including
people with physical disability and people who cannot effectively use written
instructions in completing a ballot paper, whether by reason of intellectual or
learning disability, or other language or literacy difficulties.
- People experiencing homelessness in Australia often face significant
difficulties in exercising their right to vote. For example, some people may
have difficulty meeting proof of identity requirements because they do not have
and cannot afford to obtain the necessary identity documents. Further, the
threat of monetary penalties for failure to vote or failure to register changes
of address may also discourage homeless people from enrolling to vote.
- Under Australian law, persons serving sentences of imprisonment of three
years of more are not eligible to
vote. The Commission is
concerned that this restriction on the right of prisoners to vote may not be
proportionate, as required by article 25 of the
ICCPR. Further, this
restriction may have a disproportionate impact on groups who are overrepresented
in the prison population, such as Indigenous peoples, people with mental illness
and people with an intellectual disability.
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 These issues are discussed in
detail in: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2003 (2004), at http://www.humanrights.gov.au/social_justice/sj_report/sjreport03/index.html (viewed 4 June 2009). See also Australian Institute of Health and Welfare and
Australian Bureau of Statistics, The Health and Welfare of Australia's
Aboriginal and Torres Strait Islander Peoples 2005 (2005), at www.aihw.gov.au/publications/ihw/hwaatsip05/hwaatsip05.pdf (viewed 4 June 2009); Australian Institute of Health and Welfare, Australia's
Health No.11 (2008), at http://www.aihw.gov.au/publications/aus/ah08/ah08-c03.pdf (viewed 4 June 2009). In May 2009, the Australian Bureau of Statistics issued
new data indicating that the life expectancy gap between Indigenous and
non-Indigenous people is approximately 10 years and not 17 years as previously
estimated. See further Aboriginal and Torres Strait Islander Social Justice
Commissioner, ‘More accurate reporting needed to address life expectancy
gap’ (Press Release, 26 May 2009). At http://www.humanrights.gov.au/about/media/media_releases/2009/41_09.html (viewed 4 June 2009).
 Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2003, note 1.
 The Hon J Macklin MP, Statement on the United Nations Declaration on the
Rights of Indigenous Peoples (Speech delivered at Parliament House,
Canberra, 3 April 2009), at http://www.un.org/esa/socdev/unpfii/documents/Australia_official_statement_endorsement_UNDRIP.pdf (viewed 4 June 2009); The Hon R McClelland MP, Remarks in Support of the
United Nations Declaration on the Rights of Indigenous Peoples (Speech
delivered at Parliament House, Canberra, 3 April 2009), at http://www.attorneygeneral.gov.au/www/ministers/robertmc.nsf/Page/Speeches_2009_3April2009-RemarksinSupportoftheUnitednationsDeclarationontheRightsofIndigenousPeoples (viewed 1 June 2009).
Committee on Economic, Social and Cultural Rights, Concluding Observations of
the Committee on Economic, Social and Cultural Rights: Australia (Advance
Unedited Version), UN Doc E/C.12/AUS/CO/4 (2009), para 33. At http://www2.ohchr.org/english/bodies/cescr/docs/AdvanceVersions/E-C12-AUS-CO-4.doc (viewed 9 June 2009).
for Families, Community Services and Indigenous Affairs, ‘National
emergency response to protect children in the NT’ (Media Release, 21 June
2007). At http://www.fahcsia.gov.au/internet/minister3.nsf/content/emergency_21june07.htm (viewed 4 June 2009). The catalyst for the measures was the release of Report of
the Northern Territory Board of Inquiry into the Protection of Aboriginal
Children from Sexual Abuse, Ampe Akelyernemane Meke Mekarle: ‘Little
Children are Sacred’ (2007). At http://www.inquirysaac.nt.gov.au/ (viewed 4 June 2009).
 Northern Territory National Emergency Response Act 2007 (Cth); Families, Community Services and Indigenous Affairs and Other Legislation
Amendment (Northern Territory National Emergency Response and Other Measures)
Act 2007 (Cth); Social Security and Other Legislation Amendment (Welfare
Payment Reform) Act 2007 (Cth).
 Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007 (2008). At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html (viewed 4 June 2009).
 Aboriginal and Torres Strait Islander Social Justice Commissioner, above, pp 238
 In response to an Early
Warning and Urgent Action Procedure, the UN Committee on the Elimination of
Racial Discrimination has asked Australia to submit further details and
information on the NTER no later than 31 July 2009. See F Victoire Dah,
Chairperson of the Committee for the Elimination of Racial Discrimination,
Correspondence to C Millar, Ambassador, Permanent Representative, Permanent
Mission of Australia to the United Nations at Geneva, 13 March 2009. At http://www2.ohchr.org/english/bodies/cerd/docs/early_warning/Australia130309.pdf (viewed 9 June 2009). See also UN Human Rights Committee, Consideration of
Reports Submitted by States Parties under Article 40 of the Covenant: Concluding
Observations of the Human Rights Committee – Australia (Advanced
Unedited Version), UN Doc CCPR/C/AUS/CO/5 (2 April 2009), at http://www2.ohchr.org/english/bodies/hrc/docs/co/CCPR-C-AUS-CO5-CRP1.doc (viewed 9 June 2009); UN Committee on Economic, Social and Cultural Rights, Concluding Observations: Australia (2009), note 4.
 Northern Territory Emergency Response Review Board, Northern Territory
Emergency Response: Report of the NTER Review Board (2008), p 10. At http://www.nterreview.gov.au (viewed 4
Government and Northern Territory Government Response to the Report of the NTER
Review Board (21 May 2009). At http://www.fahcsia.gov.au/sa/indigenous/pubs/nter_reports/response_to_reportNTER/Documents/Aust_response_1882953_1.pdf (viewed 4 June 2009).
 Australian Government, Future Directions for the Northern Territory Emergency
Response Discussion Paper (21 May 2009). At http://www.fahcsia.gov.au/sa/indigenous/progserv/ntresponse/future_directions/Documents/discussion_paper_6.pdf (viewed 4 June 2009).
 Northern Territory Board of Inquiry into the Protection of Aboriginal Children
from Sexual Abuse, note 5; Aboriginal
Child Sexual Assault Taskforce, Breaking the Silence: Creating the Future.
Addressing child sexual assault in Aboriginal communities in NSW (2006), at http://www.lawlink.nsw.gov.au/acsat (viewed 4 June 2009).
 Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007, note 7, p
 Australian Institute
of Health and Welfare, Child Protection Australia 2007-2008, Child
Welfare Series No 45 (2009), p 65. At http://www.aihw.gov.au/publications/cws/cpa07-08/cpa07-08.pdf (viewed 4 June 2009).
 Council of Australian Governments, Protecting children is everyone’s
business: National Framework for Protecting Australia’s Children
2009-2020 (2009). At http://www.coag.gov.au/coag_meeting_outcomes/2009-04-30/docs/child_protection_framework.pdf (viewed 4 June 2009).
 Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending
family violence and abuse in Aboriginal and Torres Strait Islander communities:
Key issues (2006), pp 5 - 6. At http://www.humanrights.gov.au/social_justice/familyviolence/index.html (viewed 4 June 2009). See also Aboriginal and Torres Strait Islander Social
Justice Commissioner, Social Justice Report 2007, note 7, pp 194 - 195.
 Cape York Institute for
Policy and Leadership, From hand out to hand up (2007). At http://www.cyi.org.au/WEBSITE%20uploads/Welfare%20Reform%20Attachments/From%20Hand%20Out%20to%20Hand%20Up_Welfare%20Reform%20Report.pdf (viewed 4 June 2009).
 Council of Australian Governments, Protecting children is everyone’s
business, note 16, p
 Close the Gap, at http://www.closethegap.com.au, (viewed
4 June 2009).
 See Aboriginal
and Torres Strait Islander Social Justice Commissioner, ‘More accurate
reporting needed to address life expectancy gap’, note 1.
 Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 167
(Hon Kevin Rudd MP, Prime Minister). At http://www.aph.gov.au/hansard/reps/dailys/dr130208.pdf (viewed 4 June 2009).
 Australian Bureau of Statistics, The Health and Welfare of Australia’s
Aboriginal and Torres Strait Islander Peoples, note 1, p
 Australian Bureau of
Statistics, above, p 47.
Human Rights Council, Report of the Special Rapporteur on adequate housing as
a component of the right to an adequate standard of living, Miloon Kothari,
Addendum - Mission to Australia (31 July to 15 August 2006), UN Doc
A/HRC/4/18/Add.2, (2007), para 80. At http://daccessdds.un.org/doc/UNDOC/GEN/G07/125/72/PDF/G0712572.pdf?OpenElement (viewed 4 June 2009).
 The UN
Committee on Economic, Social and Cultural Rights has noted that cultural
adequacy is an essential aspect of housing adequacy: ‘the way housing is
constructed, the building materials used and the policies supporting these must
appropriately enable the expression of cultural identity and diversity of
housing’. UN Committee on Economic, Social and Cultural Rights, General
Comment 4: The right to adequate housing, UN Doc E/1992/23, annex III (1991)
114, para 8(g). At http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+4.En?OpenDocument (viewed 4 June 2009).
Committee on Economic, Social and Cultural Rights, Concluding Observations:
Australia (2009), note 4, para
 See the National
Affordable Housing Agreement and its associated National Partnerships (NPs)
and the Council of Australian Governments Commitments from February 2009:
Council of Australian Governments, Special Council Of Australian Governments
Meeting: Nation Building And Jobs Plan – Communiqué (2009). At http://www.coag.gov.au/coag_meeting_outcomes/2009-02-05/docs/20090205_communique.pdf (viewed 4 June 2009).
 Council of Australian Governments, National Partnership on Remote Indigenous
Housing Agreement, Fact Sheet. At http://www.coag.gov.au/coag_meeting_outcomes/2008-11-29/docs/20081129_remote_indigenous_housing_factsheet.pdf (viewed 4 June 2009).
of these partnerships fall within the Australian Government’s overarching National Indigenous Reform Agreement (NIRA). This provides a
summary of action being taken by all governments against the ‘Closing the
Gap’ targets, as well as the operation of the mainstream national
agreements in health, schools, vocational education and training, disability
services and housing and several National
Council, ‘Tangentyere Supports Open and Transparent Tenancy Reform’
(Media Release, 25 May 2009). At http://www.tangentyere.org.au/publications/documents/TENANCYREFORM25MAY2009.pdf (viewed 4 June 2009).
 United Nations Declaration on the Rights of Indigenous Peoples (Declaration on the Rights of Indigenous Peoples), GA Resolution 61/295, UN Doc
A/61/L.67 (2007), arts 5, 8, 10, 19, 23, 27, 28. At http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf (viewed 29 May 2009).
 Laynhapuy Homelands Association, ‘No future for Yolngu living on
homelands’ (Press Release, 21 May 2008). At http://stoptheintervention.org/facts/your-voice/laynhapuy-homelands-association (viewed 4 June 2009).
 Northern Territory Government, Working Future - Fresh ideas/real results:
Outstations/homelands policy - Headline Policy Statement (2009). At http://www.workingfuture.nt.gov.au/download/Headline_Policy_Statement.pdf (viewed 4 June 2009).
 Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS)
in association with the Federation of Aboriginal and Torres Strait Islander
Languages (FATSIL), National Indigenous Languages Survey Report 2005 (2005), p 3. At http://www.arts.gov.au/__data/assets/pdf_file/0006/35637/NILS_Report_2005.pdf (viewed 4 June 2009).
 AIATSIS and FATSIL, above.
 UN Committee on Economic, Social and Cultural Rights, Concluding
Observations: Australia (2009), note 4, para
 See Hon John von Doussa
QC, Legal Protection of Cultural Artistic Works and Folklore in Australia (Presentation to the International Association for the Protection of
Intellectual Property and The Malaysia Bar Council’s Intellectual Property
Committee - Joint Conference, Kuala Lumpur, 1 September 2006). At http://www.humanrights.gov.au/about/media/speeches/speeches_president/2006/20060901_Malaysia.html (viewed 4 June 2009).
Fordham & RG Schwab, Summarising: Fordham (2007), Preliminary analyses of
access to education and discrete Indigenous communities in Australia, 2006,
Centre for Aboriginal Economic Policy Research, Reference No 48 (2006), p 1. At http://www.anu.edu.au/caepr/educationfutures/ref048.pdf (viewed 1 June 2009).
Storry, Tackling literacy in remote Aboriginal communities, Issue
Analysis No. 73, Centre for Independent Studies (2006). At http://users.tpg.com.au/dlynn/kirstenstorry/IA73 (viewed 1 June 2009).
 Steering Committee for the Review of Government Service Provision, Overcoming
Indigenous Disadvantage: Key Indicators 2007 Report (2007), section 6. At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2007/keyindicators2007.pdf (viewed 4 June 2009).
Committee on Economic, Social and Cultural Rights, Concluding Observations:
Australia (2009), note 4, para
 Department of
Employment, Education and Training, Northern Territory Government, Indigenous
Languages and Culture in Northern Territory Schools Report 2004 –
2005, pp 34 – 37. At http://www.det.nt.gov.au/education/indigenous_education/previous_publications/indigenous_languages_culture_report/indigenous_languages_culture_report.pdf (viewed 4 June 2009).
 Australian Bureau of Statistics, Prisoners in Australia (2008), p
3. At http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/F618C51B775B2CF7CA25751B0014A2D5/$File/45170_2008.pdf (viewed 1 June 2009).
 Australian Bureau of Statistics, above, p
 Australian Institute of
Health and Welfare, Juvenile Justice in Australia 2006-2007 (2008). At http://www.aihw.gov.au/publications/juv/jjia06-07/jjia06-07.pdf (viewed 1 June 2009).
Committee against Torture, Concluding observations of the Committee against
Torture: Australia, UN Doc CAT/C/AUS/CO/3 (2008). At http://www2.ohchr.org/english/bodies/cat/cats40.htm (viewed 4 June 2009)
 Crimes Amendment (Bail and Sentencing) Act 2006 (Cth).
Covenant on Civil and Political Rights (ICCPR), 1966, art 27, at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed 22 May 2009); UN Human Rights Committee, General Comment 23: The rights of minorities (Art 27), UN CCPR/C/21/Rev.1/Add.5 (1994), para
7, at http://www.unhchr.ch/tbs/doc.nsf/0/fb7fb12c2fb8bb21c12563ed004df111?Opendocument (viewed 4 June 2009). For further details, see Human Rights and Equal
Opportunity Commission, Senate Legal and Constitutional Affairs Committee on
the Crimes Amendment (Bail And Sentencing) Bill 2006
(27 September 2006).
At: http://www.humanrights.gov.au/legal/submissions/crimes_amendment.html (viewed 4 June 2009).
 Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW), 1979. At http://www2.ohchr.org/english/law/cedaw.htm (viewed 29 May 2009).
 Convention on the Rights of the Child (CRC), 1989. At http://www.unhchr.ch/html/menu3/b/k2crc.htm (viewed 29 May 2009).
 See Sentencing Act 1995 (NT), ss 78BA,
 Human Rights and Equal
Opportunity Commission, Bringing them home: National Inquiry into the
Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997). At http://www.humanrights.gov.au/social_justice/bth_report/report/index.html (viewed 4 June 2009).
 Commonwealth, Parliamentary Debates, note 22, p
 UN Human Rights
Committee, Concluding observations of the Human Rights Committee:
Australia, UN Doc A/55/40 (2000). At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.55.40,paras.498-528.En?OpenDocument (viewed 2 June 2009).
Human Rights and Equal Opportunity Commission, Submission to the Senate Legal
and Constitutional References and Legislation Committee Inquiry into Stolen
Wages (1 August 2006), paras 13 - 24. At http://www.humanrights.gov.au/legal/submissions/stolen_wages_2006.html (viewed 4 June 2009).
Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Unfinished Business: Indigenous Stolen Wages (2006). At http://www.aph.gov.au/senate/committee/legcon_ctte/stolen_wages/report/index.htm (viewed 4 June 2009).
 Native Title Act 1993 (Cth),
 Bodney v
Bennell  FCAFC 63, para 89 (Finn, Sundberg and Mansfrield JJ);
affirming Risk v Northern Territory of Australia  FCA 404, para 97
 See Members of the Yorta Yorta Aboriginal Community v Victoria  HCA 58,
paras 25 - 26, 44, 78 - 89 (Gleeson CJ, Gummow and Hayne JJ) for the High
Court’s comments on the Full Federal Court’s consideration of
‘traditional’, and for the level of adaptation of traditional law
and custom permitted. For commentary on the limitations of the Native Title Act
in recognising or allowing for revitalisation of culture, and limited adaptation
of cultural traditions, see Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2007 (2008), pp 178 - 181, at http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html (viewed 4 June 2009) and Native Title Report 2008 (2009), pp 87 - 88, at http://www.humanrights.gov.au/social_justice/nt_report/ntreport08/index.html (viewed 4 June 2009). See also Chief Justice RS French, Lifting the burden of
native title – some modest proposals for improvement (Speech delivered
to the Native Title User Group, Adelaide, 9 July 2008). At http://www.fedcourt.gov.au/aboutct/judges_papers/speeches_frenchj35.rtf.
 The Native Title Act was
amended by the Native Title Amendment Act 2007 (Cth) and the Native
Title Amendment (Technical Amendments) Act 2007 (Cth). The Native Title
Amendment Bill 2009 was before Parliament at the time of writing.
 See Aboriginal and Torres
Strait Islander Social Justice Commissioner, Native Title Report 2007,
 National Native Title Tribunal, National Report: Native Title (2009). At http://www.nntt.gov.au/Applications-And-Determinations/Procedures-and-Guidelines/Documents/National%20Report%20Card%20-%20March%202009.pdf (viewed 4 June 2009).
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007, note 60.
 Northern Territory National Emergency Response Act 2007 (Cth), ss 51(1),
 Australian Human
Rights Commission, Reports to the Minister under the Human Rights and Equal
Opportunity Commission Act 1986 (Cth). At http://www.humanrights.gov.au/legal/HREOCA_reports/index.html.
 Australian Human Rights
Commission, 2008 Immigration detention report: Summary of observations
following visits to Australia’s immigration detention facilities (January 2009), at http://humanrights.gov.au/human_rights/immigration/idc2008.html (viewed 4 June 2009);
Human Rights and Equal Opportunity Commission, Summary of observations following the inspection of mainland immigration
detention facilities 2007 (December 2007), at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/summary_idc_report07.pdf;
Human Rights and Equal Opportunity Commission, Summary of observations
following the inspection of mainland immigration detention facilities 2006 (January 2007), at http://www.humanrights.gov.au/pdf/human_rights/HREOC_IDC_20070119.pdf (viewed 4 June 2009).
for example, Human Rights and Equal Opportunity Commission, Submission to the
Joint Standing Committee on Migration Inquiry into Immigration Detention in
Australia (4 August 2008), at http://www.humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (viewed 4 June 2009).
Rights and Equal Opportunity Commission, A last resort? National Inquiry into
Children in Immigration Detention (2004), at http://www.humanrights.gov.au/human_rights/children_detention_report/report/PDF/alr_complete.pdf (viewed 2 June 2009); Human Rights and Equal Opportunity Commission, Those
who’ve come across the seas – Detention of unauthorised arrivals (1998), at http://www.humanrights.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf (viewed 2 June 2009).
 Australian Human Rights Commission, 2008 Immigration detention report,
 Conclusion No 44 of the Executive Committee of the United Nations High
Commissioner for Refugees states that where the detention of asylum seekers is
deemed necessary, it should only be used to verify identity; to determine the
elements on which the claim to refugee status or asylum is based; to deal with
cases where refugees or asylum seekers have destroyed their travel and/or
identification documents in order to mislead the authorities of the State in
which they intend to claim asylum; or to protect national security or public
order. See United Nations High Commissioner for Refugees, Executive Committee, Conclusion No. 44 (XXXVII) - Detention of Refugees and Asylum Seekers (13
October 1986). At http://www.unhcr.org/refworld/docid/3ae68c43c0.html (viewed 4 June 2009).
Rights and Equal Opportunity Commission, A last resort?, note 69.
 ICCPR, note 49, art 9(1); CRC, note 51, art 37
 CRC, above, art
 See, for example,
Human Rights and Equal Opportunity Commission, A last resort?, note 69, ch
 C Evans, New
Directions in Detention – Restoring Integrity to Australia’s
Immigration System (Speech delivered at the Centre for International and
Public Law Seminar, ANU, Canberra, 29 July 2008). At http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm (viewed 4 June 2009).
for example, Human Rights and Equal Opportunity Commission, Commission
submission to Joint Standing Committee on Migration, note 68, pp 13 -
 UN Human Rights
Committee, A v Australia, Communication No 560/1993, UN Doc
CCPR/C/59/D/560/1993 (1997), at http://www.bayefsky.com/html/109_australiavws560.php (viewed 1 June 2009); UN Human Rights Committee, C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), at http://www.unhchr.ch/tbs/doc.nsf/0/f8755fbb0a55e15ac1256c7f002f17bd?Opendocument (viewed 2 June 2009); UN Human Rights Committee, Bakhtiyari v Australia,
Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003), at http://www.unhchr.ch/tbs/doc.nsf/0/8662db397d948638c1256de2003b3d6a?Opendocument (viewed 4 June 2009); UN Human Rights Committee, D & E v Australia,
Communication No 1050/2002, UN Doc CCPR/C/87/D/1050/2002 (2006), at https://www1.umn.edu/humanrts/undocs/1050-2002.html (viewed 4 June 2009).
 Migration Act 1958 (Cth), s
 Migration Act
1958 (Cth), s 494AA.
 Convention Relating to the Status of Refugees, 1951. At http://www.unhchr.ch/html/menu3/b/o_c_ref.htm (viewed 5 June 2009).
further details, see Australian Human Rights Commission, 2008 Immigration
detention report, note 67, pp 70
- 79; Human Rights and Equal Opportunity Commission, Submission to Joint
Standing Committee on Migration, note 68, pp 15 - 16; Human Rights and Equal
Opportunity Commission, Submission to the Senate Legal and Constitutional
Legislation Committee on the Migration Amendment (Designated Unauthorised
Arrivals) Bill 2006 (22 May 2006), at http://www.humanrights.gov.au/legal/submissions/migration20060522.html (viewed 4 June 2009)
Human Rights and Equal Opportunity Commission, A last resort?, note 69, Recommendation 4, pp 877 - 880;
Australian Human Rights Commission, 2008 Immigration detention report, note 67, p 18; Australian Human
Rights Commission, Comments on Australia’s Compliance with the
Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment (April 2008), at http://www.humanrights.gov.au/legal/submissions/2008/080415_torture.html (viewed 4 June 2009). In 2008, the UN Committee against Torture also recommended
that immigration detention standards be codified in legislation: Committee
against Torture, Concluding Observations: Australia, note 47.
 See Human Rights and Equal Opportunity Commission, Submission to Joint
Standing Committee on Migration, note 68, pp 20 - 22; Australian Human Rights
Commission, Submission to the Senate Select Committee on Ministerial
Discretion in Migration (2003), at http://www.humanrights.gov.au/legal/submissions/migration_matters.html (viewed 4 June 2009).
for example, Human Rights and Equal Opportunity Commission, Submission to the
Citizenship Taskforce on the discussion paper ‘Australian citizenship:
much more than just a ceremony’ (September 2006), at http://www.humanrights.gov.au/racial_discrimination/report/citizenship_paper_2006.html (viewed 4 June 2009); Human Rights and Equal Opportunity Commission, Submission to the Legal and Constitutional Affairs Committee on the
Australian Citizenship Amendment (Citizenship Testing Bill) 2007 (6 July
2007), at http://www.humanrights.gov.au/legal/submissions/2007/aust_citizenship_amendment.html (viewed 4 June 2009).
is consistent with the UN High Commissioner for Human Rights, Recommended
Principles and Guidelines on Human Rights and Human Trafficking, Report of the
High Commissioner for Human Rights to the Economic and Social Council, UN
Doc E/2002/68/Add.1 (2002). At http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/caf3deb2b05d4f35c1256bf30051a003?opendocument (viewed 4 June 2009). See further E Broderick, Slavery in the 21st Century: A Human Rights Challenge (Speech delivered at the Australian Human
Rights Commission, Sydney, 16 October 2008). At http://www.humanrights.gov.au/about/media/speeches/sex_discrim/2008/20081014_slavery.html (viewed 4 June 2009).
Human Rights Committee, Concluding Observations: Australia (2009), note 9, para
 Australian National
Audit Office, Management of the Australian Government’s Action Plan to
Eradicate Trafficking in Persons, Report No 30 (2008-2009), para 2.10. At http://www.anao.gov.au/director/publications/auditreports/2008-2009.cfm?pageNumber=3 (viewed 4 June 2009).
award was made under the Victims Support and Rehabilitation Act 1996 (NSW) in response to a claim for compensation for sexual assault by a Thai
woman who was trafficked to Australia in 1995 when she was 13: N Craig,
‘Sex slave victim wins abuse claim’, The Age, 29 May 2007. At http://www.theage.com.au/news/national/sex-slave-victim-wins-abuse-claim/2007/05/28/1180205160434.html (viewed 4 June 2009).
could include establishing a federal compensation scheme for victims of crime;
exploring the potential of the Proceeds of Crime Act 2002 (Cth) to
enable the forfeiture of an offender’s assets to provide compensation to
victims and pursuing reparations orders under the Crimes Act 1914 (Cth); and improving the access of trafficked people to information and
legal advice about their existing avenues for making compensation claims,
including claims for the recovery of unpaid wages.
 Australian Government
National Roundtable on People Trafficking, ‘Statement of Outcomes’
(23 October 2008). At http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(C7C220BBE2D77410637AB17935C2BD2E)~TraffickingRoundtableOnPeopleTrafficking-StatementofOutcomes-October2008.doc/$file/TraffickingRoundtableOnPeopleTrafficking-StatementofOutcomes-October2008.doc.
See further Australian Institute of Criminology, Labour Trafficking: key
concepts and issues, Transnational Crime Brief, No. 3 (2009). At http://www.aic.gov.au/publications/tcb/tcb003.html (viewed 4 June 2009).
note 49, art
 ICCPR, above, art
 Crimes Act 1914 (Cth), pt IC, div 2.
 Crimes Act 1914 (Cth), s
 Crimes Act
1914 (Cth), s 23DA(7).
 Crimes Act 1914 (Cth), s
 Crimes Act
1914 (Cth), s
 Crimes Act
1914 (Cth), s
Security Intelligence Organisation Act 1979 (Cth), pt III, div 3.
 Australian Security
Intelligence Organisation Act 1979 (Cth), s
Security Intelligence Organisation Act 1979 (Cth), s
 See Human Rights
and Equal Opportunity Commission, Submission to the Security Legislation
Review Committee (January 2006), at http://www.humanrights.gov.au/legal/submissions/security_legislation_review.html (viewed 4 June 2009); Human Rights and Equal Opportunity Commission, Submission to the Clarke Inquiry on the case of Dr Mohamed Haneef (May
2008), at http://www.humanrights.gov.au/legal/submissions/2008/200805_haneef.html (viewed 4 June 2009).
 Inquiry by the Hon. John Clarke QC into the case of Dr Mohamed Haneef (November 2008), Recommendation 4 at http://www.haneefcaseinquiry.gov.au (viewed 4 June 2009); Parliamentary Joint Committee on Intelligence and
Security, Parliament of Australia, Inquiry into the proscription of
‘terrorist organisations’ under the Australian Criminal Code
(2007), Recommendation 7(b), at http://www.aph.gov.au/House/committee/pjcis/proscription/report/front.pdf (viewed 4 June 2009); Parliamentary Joint Committee on Intelligence and
Security, Parliament of Australia, Review of Security and Counter Terrorism
Legislation (December 2006), Recommendation 2, at http://www.aph.gov.au/house/committee/pjcis/securityleg/report.htm (viewed 4 June 2009); Security Legislation Review Committee, Parliament of
Australia, Report of the Security Legislation Review Committee (2006),
para 18.2, at http://www.ag.gov.au/www/agd/agd.nsf/Page/National_securityReviewsSecurity_Legislation_Review_Committee (viewed 4 June 2009).
 The Hon R McClelland, Statement on the tabling of the Government’s
response to reviews of national security legislation and the public report of
the Inquiry by the Hon. John Clarke QC into the case of Dr Mohamed Haneef (23 December 2008), paras 16 - 18. At http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/50GS6/upload_binary/50gs60.pdf;fileType=application/pdf (viewed 4 June 2009).
 Parliamentary Joint Committee on Intelligence and Security, Inquiry into the
proscription of ‘terrorist organisations’, note 104, Recommendation 7(b); Parliamentary
Joint Committee on Intelligence and Security, Review of Security and Counter
Terrorism Legislation, note 104,
p 21. The Review of Security and Counter Terrorism Legislation supported
many of the recommendations of the earlier report.
 Parliamentary Joint
Committee on Intelligence and Security, Review of Security and Counter
Terrorism Legislation, note 104,
pp 23 – 38.
for example, reports by Australian Muslim Civil Rights Advocacy Network,
available at: http://www.amcran.org (viewed
4 June 2009).
Rights and Equal Opportunity Commission, Ismaع–Listen: National
consultations on eliminating prejudice against Arab and Muslim Australians, 2004. At http://www.humanrights.gov.au/racial_discrimination/isma/index.html (viewed 5 June 2009).
 Security Legislation Review Committee, note 104, p
 Parliamentary Joint
Committee on Intelligence and Security, Review of Security and Counter
Terrorism Legislation, note 104,
Joint Committee on Intelligence and Security, above, para
 Parliamentary Joint
Committee on Intelligence and Security, above; Security Legislation Review
Committee, note 104.
 Australian Human Rights
Commission, Muslim and Community Partnerships, http://www.humanrights.gov.au/partnerships/about.html (viewed 4 June 2009).
 Human Rights and Equal Opportunity Commission, Gender Equality: What matters
for Australian women and men (2008). At http://www.humanrights.gov.au/sex_discrimination/listeningtour/index.html (viewed 4 June 2009).
 Human Rights and Equal Opportunity Commission, above, p 20.
 See Human Rights and
Equal Opportunity Commission, Submission to the Senate Standing Committee on
Legal and Constitutional Affairs on the Inquiry into the Effectiveness of the
Sex Discrimination Act 1984 (Cth) in Eliminating Discrimination and Promoting
Gender Equality (1 September 2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 7 June 2009).
 Human Rights and Equal Opportunity Commission,
 See Senate
Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating
discrimination and promoting gender equality (2008). At http://www.aph.gov.au/Senate/committee/legcon_ctte/sex_discrim/report/index.htm (viewed 7 June 2009).
 Maternity Protection Convention, 2000 (No 183). At http://www.ilo.org/ilolex/cgi-lex/convde.pl?C183 (viewed 9 June 2009).
Human Rights and Equal Opportunity Commission, Submission (No 1) to the
Productivity Commission’s Inquiry into Paid Maternity, Paternity and
Parental Leave (2 June 2008), at http://humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 4 June 2009); Human Rights and Equal Opportunity Commission, Submission (No 2) to the Productivity Commission’s Inquiry into Paid
Maternity, Paternity and Parental Leave (24 November 2008), at http://humanrights.gov.au/legal/submissions/2008/20081124_maternity.html (viewed 4 June 2009).
 Publications from the Commission’s two-year Women, Men, Work and Family
project are available at http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 4 June 2009).
 Australian Human Rights Commission, Submission to the Australian Government
Department of Education, Employment and Workplace Relations on the Discussion
Paper National Employment Standards Exposure Draft (4 April 2008). At http://humanrights.gov.au/legal/submissions/2008/20080404_deewr.html (viewed 4 June 2009).
Human Rights and Equal Opportunity Commission, Submission to the Inquiry into
the Effectiveness of the Sex Discrimination Act 1984, note 117,
Rights and Equal Opportunity Commission, above.
 R Clare, Retirement
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poverty measurement tool for this study is 50% of the median income poverty
line. B Heady & D Warren, Families, Incomes and Jobs, Volume 3: A
Statistical Report on Waves 1 to 5 of the HILDA Survey (2008), p 55. At http://www.melbourneinstitute.com/hilda/statreport/statreport-v3-2008.pdf (viewed 4 June 2009).
Tanton et al, Old Single and Poor: Using Microsimulation and Microdata to
Analyse Poverty and the Impact of Policy Change Among Older Australians (2008), p 15. At https://guard.canberra.edu.au/natsem/index.php?mode=download&file_id=880 (viewed 4 June 2009).
 Australian Human Rights Commission, Submission to Australia’s Future
Tax System (Retirement Income System) (27 February 2009). At http://www.humanrights.gov.au/legal/submissions/2009/20090227_tax.html (viewed 4 June 2009).
 Senate Committee on Legal and Constitutional Affairs, Effectiveness of the
Sex Discrimination Act 1984, note 119.
 Australian Bureau of
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At http://www.abs.gov.au/ausstats/abs@.nsf/mf/6302.0/ (viewed
4 June 2009).
Rights and Equal Opportunity Commission, Sexual harassment: Serious business,
Results of the 2008 Sexual Harassment National Telephone Survey (2008). At http://www.humanrights.gov.au/sexualharassment/serious_business/index.html (viewed 4 June 2009).
 Human Rights and Equal Opportunity Commission, Submission to the Inquiry into
the Effectiveness of the Sex Discrimination Act 1984, note 117.
 J Mouzos and T Makkai, Women’s Experiences of Male Violence: Findings
from the Australian Component of the International Violence Against Women Survey
(IVAWS) (2004), p 3. At http://www.aic.gov.au/publications/rpp/56/RPP56.pdf (viewed 4 June 2009).
 Australian Bureau of Statistics, Personal Safety Survey (Reissue) (2005),
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 VicHealth, The Health Costs of Violence: Measuring the burden of disease
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 Australian Institute of Health and Welfare, Homeless
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 Women With Disabilities Australia, Forgotten Sisters: A Global Review of
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 Australian Human Rights Commission, Submission to the Review Panel on
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 Senate Standing
Committee on Legal and Constitutional Affairs, Effectiveness of the Sex
Discrimination Act, note 119,
 Senate Standing Committee on Legal and Constitutional Affairs, above,
note 49, arts 2, 12, 18,
 See further Human
Rights and Equal Opportunity Commission, Report of initial consultation of
the Sex and Gender Diversity Project (July 2008). At http://www.humanrights.gov.au/genderdiversity/consultation_report2008.html (viewed 4 June 2009).
 Australian Human Rights Commission, Sex Files: the legal recognition of sex
in documents and government records, Concluding Paper of the sex and gender
diversity project (2009), at http://humanrights.gov.au/genderdiversity/sex_files2009.html (viewed 1 June 2009).
Commission’s views on the role of a National Disability Strategy in
implementing the Disability Convention are set out in full in: Australian Human
Rights Commission, National Disability Strategy: Australian Human Rights
Commission Submission (November 2008). At http://www.humanrights.gov.au/disability_rights/commonwealth/NDS.htm
 See, for example, Human
Rights and Equal Opportunity Commission, Submission to the Joint Standing
Committee on Electoral Matters Inquiry into the 2007 federal election (15
May 2008). At http://www.aph.gov.au/house/committee/em/elect07/subs/sub097.pdf (viewed 4 June 2009).
 Joint Standing Committee on Electoral Matters, Report on the 2007 federal
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election electronic voting trials (viewed 11 June 2009).
 In 2006, the Australian Government passed legislation which excluded all people serving a sentence of imprisonment, of any length, from voting. The High Court later found that these amendments were constitutionally invalid: Roach v Electoral Commissioner (2007) 233 CLR 162.
 UN Human Rights Committee, General Comment No. 25: The right to participate
in public affairs, voting rights and the right of equal access to public service
(Art. 25), UN Doc CCPR/C/21/Rev.1/Add.7 (1996), para 14. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/d0b7f023e8d6d9898025651e004bc0eb?Opendocument (viewed 4 June 2009).