Building human rights into law and practice - Annual Report 2011-2012: Australian Human Rights Commission

The year in review

Building human rights into law and practice

Advocating for the rights of children

National Children's Commissioner

On 25 June 2012, the Australian Parliament passed legislation to establish Australia's first National Children's Commissioner. The Commissioner will be a member of the Australian Human Rights Commission.

The National Children's Commissioner will take a broad advocacy role to promote public awareness of issues affecting children. The Commissioner will be required to submit an annual report to the federal Parliament on the status of children's enjoyment of human rights in Australia. The Commissioner will consult directly with children and representative organisations, as well as state children's commissioners, and has functions to conduct research and education programs, and monitor Commonwealth legislation, policies and programs that relate to children's rights, well-being and development.

The new Commissioner is expected to take office by the end of 2012.

United Nations Committee on the Rights of the Child

During 2011-2012, the UN Committee on the Rights of the Child considered Australia's fourth report on its implementation of the Convention on the Rights of the Child. Prior to Australia's appearance before the UN Committee in June 2012, the Commission provided information to the UN Committee in late 2011, and again in May 2012.

This material focused on a broad range of key child rights issues including violence, bullying and harassment, inequalities and discrimination faced by Aboriginal and Torres Strait Islander children and children with disabilities, immigration detention and homelessness, among others. The information is available online at: www.humanrights.gov.au/legal/submissions/2011/201108_child_rights.html .

Inquiry into the treatment of individuals charged with people smuggling offences who say they are children

In November 2011, the Commission President began an Inquiry into the treatment of individuals suspected of people smuggling offences, who say that they are children. The Inquiry, which concerns the human rights of children, considered all 180 cases where age has been in dispute since September 2008.

The majority of these individuals are Indonesian nationals who worked as crew on boats bringing asylum seekers to Australia.

The Inquiry process prompted an independent review of 28 cases where individuals who had said that they were children were convicted of people smuggling offences. In May and June 2012, the Attorney-General released 15 individuals early on licence on the basis that they may have been children on their arrival in Australia.

The report of the inquiry will be released in July 2012.

‘Our children are our future and if we do not value them, we cannot ever hope to protect them. A National Children's Commissioner will put their needs front and centre.'

(The Hon Nicola Roxon MP is the Australian Attorney-General.)

Asylum Seekers and immigration detention

Asylum seekers and persons detained in immigration centers are vulnerable individuals with limited capacity to advocate in their own interests. The Commission, for this reason, has long monitored whether Australia is meeting its international human rights obligations in its treatment of them.

The Commission contends that those obligations mean that immigration detention should be used only as a last resort, and then only for the shortest practicable time. Asylum-seekers and refugees should always reside in the community unless they pose an unacceptable risk.

Monitoring detention centres

Throughout 2011, we conducted monitoring visits to immigration detention facilities at Villawood in Sydney, Curtin in Western Australia and Inverbrackie in South Australia. Visits involved site inspections, interviews with staff and meetings with detainees. Comprehensive public reports on conditions of detention were published regarding the visits to Villawood and Curtin.

While we acknowledged the Government's progress in moving towards community detention arrangements, particularly for children, our concern remains high for those individuals who are recognized as refugees and have received adverse security assessments.

These people are held in detention without access to a review process in Australia. They will remain in detention until conflict in their home country abates, or until a third country will agree to resettle them. Currently this includes approximately 50 people, some of whom have young children with them.

Complaint regarding immigration detention

The complainant advised that he is from Afghanistan and had been in immigration detention for 18 months. The complainant claimed that he had not been released into community detention despite his deteriorating health and alleged that his ongoing detention was arbitrary and breached Article 9 of the International Convention of Civil and Political Rights.

In response to the complaint, the Commonwealth department indicated the complainant's request for community detention had been escalated. The complaint was subsequently resolved when the complainant was released to reside with his son under community detention.

‘In October 2010, the Government announced its intention to transfer the majority of children in immigration detention into community detention by June 2011 and it has done so. As at 20 June 2012, a total of 4088 people, including 1910 children, had been approved for community detention since the October 2010 announcement. In the previous month there were a total of 635 children in community detention and 281 children in closed detention facilities. In November 2011, the Government announced that eligible asylum seekers who had arrived by boat would be progressively considered for release on bridging visas following satisfactory completion of initial health security and identity checks. As at 20 June 2012, 2614 people had been released from detention on bridging visas since that time.'

(From 20 Years of Mandatory Immigration Detention: the imperative for community-based arrangements for those who seek Australia's protection. Speech to Australian Refugee Association, Catherine Branson QC, President, Australian Human Rights Commission, Friday 22 June 2012.)

Inquiries on immigration detention related issues

The Commission also participated in several significant public inquiries. We made a substantial submission to the inquiry of the Joint Select Committee on Australia's Immigration Detention Network and a submission to the Inquiry into Australia's agreement with Malaysia in relation to asylum seekers, in which we made recommendations in relation to abolishing the excision regime under the Migration Act.

In April 2012, we publically welcomed the release of the report on Australia's Immigration Detention Network. The report made recommendations that:

• following initial health, identity, character and security checks, asylum seekers be granted a bridging visa or released into community detention.
• people held in immigration detention should be accommodated in metropolitan rather than remote facilities wherever possible.
• the Minister for Immigration be replaced as guardian of unaccompanied minors in immigration detention.
• consistent child protection arrangements be implemented across the detention network
• effective review mechanisms be made available to people who have received adverse security assessments from ASIO, and
• staffing levels within immigration detention be reviewed.

The Commission continues to monitor government progress in relation to this report and to advocate for further reform in the interests of protecting the mental and physical health of asylum seekers and refugees.

Earlier this year in Australia, the Commission President participated in a UNHCR Roundtable on National Security Assessments for Refugees, Asylum Seekers and Stateless Persons.

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT)

Article 1: The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty in order to prevent torture and other cruel inhuman or degrading treatment or punishment.

The Australian Government took a significant step toward establishing greater oversight and inspection of its places of detention by signing the OPCAT in 2009.

The next stage in the process is for Australia to prepare for ratification of the treaty. The Commission has been regularly engaging with the government in regard to the practicalities of ratifying OPCAT. In February, we supported the tabling of a national interest analysis and contributed to the inquiries of the Joint Standing Committee on Treaties.

As it is one of the core international human rights treaties, we have been strong advocates for the ratification of OPCAT and have engaged with both the government and the public regularly to demonstrate what this might look like.

One of the challenges of ratification has been making the decision about how a National Preventative Mechanism would be established in a federal system such as ours.

We support the announcement of the approval for ratification by the Joint Standing Committee on Treaties on 21 June this year.

Promoting gender equality in employment

Part of our advocacy work in relation to sex discrimination and gender equality in Australia is devoted to ensuring the economic and financial security of all women.

In 2009, the Commission's Accumulating Poverty? Women's experiences of inequality over the lifecycle report examined the gender gap in retirement savings. It identified three strategies to redress women's disadvantage in the current retirement income system, including recognising and rewarding unpaid caring work.

As a means of continuing advocacy for reform in this area, we have engaged the Social Policy Research Centre at the University of NSW to undertake further research.

This significant and innovative research will identify models for reforms that could properly recognise and compensate those who undertake unpaid caring work. It will also inform the evidence-based development of employment and retirement income strategies and provide valuable information for policy and law-makers, academics and others. The project is funded by The Westpac Group and commenced in January 2012.

Our advocacy work contributed to a landmark decision by Fair Work Australia, at the beginning of February 2012, to award more than 200,000 social and community services sector workers pay-rises of between 19 and 41%. In arriving at the decision, Fair Work Australia recognised that gender had been a significant cause of the pay gap.

In September 2011, the Commission supported the Government's agreement to remove gender restrictions in Australian Defence Force combat roles. This will mean women will be able to work in any position in the ADF, including combat roles, provided they have the ability to meet all of the demands of the role.

Complaint of pregnancy discrimination in employment

The complainant was employed as a manager with the respondent consultancy firm. The complainant said that after she announced her pregnancy, she was given negative performance reviews and subsequently told that her employment would be terminated.

On being notified of the complaint the respondent indicated a willingness to try to resolve the matter by conciliation. The complainant did not wish to return to work with the company and the complaint was resolved with an agreement that the company would pay her $35,000 in compensation for future loss of income and provide her with a statement of service.

Complaint of disability discrimination in sport

The complainant who is deaf, qualified to compete in the respondent's athletic meet. The complainant said that because of his disability he was unable to hear the starting gun and he claimed his request for a visual starting prompt for the upcoming athletic meet had been refused.

The complaint was resolved with an agreement that a visual prompt would be provided at the upcoming athletic meet and all future athletic meets arranged by the respondent. The respondent also agreed to provide a number of other adjustments including a sign language interpreter in the call room to communicate race and safety instructions, permission for the complainant to start races from a standing position, permission for the complainant to use his hearing device during races and to be allocated the lane closest to the starting gun or with the best view of the hand signal.

Protection from discrimination on the basis of sexual orientation and sex and/or gender identity

The Commission has long advocated for federal legal protection against discrimination on the basis of sexual orientation and sex and/or gender identity.

In September 2011, we called for greater inclusion of people who identify as lesbian, gay, bisexual, transgender, intersex and queer in domestic violence responses.

Also during 2011-12, we were asked to intervene in the State of WA v AB & AH and Gender Reassignment Board case in relation to their recognition certificate under the WA legislation. In June, the applicants were successful in their high court appeal.

The Commission was also invited by the Family Court of Australia to intervene in two matters relating to young people who wanted to have medical treatment for gender dysphoria. The court sought the Commission's assistance given its previous intervention in other similar matters.

Improving access for people with disability

The Commission has long advocated for a rise in captioning services for cinema and television, which would take place over a number of years.

In order to encourage this increase, we have on occasion granted temporary exemptions from complaints under the Disability Discrimination Act to free-to-air and subscription broadcasters on the condition that they make certain commitments to improve access and opportunity within a reasonable period.

Television

In April 2012, we reached agreement with the Australian Subscription Television and Radio Association in the Administrative Appeals Tribunal in regards to the temporary exemption application for captioning levels.

In June, we supported passage of the Broadcasting Services Amendment (Improved Access to Television Services) Bill 2012. The amendment will make captioning requirements a license condition and obligation under the Broadcasting Services Act 1992 for subscription TV and television narrowcasting licensees. This will apply to commercial and national television broadcasters.

Cinema

In 2010, with the assistance of the Commission and the government, a Cinema Access Implementation Plan was agreed upon by the four major cinema chains with disability representatives and advocacy organisations. The agreement provided for 242 accessible screens in 132 cinema complexes across Australia by the end of 2014.

By the end of 2012, cinemas are committed to roll out 145 accessible screens. As 123 screens were already accessible at the end of June, it is anticipated that this target will be exceeded.

The roll-out of accessible technology, as outlined in the Plan and agreed to by the cinema chains, involves the installation of closed captioning and audio description.

Books

We have also lobbied for additional funding to increase the number of accessible publications that can be made available internationally to developing countries.

We joined the President of the World Blind Union in urging the Australian government to actively pursue a treaty that would make an exception to copyright law that would increase the number of books that could be made available in accessible formats to people who are blind or have low vision in developing countries. While only five percent of all books are produced in accessible formats in Australia, only one percent are available in developing countries.

‘There have been some major achievements on information access. One example is a series of increases in TV captioning which were achieved under the DDA now being wrapped up in legislation ... It lays down a timetable towards 100% captioning within mainstream television regulation.'

(Commissioner Innes)