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

The year in review

Leading and influencing advocacy on human rights

Informing human rights frameworks

Australian Human Rights Framework

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

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

National Human Rights Action Plan

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

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

Australia's Universal Periodic Review on human rights

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

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

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

Stronger human rights scrutiny

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

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

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

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

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

Complaint of discrimination in recruitment on the basis of criminal record

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

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

Building a diverse, harmonious Australia

National Anti-Racism Partnership and Strategy

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

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

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

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

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

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

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

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

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

Alleged racial discrimination in the provision of goods and services

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

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

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

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

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

National Disability Strategy

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

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

These areas include:

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

Promoting women's leadership

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

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

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

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

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

Respecting the rights of Aboriginal and Torres Strait Islander peoples

Legislative changes

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

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

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

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

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

Complaint of racial discrimination in employment

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

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

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

Social Justice and Native Title reports

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

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

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

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

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

(Social Justice and Native Title Reports Evaluation Project.)

Constitutional Reform

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

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

The recommendations for constitutional change were:

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

Close the Gap

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

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

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

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

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

Working internationally

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

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

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

Working with People with Disabilities in Pacific Island countries

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

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

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

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

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

Human rights technical cooperation

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

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

Other international work

September 2011

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

October 2011

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

February 2012

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

March 2012

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

April 2012

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

May 2012

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

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

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

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

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

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