Australia's Universal Periodic Review 2014 Progress Report

2014 progress report

Australia’s Universal Periodic Review

Contents

2014 progress report 1

1Introduction 3

2This 2014 UPR Progress Report is the fourth in a series of annual reports developed in the lead up to Australia’s Second Cycle Universal Periodic Review (UPR) at the United Nations (UN) Human Rights Council. The second cycle review is tentatively scheduled for 9 November 2015. 3

3The reports are lodged with the Human Rights Council annually to provide accountability for Australia’s progress under the UPR. 3

What is the Universal Periodic Review? 3

4The UPR is a unique process which involves a review of the human rights records of all 193 UN Member States once every four years. It is a Member State-driven process, under the auspices of the Human Rights Council. As it is a peer review process, recommendations are made by other governments rather than by independent experts. The UPR is designed to ensure equal treatment for every country when their human rights situations are assessed. 3

5The UPR was created through the UN General Assembly on 15 March 2006. The first cycle reviews of all Member States were completed by October 2011. The second cycle of reviews commenced in 2012 and are due to be completed by 2016. 3

6The first cycle review of Australia was conducted in 2011. 52 countries asked questions about Australia’s human rights record and made 145 recommendations. The Australian Government accepted in full or in part over 90 per cent of these and also made a number of voluntary commitments to actions. 3

7The 2014 report has been prepared by the Australian Human Rights Commission (the Commission) on behalf of the Australian Council of Human Rights Authorities (ACHRA), a body that brings together all Commonwealth, State and Territory anti-discrimination and human rights bodies. 3

8Over the last 12 months there have been some positive developments in the protection and promotion of human rights in Australia. ACHRA welcomes the following achievements: 3

9Despite these positive developments, ACHRA is concerned that there has been limited action taken to advance human rights across a range of subject areas. Many actions committed to through the UPR process, and reflected in Australia’s National Action Plan on Human Rights, have not been implemented or advanced over the past year. 4

Implementation of UPR recommendations 4

10This report contains a table listing the 145 recommendations made to Australia in the first round of the UPR. It indicates which recommendations have been: 4

11ACHRA is concerned at regressions in human rights protection in relation to asylum seekers. Of particular concern is the lengthy detention of asylum seekers, including children, through: Australia’s mandatory immigration detention system; the use of third country processing; and the removal of direct references to Australia’s non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR), Convention on the Rights of the Child (CRC), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Convention Relating to the Status of Refugees from the Migration Act 1958 (Cth). Bills still before Parliament also raise significant concerns about human rights protection, such as amendments to the Australian Citizenship Act 2007 (Cth), and confirm that refugee law and asylum seeker policy remains one of Australia’s biggest human rights challenges. 4

12ACHRA continues to be concerned at the lack of progress towards ratifying the Optional Protocol to the Convention against Torture (OPCAT), as well as lack of progress in advancing commitments made in the UPR process to review reservations to treaties. 4

13This report is organised in accordance with the thematic groupings and headings that are used in the UPR reporting process. 4

14Background and framework for promotion and protection of human rights 5

14.1Scope of international obligations 5

15Australia prides itself on its commitment to the promotion and protection of human rights and has announced its candidacy for election to the Human Rights Council for the 2018–20 term. The Australian Government considers that the promotion and protection of human rights is crucial to achieving peace, security, freedom and dignity for all. 5

16The Australian Government made several voluntary commitments at the UPR first cycle review. ACHRA acknowledges the fulfilment of the commitment to appoint a full time Race Discrimination Commissioner. However, ACHRA is disappointed that there continues to be limited action taken to implement other commitments such as the proposed review of Australia’s reservations to human rights treaties and the tabling in Parliament of concluding observations from treaty bodies. 5

17During the UPR Review, several countries encouraged the Australian Government to ratify the OPCAT. Australia signed the OPCAT on 19 May 2009, but has not yet ratified it. It is practice in Australia that new treaty obligations are not entered into prior to a National Interest Analysis being conducted and reviewed by the Joint Standing Committee on Treaties (JSCOT) of the federal Parliament. In 2012, the JSCOT recommended that the government ratify the OPCAT. However, there has been limited progress towards this since 2012: 5

18The Commission has called for the Australian Government to expedite ratification of the OPCAT on a number of occasions, most recently in the Commission’s Submission to the UN Committee Against Torture. 5

19In 2014, a series of reforms to strengthen the UN treaty body system have been implemented by the UN. The reforms were prompted by a report from the UN High Commissioner for Human Rights (Navanethem Pillay 2008–2014), and are set out in UN General Assembly (GA) Resolution Number 68/268. ACHRA encourages the government to adopt the state relevant processes set out in the UNGA resolution. 6

20ACHRA welcomes the Australian Government’s ongoing assistance to representatives of people with disabilities to participate in key international forums on human rights. This assistance has enabled the capacity building of more than 30 participants (including six young emerging leaders) from more than 10 disability peak organisations and disability advocacy organisations to attend and participate in international events related to the Convention on the Rights of Persons with Disabilities. 6

21ACHRA is nevertheless disappointed that the Australian Government has taken no action to consider or review its position on the International Convention for the Protection of All Persons from Enforced Disappearance and on the International Labour Organisation Convention concerning Indigenous and Tribal Peoples in Independent Countries. 6

21.1National framework 6

22Australia has limited legislative protection of human rights at a federal level. The protection available is largely confined to broad protections against discrimination. ACHRA notes that the ACT and the state of Victoria have legislative protection of human rights. 6

23Last year’s UPR Progress Report recorded that the previous Australian Government released exposure draft legislation to consolidate anti-discrimination law and address technical, definitional and operational differences between existing federal anti-discrimination laws. Due to significant public concern on several matters including the grounds of discrimination covered and changes to the onus of proof, the bill did not proceed beyond the draft exposure stage. Accordingly, significant technical and operational differences between the four existing federal discrimination laws remain. ACHRA encourages the Australian Government to consider options to reduce this complexity and create better consistency between the laws. This would not only assist the general community but also the business community, particularly small business. 6

24The President of the Commission has described the Australian approach to the protection of human rights as a form of ‘exceptionalism’: 6

25ACHRA is concerned that the Australian Government has not yet implemented outstanding recommendations from the 2008 Senate Inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equality, and encourages the Australian Government to implement these amendments. 7

26The Australian Government has continued to support a number of initiatives under the Human Rights Framework, in particular, the Parliamentary Joint Committee on Human Rights (PJCHR). The PJCHR has quickly established itself as an important mechanism to implement Australia’s international human rights obligations at the domestic level and has continued its role to: 7

27Since its establishment the PJCHR has produced 35 reports to Parliament scrutinising hundreds of bills and legislative instruments and highlighting those bills which it considered to either raise human rights concerns or to be incompatible with human rights. In 2014 the PJCHR’s reports have included thematic examinations of three particular policy areas which were of concern: counter-terrorism legislation; migration and border protection; and social security. The PJCHR has continued to be concerned about the Stronger Futures measures directed towards Aboriginal communities in the NT and is currently undertaking a 12 month review to consider the evidence and test the continuing necessity for the Stronger Futures measures. The PJCHR intends to table its report in mid-2015. 7

28ACHRA welcomed the release of the National Human Rights Action Plan (NAP) in December 2012. The Australian Government then commented that all UPR recommendations accepted or accepted in-part were referenced against specific actions in the NAP. The NAP included a monitoring arrangement that involves progress reporting to coincide with the Australian Government’s next UPR report planned for 2015. 7

29Disappointingly, many of the measures committed to in the Australian Human Rights Framework and in the NAP have not occurred or have dissipated. For example: 7

30Human rights education is foundational to the realisation of human rights and fundamental freedoms. Accordingly, human rights education must remain as a key priority and commitment for the Australian Government. The Commission has continued to host the Australian Public Service Human Rights Officer’s Network in order to support Australian Public Service employees to understand how human rights relate to their work. The Commission has also developed a suite of resources, to be launched in February 2015, which will assist businesses to understand, promote and protect human rights. The Victorian Equal Opportunity and Human Rights Commission has also established a Victorian Public Sector Human Rights Network for those working in the Victorian Public Sector. 8

31The Commission has continued to work with the Australian Curriculum, Assessment and Reporting Authority to mainstream human rights education in the national school curriculum. In December 2014, the Commission released a suite of resources as part of the RightsEd series that have been mapped to the Australian Curriculum. The resources focus on the topics of anti-racism and disability rights, and are linked to the History, Geography and Health and Physical Education curricula. The Commission has also developed a mapping resource for teachers called Human Rights Examples for the Australian Curriculum. This mapping resource is designed as a guide for teachers to provide human rights related examples that are consistent with key learning area content descriptions. 8

32Additionally, the Commission has worked in partnership with ABC Splash to create an interactive educational website called Choose Your Own Statistics. The content of this website has been closely mapped to the Australian Curriculum for Mathematics and is designed to assist children and young people in years 5 to 8 to analyse data in order to understand important human rights issues in Australian society. 8

33The ACT celebrated the tenth anniversary of the Human Rights Act 2004 (ACT). To mark the occasion the ACT Human Rights Commission and the Australian National University jointly presented a symposium on the Human Rights Act 2004 (ACT). In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) is scheduled for a review after eight years of operation in 2015. ACHRA notes that a number of issues arising from the Charter’s four year review remain outstanding. ACHRA calls on the Victorian Government to ensure that any future amendments to the Charter do not reduce human rights protections. 8

33.1Equality before the law and non-discrimination 8

34Numerous countries called upon Australia to intensify efforts to address the unacceptable level of disadvantage experienced by Aboriginal and Torres Strait Islander peoples. Australia was requested to ensure the full and effective implementation of the UN Declaration on the Rights of Indigenous Peoples (the Declaration). 8

35During 2014 a series of consultations about giving effect to the Declaration were held with Aboriginal and Torres Strait Islander communities and organisations. The Declaration Dialogues were conducted by the Commission in partnership with the National Congress of Australia’s First Peoples. The Declaration Dialogues revealed that communities find the Declaration to be an empowering tool they can use to assert their rights in everyday life and that businesses are demonstrating their willingness and commitment to use the Declaration as a basis for their engagement with Aboriginal and Torres Strait Islander communities. 8

36ACHRA is concerned that the continuation of the important work of the National Congress of Australia’s First Peoples has been threatened by budget cuts of $15 million. Although the Australian Government continues to declare its support for the Declaration, progress to implement it has been slow. 9

37ACHRA does note and commends the leading role played by the Australian Government at the World Conference on Indigenous Peoples in September 2014. The World Conference Outcomes Document commits Member States to develop, in consultation and cooperation with Indigenous peoples, national measures to achieve the ends of the Declaration. Australia agreed to the Outcomes Document, which is a collective commitment by Member States to focus action on the Declaration and Indigenous rights. ACHRA welcomes this significant commitment, however it notes that more work needs to be done to improve engagement and action to embed the Declaration in activities by all sectors of society including governments, civil society, the private sector, and by Aboriginal and Torres Strait Islander communities. 9

38In particular, ACHRA calls for the development of a National Strategy to give effect to the Declaration and the inclusion of the Declaration in the definition of human rights in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). 9

39Several countries called upon Australia to commit to the recognition of Aboriginal and Torres Strait Islander people in the Australian Constitution. ACHRA acknowledges that a number of steps have been taken towards achieving recognition of Aboriginal and Torres Strait Islander people in Australia’s Constitution: 9

40ACHRA commends the government for these developments. However, ACHRA is concerned that the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) is due to sunset in March 2015 and the Australian Government has not finalised a model for constitutional change nor announced a timeframe for a referendum to occur. ACHRA calls on the Australian Government to finalise a model for recognition so that the process of building community understanding and support can occur. 9

41ACHRA supports the work of the Close the Gap Campaign for Indigenous Health Equality. On 12 February 2014, Prime Minister Abbott presented his first Closing the Gap Prime Minister’s Report to the House of Representatives. The report revealed that the targets to halve the gap in child mortality within a decade and to have 95 per cent of remote children enrolled in preschool are on track. Whilst Aboriginal and Torres Strait Islander life expectancy has modestly increased, there has been almost no progress in closing the life expectancy gap. It should be noted that the current data represents changes occurring prior to the Closing the Gap Strategies having their full impact. ACHRA believes time must be allowed for improvements in life expectancy rates. Life expectancy is a summary measure of overall population health, and can only be expected to change at a slow pace. Echoing the campaign, ACHRA believes the persistence of life expectancy inequality demonstrates why the national effort to close the life expectancy gap is required, how much time is required and why this task must be placed above politics and remain a constant across political cycles. 10

42ACHRA welcomes the Australian Government’s commitment to the National Aboriginal and Torres Strait Islander Health Plan 2013–2023 (Health Plan) launched in July 2013. ACHRA acknowledges and welcomes the work commenced by the Australian Government on an implementation plan for the Health Plan. Importantly, this work is being undertaken in partnership with Aboriginal and Torres Strait Islander leadership in the sector. ACHRA however remains concerned about ongoing and sustainable nationally coordinated funding. The National Partnership Agreement on Closing the Gap in Indigenous Health Outcomes expired in 2013. In December 2013 the Council of Australian Governments announced it would not seek to renew the agreement and would focus efforts on bilateral agreements with each jurisdiction. This approach could potentially fragment the Closing the Gap Strategies from a national to jurisdictional response. ACHRA calls on the Australian Government to retain its leadership position in working with state and territory governments to ensure that funding arrangements facilitate a nationally coordinated approach. 10

43ACHRA notes that Aboriginal and Torres Strait Islander women are 45 times more likely to be victims of domestic and family violence and 35 times more likely to be hospitalised as a result of violence-related assault than non-Indigenous women in Australia. ACHRA considers that culturally appropriate and adequately funded prevention and support services are needed and supports the full engagement of Aboriginal and Torres Strait Islander women in designing and delivering these services. 10

44Several countries raised the issue of disproportionate representation of Aboriginal and Torres Strait Islander peoples within the criminal justice system. The overrepresentation of Aboriginal and Torres Strait Islander peoples as both victims and offenders in the criminal justice system remains one of the most glaring disparities between Aboriginal and Torres Strait Islander Australians and non-Indigenous Australians. ACHRA remains concerned about high and increasing incarceration rates of Aboriginal and Torres Strait Islander children and adults. 10

45ACHRA advocates that the solution to this issue lies in focusing on creating safer communities where violence is not tolerated, where victims have access to the entire spectrum of support services and where the emphasis is on the prevention of crime and violence occurring in the first place. To achieve this, ACHRA encourages the Australian Government to adopt justice reinvestment programs as well as justice targets and benchmarks. This approach looks beyond offenders, to the needs of victims and communities. A portion of the funds for imprisonment is diverted to local communities where there is a high concentration of offenders. The money that would have been spent on imprisonment is reinvested into services that address the underlying causes of crime in these communities, such as parenting programs, early education and care, youth mentoring, numeracy and literacy programs, training and employment pathways. 11

46The Senate Legal and Constitutional Affairs Committee has recommended that the Australian Government should support justice reinvestment trials. In particular, the Senate Committee has recommended that any trial should actively involve communities in the process, be conducted on the basis of rigorous justice mapping (the identification of place-based communities and of existing services and gaps in services required to reduce crime) over a minimum time frame beyond the electoral cycle and be subject to a robust evaluation process. 11

47ACHRA encourages the Australian Government to adopt justice reinvestment approaches and justice targets, such as a target to halve the gap in rates of incarceration for Aboriginal and Torres Strait Islander peoples. Adopting justice targets in line with existing strategies to address Indigenous disadvantage, such as through the Close the Gap campaign will provide additional visibility, clear benchmarks and targeted action to this area. 11

48At a state level, the Victorian Equal Opportunity and Human Rights Commission completed research in 2013 which confirmed the compelling need for a more comprehensive and effective approach to reducing the increasing incarceration of Aboriginal and Torres Strait Islander women, noting that 80 per cent of Aboriginal and Torres Strait Islander women in Victorian prisons are mothers. Accordingly, preventative and diversionary responses must be tailored to the particular needs and circumstances of these women. 11

49ACHRA welcomes the inclusion of the development of diversionary options for Koori women as an action item under the Victorian Aboriginal Justice Agreement 3 (AJA3) and the re-affirmation of this commitment by the Victorian Government in 2012. A residential diversion facility remains the highest priority for the Koori Caucus of the Aboriginal Justice Forum, Victoria. 12

50ACHRA notes the recent report by the Commission into the imprisonment of four Aboriginal men for a number of years in maximum security prisons in the NT, despite having existing cognitive disabilities and otherwise being found unfit to stand trial by reason of insanity. The Commonwealth were found to have failed to work with the NT government to provide adequate accommodation and support services. This also included a failure to act in line with a number of international law obligations, as articulated in the ICCPR and the International Convention on the Elimination of All Forms of Racial Discrimination. The Commission made a number of recommendations about ways to improve support services, access to advice and accommodation for people with cognitive disabilities when faced with a custodial sentence. The Commission’s report also stressed the need for the Commonwealth to cooperate with the NT to develop model service system standards for the detention of people with a cognitive impairment. 12

51Gender equality was raised by a number of countries. ACHRA commends the Australian Government for continued support of the National Women’s Alliances. In the area of pay and employment, ACHRA welcomes the Workplace Gender Equality Act 2013 (Cth), and the recent release of the first benchmark data using the reporting framework. The benchmark data identified the under-representation of women in management positions with women comprising only 26.1 per cent of management positions and 17.3 per cent of Chief Executive Officer positions. The data confirmed a gender pay gap for full-time remuneration of 19.9 per cent, and a gender pay gap of full-time total remuneration of 24.7 per cent. The data also identified gaps in the policies and strategies within workplaces to combat gender inequality. ACHRA welcomes the release of the data and emphasises the importance of maintaining the collection of workplace gender equality data. 12

52Violence against women remains a critical and endemic issue in Australia with statistics suggesting that 41 per cent of women aged 18 and over have experienced violence in their lifetime. ACHRA notes that the Australian Government has taken significant positive steps to reduce violence against women in the last five years. In particular, through the National Plan to Reduce Violence against Women and their Children 2010–22 delivered through four three-year Action Plans. ACHRA welcomes the development of plans for every state and territory, and initiatives under these plans such as a Crisis Support Scheme in the ACT. ACHRA also welcomes the establishment of the National Foundation to Prevent Violence against Women and their Children (Ourwatch) and the establishment of Australia’s National Research Organisation for Women’s Safety. 12

53In November 2011 the federal Parliament enacted the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) which seeks to respond more effectively to domestic and family violence and child abuse in the family law system. In June 2013, the federal Parliament enacted the Fair Work Amendment Act 2013 (Cth) that expanded the right to request a flexible working arrangement to include those experiencing or supporting an immediate family or household member who is enduring violence in the family or household. 13

54ACHRA remains concerned that a range of crisis and longer term support services for women experiencing violence continues to be under-resourced, and that there continue to be inadequate levels of specific support available for women living in rural and remote areas, women from culturally and linguistically diverse backgrounds, Aboriginal and Torres Strait Islander women, women with disabilities, as well as lesbian, trans and intersex women. ACHRA recommends an inclusive implementation of the National Plan to Reduce Violence against Women and their Children that accommodates all women’s needs and includes adequate, sustainable funding for specific programs and services, including prevention programs, critical response services, accommodation services and legal services. 13

55ACHRA welcomes continued periodic data collection, including regular prevalence surveys such as the Australian Bureau of Statistics’ Personal Safety Survey and the National Community Attitudes to Violence Against Women Survey, and notes that cross-jurisdictional data is essential to inform public policy responses to violence against women. ACHRA notes however the limited available data on the experiences of violence of specific groups of women, including culturally and linguistically diverse women, Aboriginal and Torres Strait Islander women, women with disabilities and lesbian, trans and intersex women, and recommends addressing this gap as a matter of priority. 13

56ACHRA remains concerned at the prevalence of discrimination in the workplace, including discrimination on the basis of pregnancy, parental leave and return to work. The recent National Review on discrimination in the workplace related to pregnancy, parental leave and return to work found that one in two women reported that they had experienced these forms of discrimination. 13

57ACHRA also remains concerned about the significant gap in women’s retirement savings with women on average retiring with half the retirement savings of men. ACHRA notes that the retirement savings pay gap is caused by a range of factors including the gender pay gap, discrimination in the workplace, the disproportionate amount of unpaid care work carried out by women, and that women live longer. ACHRA urges the Australian Government to examine a range of options for addressing this issue such as those outlined in the Commission’s Investing in Care report. 13

58ACHRA acknowledges the commitment of the senior leadership of the Australian Defence Force to cultural reform including its efforts towards ensuring that the organisation is diverse and inclusive. ACHRA also commends Victoria Police for recently commissioning an independent review into sex discrimination and sexual harassment, including predatory behaviour, amongst Victoria Police personnel. 13

59Several countries posed questions on Australia’s progress in protecting and promoting the rights of the child. ACHRA is disappointed to note that the Australian Government has not yet formed a formal position on the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (OPCP) which establishes a communications procedure. ACHRA encourages the Australian Government to develop a formal view on the OPCP as a matter of priority. 14

60The second statutory report of the National Children’s Commissioner investigates how the human rights of children and young people engaging in intentional self-harm with and without suicidal intent can be better protected. The report’s primary finding is that too much continues to be unknown and this is impeding the prediction and prevention of injury and death resulting from intentional self-harm, with or without suicidal intent, in children and young people. The National Children’s Commissioner makes four recommendations that provide direction for moving forward. 14

61ACHRA welcomes the progress under the National Framework for Protecting Australia’s Children 2009–2020 and its third Three-Year Action Plan. ACHRA also welcomes the two year extension of time granted to the Royal Commission to investigate Institutional Responses to Child Sexual Abuse. 14

62ACHRA welcomes the appointment in 2013 of Victoria’s first Commissioner for Aboriginal Children and Youth. The Commissioner will oversee a five-year plan for Aboriginal children in out-of-home care, and provide advice to government and service providers about policies and practices that promote the safety and well-being of Aboriginal children. ACHRA also welcomes the commencement of an inquiry in 2014 by the Victorian Commission for Children and Young People into the adequacy of the provision of services to children and young people who have been subjected to sexual exploitation or sexual abuse whilst residing in state-funded residential care. 14

63Initiatives that strengthen the rights of older persons in Australia have continued. ACHRA welcomes the continued implementation of the 2013 reforms to the Australian aged care system. The ten year reform program aims to create a more flexible and consumer focussed system aimed at providing greater control and choice of aged care services. 14

64Australian workforce participation rates amongst older people when compared with other OECD countries remain low. ACHRA welcomes the Commission’s 2014 campaign, The Power of Oldness. The campaign exposes the stark difference between the skills and strengths of mature workers with the discrimination they face when trying to gain or maintain jobs. 14

65ACHRA notes the Australian Government’s decisions to discontinue advisory panels on issues affecting older people including the Advisory Panel on Positive Ageing (APPA) and the Insurance Reform Advisory Group (IRAG). APPA’s role was to lead a national dialogue on ageing issues. While the Panel continued its work with backing from the private sector, ACHRA is concerned that the Australian Government remains without comparable independent expert advice on issues affecting older Australians. 14

66ACHRA also notes that IRAG had been working on limitations for older people in access to insurance, including limitations that apply to income protection insurance for older people. ACHRA welcomes the continued engagement between the Age Discrimination Commissioner, insurers and other stakeholders to facilitate better information and access to insurance products. This work is aligned with the Australian Law Reform Commission’s recommendation for the Commission to undertake work on the insurance exception in the Age Discrimination Act 2004 (Cth). 15

67ACHRA urges the Australian Government to support the drafting of a Convention on the Rights of Older Persons. The Australian Government has not yet expressed a position. 15

68Several countries made recommendations related to the rights of people with disabilities. As the 2013 UPR Progress Report noted, the National Disability Strategy 2010–2020 was formally endorsed by the Council of Australian Governments in 2011, and the first implementation plan Laying the Groundwork 2011-2014 was included in the 2010–2020 Report to the Council of Australian Governments. ACHRA is concerned with the continued lack of implementation of the National Disability Strategy as a foundation to ensuring that the principles underpinning the Convention on the Rights of Persons with Disabilities are incorporated into policies and programs affecting people with disabilities, their families and their carers. 15

69ACHRA welcomes the continued support and roll out of the National Disability Insurance Scheme (NDIS) by the Australian Government. The scheme is operating within budget, with $130.9 million of support being provided to people with disability in the first year of operation. $4.5 million was invested through the Sector Development Fund to assist individuals and service providers to transition from state-based models of support to the NDIS. The National Disability Insurance Agency has reported a 94 per cent rate of satisfaction amongst participants across the four trial sites that commenced roll out in July 2013. Personal increases in independence and participation have been highlighted by qualitative data. 15

70ACHRA remains concerned that employment rates of people with disabilities are comparable with 1993 levels when the Disability Discrimination Act 1992 (Cth) came into effect. Overall employment rates for people with disability remain low, with labour force participation at around 53 per cent, compared to 83 per cent for people without disability. The rate of unemployment for people with disabilities also increased in 2012 from 7.8 per cent in 2009 to 9.4 per cent in 2012. There has been a consistent decline in employment levels of people with disability in the Australian Public Service over the last 20 years from 5.8 per cent in 1992, to 3.7 per cent in 2001, to 3.1 per cent in 2014. 15

71ACHRA remains concerned at the ongoing barriers facing people with disabilities in accessing public transport. The final report from the 2012 Review of the Disability Standards for Accessible Public Transport has not yet been published. However, key recommendations in the draft concern the development of industry-specific guidelines, national compliance reporting and standards modernisation. ACHRA continues to monitor progress through its involvement in the Accessible Public Transport National Advisory Committee. 15

72ACHRA notes with concern reports that the practice of involuntary sterilisation of children and adults with disabilities is continuing. ACHRA also notes the persistence of violence against women with disabilities. ACHRA encourages the Australian Government to take note of and implement the recommendations in the Concluding Observations on Australia by the United Nations Committee Against Torture on this issue. 16

73Access to justice for people with disabilities continues to present significant challenges. The Commission’s 2014 report, Equal Before the Law, expressed concerns about access to justice in the criminal justice system for people with disabilities. The report found that necessary supports and adjustments for people with disabilities were frequently not provided in the criminal justice system. The report emphasised the need for Australian jurisdictions to develop a Disability Justice Strategy to address barriers and gaps in access to justice for people with disabilities. ACHRA notes that South Australia has developed a Disability Justice Plan. In the ACT, the Disability and Community Services Commissioner and the Human Rights and Discrimination Commissioner have proposed that the ACT Government adopt a Disability Justice Plan. In Tasmania, discussions have begun on the development of a Disability Justice Plan. 16

74The Victorian Equal Opportunity and Human Rights Commission has also recently completed research which examines whether police services are delivered on an equal footing for people with disabilities who are victims of crime, compared to those without disability. The research found that people with disabilities face significant and multifaceted barriers when it comes to reporting crime to police, and raises the need for better coordination and governance across and within services’ systems. 16

75ACHRA is also concerned about cases of indefinite detention of people with a cognitive impairment. In some Australian jurisdictions, when people with cognitive impairment are found to be unfit to plead to criminal charges, they become subject to mental health legislation. The Commission has previously expressed serious concern about the cases of Marlon Noble and Christopher Leo. Both of these men have been held in indefinite detention. Marlon Noble, prior to his release was in prison for 10 years without being tried or convicted of any crime. 16

76ACHRA welcomes the Australian Law Reform Commission’s inquiry report into Equality, Capacity and Disability in Commonwealth Laws and notes that the report recommends significant changes to individual decision-making at the Commonwealth and state and territory level. These changes include that individual decision-making should be guided by a set of National Decision-Making Principles and Guidelines to ensure that supported decision-making is encouraged, representative decision-makers are appointed only as a last resort, and the will, preferences and rights of persons direct decisions that affect their lives. ACHRA encourages the Australian Government to accept the recommendations of the inquiry. ACHRA also encourages the Australian Government to work with state and territory governments to implement the recommended reforms at the state and territory level. 16

77Several countries raised questions concerning the rights of people who are lesbian, gay, bisexual, trans, gender diverse and intersex (LGBTI). ACHRA welcomes the consultation conducted by the national Human Rights Commissioner to explore the key rights issues affecting LGBTI people in Australia. These consultations will be conducted through an online survey and email submission process. The online consultation period will be supported by a number of targeted meetings and community forums with LGBTI groups, organisations and individuals across the country. The outcomes of this process will inform the work of the Commissioner in the area of Sexual Orientation, Gender Identity and Intersex (SOGII) Rights over his tenure as Human Rights Commissioner. 17

78ACHRA also welcomed the launch of Sogi’s Story at the Commission. Sogi’s Story is an educational resource pack which has been developed with and for African national human rights institutions, civil society organisations and local community groups to encourage learning and awareness of SOGII rights. 17

79In 2013, the Australian Government passed the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) which has introduced new grounds of discrimination into the Sex Discrimination Act 1984 (Cth), in effect from 1 August 2013. ACHRA welcomed these amendments which prohibit discrimination on the basis of sexual orientation, gender identity and intersex status in specific areas of public life, as set out in the Sex Discrimination Act 1984 (Cth). 17

80However, in view of the High Court of Australia’s unanimous decision that the ACT’s Marriage Equality (Same Sex) Act 2013 could not operate concurrently with the federal Marriage Act 1961 (Cth) and was therefore invalid, ACHRA remains concerned that the Australian Government continues to discriminate against same-sex couples and against people with diverse sex and genders by denying them the right to marry. ACHRA notes the Freedom to Marry Bill 2014 introduced into the Australian Senate on 26 November 2014. The Bill seeks to amend the Marriage Act 1961 (Cth) to enable all Australians regardless of sex, sexual orientation, and gender identity to marry. The second reading debate on the Bill has been adjourned. 17

81ACHRA welcomes the recent enactment of legislation in Victoria which provides a scheme for expunging old criminal convictions of Victorians who were prosecuted for engaging in consenting homosexual sex prior to 1981. The legislation also amends Victoria’s equal opportunity legislation to prohibit discrimination on the basis of an expunged homosexual conviction. ACHRA also welcomes the recent enactment of legislation in New South Wales, amending the Criminal Records Act 1991 (NSW) to allow convictions for certain homosexual sexual conduct offences to become extinguished. 17

82ACHRA is concerned about the issue of surgical or hormonal interventions on intersex infants. The Tasmanian Anti-Discrimination Commissioner advised that whilst there are some instances where surgery or other medical intervention is necessary for the physical well-being of the child, a large number of interventions continue to be made to make children more typically male or female on the pretext that it will protect the child from future discrimination. 17

82.1Migrants, refugees and asylum seekers 18

83ACHRA remains deeply concerned about Australia’s treatment of refugees and asylum seekers. The Australian Government accepted recommendations in the UPR process to limit the detention of asylum seekers to cases where it is strictly necessary, and for the shortest time reasonably necessary. ACHRA is concerned that the Australian Government continues to implement a policy of mandatory indefinite detention, under which broad categories of people are detained without individualised assessment or judicial review of the need for their detention. Large numbers of people are held in immigration detention within Australia and in offshore processing centres in Nauru and Manus Island, Papua New Guinea. As at 31 October 2014, 3084 people were held in immigration detention in Australia, with a further 2151 held in offshore processing centres. 18

84The majority of those detained are held in closed detention centres where they have no freedom of movement. The absence of a limit on the length of time a person can be detained under the Migration Act 1958 (Cth) coupled with significant delays in the processing of claims has resulted in larger numbers of people being subject to prolonged detention. ACHRA is extremely concerned that over the last year the average period of detention has increased to 426 days as at 31 October 2014, compared to an average period of detention of 139 days at 31 October 2013. 18

85Prolonged detention has detrimental impacts on mental health. ACHRA notes that despite the Australian Government’s efforts to improve mental health support services, there have been numerous reports of self-harm incidents and attempted suicide amongst detained asylum seekers including children. ACHRA urges the Australian Government to continue to increase the use of community arrangements as an alternative to detention in closed facilities. 18

86ACHRA is disappointed by the lack of policy progress in relation to refugees who have received adverse security assessments and their children. Refugees subject to adverse security orders must remain in closed immigration detention facilities, unless a third country agrees to their resettlement. As this commonly does not occur, they face indefinite detention. 18

87At present, there are approximately 40 refugees with adverse security assessments in immigration detention. Many have been in detention for over five years. ACHRA urges the Australian Government to consider alternatives to closed immigration detention for these people. Alternatives may include community detention or a bridging visa, if necessary with strict conditions to mitigate any identified risks an individual may pose. For example, conditions might include a requirement to reside at a specified location, curfews, travel restrictions, regular reporting and possibly even electronic monitoring. ACHRA welcomes the government’s announcement that the Independent Reviewer for Adverse Security Assessments will continue in her role for a further two years. Continuation of this appointment is critical to ensuring security assessment transparency. 18

88ACHRA holds serious concerns for those who arrive to Australia by boat and are transferred to Nauru and Papua New Guinea for processing as a result. A number of Australia’s international human rights obligations are potentially undermined by third country processing arrangements. ACHRA considers that existing arrangements do not contain adequate safeguards to protect asylum seekers from the risk of refoulement or arbitrary detention. ACHRA is particularly alarmed by the Australian Government’s failure to exclude LGBTI asylum seekers from eligibility for transfer to Papua New Guinea, where homosexual activity is a criminal offence. ACHRA is concerned that asylum seekers transferred to Nauru and Papua New Guinea are subject to mandatory and indefinite detention in conditions that are reported to be harsh and well below international standards. 19

89ACHRA welcomed the Australian Government’s decision to release children under the age of 10 who arrived prior to 19 July 2013 (and their families) from closed detention. However, ACHRA is disappointed that the Government continues to pursue a policy of the mandatory detention of children who do not fall within this group, in contravention of Australia’s commitment under the CRC to detain children only as a measure of last resort. ACHRA holds grave concerns for the 167 children held in conditions inappropriate for children at Nauru as at 31 October 2014. During 2014, the Commission conducted a National Inquiry into Children in Immigration Detention to examine the impact of closed immigration detention on the health, well-being and development of children. The Inquiry report has been transmitted to the Australian Government and it is expected it will be tabled in the near future. 19

90As noted above at paragraph 10, the Australian Government has introduced several bills to amend the Migration Act 1958 (Cth). ACHRA is gravely concerned that changes proposed by the legislation are inconsistent with Australia’s obligations under several international human rights instruments, in particular Australia’s obligation of non-refoulement. 19

91The Australian Government accepted a number of recommendations to strengthen measures aimed at combatting racial discrimination against people from culturally and linguistically diverse backgrounds. ACHRA welcomed the government’s decision not to proceed with proposed amendments to the Racial Discrimination Act 1975 (Cth) that would weaken existing legal protections against racial vilification and intimidation. ACHRA applauds the Australian Government for their continued support of the National Anti-Racism Partnership Strategy. The national anti-racism campaign central to the strategy, Racism. It Stops with Me, now has more than 320 organisational supporters. 19

92In 2012, an independent inquiry was conducted into the responsiveness of Australian Government services to the needs of Australians from culturally and linguistically diverse backgrounds. In March 2013, the Australian Government expressed support for all of the inquiry’s recommendations aimed at improving the response of government services to the needs of people from culturally and linguistically diverse backgrounds. ACHRA encourages the Australian Government to take action on the recommendations. 19

92.1Right to life, liberty and security of the person 20

93ACHRA has ongoing concerns about the criminal justice system in Australia. 20

94ACHRA notes a modest national decline in the average number and rate of children in detention over the past year, continuing a four year trend. ACHRA applauds the ACT, Victorian and Tasmanian governments for strengthening diversionary responses for youth. However, ACHRA notes that the decrease in overall rates of young people aged 10-17 in detention over the past four years is mainly due to a decrease in the sentenced detention rate. The rate of unsentenced detention has remained relatively stable over the past year, as it has over the past four years. As at June 2014, 52 per cent of young people in detention were in unsentenced detention, awaiting a court appearance or sentencing. ACHRA is seriously concerned that children are still being held in correctional centres with adults and that some legislatures are extending this practice. 20

95The need to improve systems of oversight over police use of force, misconduct and police related deaths was raised during Australia’s UPR appearance. ACHRA welcomes the creation of the Independent Broad-based Anti-corruption Commission (IBAC) in Victoria. Since it became operational in 2013 the IBAC has dealt with matters in relation to allegations of misconduct against Victoria Police, including 79 independent reviews of Victoria Police investigations. The Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) provides a statutory right to protection from cruel, inhuman or degrading treatment by public authorities, including Victoria Police. However, ACHRA notes that in 2013 the Supreme Court of Victoria held that the Charter does not imply a right to an effective and independent investigation of allegations of cruel, inhuman and degrading treatment under the Charter. ACHRA urges the ratification of the OPCAT as a means of implementing a right to an effective and independent investigation. 20

96ACHRA holds concerns about overcrowding in prisons. The Victorian Ombudsman has reported that Victorian prisons are overcrowded and that there is an increased likelihood of deaths and harm in custody. ACHRA is concerned by the Victorian Government’s abolition of the use of suspended sentences for all offences as of 1 September 2014. It is also noted that the Tasmanian Government intends to implement a similar policy. Research by the Victorian Auditor-General has shown that the abolition of suspended sentences has contributed to a growth in prisoner numbers in Victoria. ACHRA is further concerned about a lack of improvement in practices to review and investigate deaths in custody. While all deaths in custody are currently investigated by state coroners, it does not appear that any significant improvements to the system have been made. The Victorian Ombudsman has recently identified shortcomings in the system of review for the prison system in Victoria, finding that the body tasked with review of custodial services in Victoria, the Office of Correctional Services Review, lacks independence and transparency. 20

97ACHRA is disappointed to note that several Australian jurisdictions have retained or recently introduced legislation that requires mandatory minimum sentences to apply to certain offences. ACHRA notes that mandatory minimum sentencing laws disproportionately affect children and Aboriginal and Torres Strait Islander peoples. 21

98ACHRA welcomed the creation of the position of Independent National Security Legislation Monitor (INSLM) in 2012. The annual reports to parliament of the INSLM have highlighted concerns about control orders, preventative detention orders, questioning and detention orders, and the need for enhancements to terrorism laws to address involvement of Australians in armed conflict abroad. ACHRA is concerned that many key recommendations in the reports have not been implemented. ACHRA is pleased that the government has recently announced a new appointment to the position of INSLM, which had been vacant since 21 April 2014. 21

99ACHRA holds concerns about national security laws introduced to parliament in 2014, three of which have been enacted. ACHRA is concerned that elements of these laws will infringe upon human rights in a manner that is disproportionate to the legitimate aim of protecting the public against terrorism. The Commission has further detailed these concerns in its submissions to parliamentary inquiries examining the bills. 21

100Key national priorities, initiatives and commitments 21

101The Commission is an ‘A status’ national human rights institution established and operating in full compliance with the Paris Principles. The sufficiency of funding and staffing for the Commission was called into question during Australia’s UPR. ACHRA encourages the Australian Government, through the regular federal budget process, to ensure the Commission continues to operate as an effective ‘A status’ national human rights institution. ACHRA reiterates its note that the Commission’s functions could be enhanced, through legislative amendment, to provide a clearer focus on individual liberties, fundamental freedoms and human rights reflected in the common law. 21

102As Australia approaches its second cycle review, ACHRA commends the Australian Government for conducting a consultation process with civil society through the NGO Forum. ACHRA encourages the government to continue consultation and engagement with civil society during the drafting of the Australian Government report to the Human Rights Council UPR. 21

Appendix 1:
Calendar of upcoming key UN treaty dates 22

Appendix 2:
Implementation status of UPR recommendations 23

References 38