Australia's Universal Periodic Review 2014 Progress Report

33.1Equality before the law and non-discrimination

34Numerous countries called upon Australia to intensify efforts to address the unacceptable level of disadvantage experienced by Aboriginal and Torres Strait Islander peoples.²⁰ Australia was requested to ensure the full and effective implementation of the UN Declaration on the Rights of Indigenous Peoples (the Declaration).²¹

35During 2014 a series of consultations about giving effect to the Declaration were held with Aboriginal and Torres Strait Islander communities and organisations.²² 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.²³

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.²⁴ Although the Australian Government continues to declare its support for the Declaration, progress to implement it has been slow.

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.²⁵ 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.

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).

39Several countries called upon Australia to commit to the recognition of Aboriginal and Torres Strait Islander people in the Australian Constitution.²⁶ ACHRA acknowledges that a number of steps have been taken towards achieving recognition of Aboriginal and Torres Strait Islander people in Australia’s Constitution:

An independent Expert Panel recommended a model for recognition to the Government in 2012

In February 2013 the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth) was passed – this acknowledges that Aboriginal and Torres Strait Islander people are the first inhabitants of this nation and identifies a broad timeframe for the holding of the referendum to recognise this, and provide other protection, in the Constitution

Funding has been provided to Reconciliation Australia for the Recognise campaign to build community support.

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.

41ACHRA supports the work of the Close the Gap Campaign for Indigenous Health Equality.²⁷ On 12 February 2014, Prime Minister Abbott presented his first Closing the Gap Prime Minister’s Report to the House of Representatives.²⁸ 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.²⁹ 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.

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.

43ACHRA notes that Aboriginal and Torres Strait Islander women are 45 times more likely to be victims of domestic and family violence³⁰ and 35 times more likely to be hospitalised as a result of violence-related assault than non-Indigenous women in Australia.³¹ 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.

44Several countries raised the issue of disproportionate representation of Aboriginal and Torres Strait Islander peoples within the criminal justice system.³² 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.

Aboriginal and Torres Strait Islander peoples are currently imprisoned at a rate of 2208 per 100 000, which is over 11 times higher than the rate of imprisonment for non-Indigenous people³³

Aboriginal and Torres Strait Islander young people are currently imprisoned at a rate of 364.8 per 100 000, which is around 24 times higher than their non-Indigenous counterparts³⁴

Although Aboriginal and Torres Strait Islander Australians make up only 2.3 per cent of the adult population, they represent over a quarter (27.4 per cent) of the adult prison population as at 30 June 2013³⁵

The adult imprisonment rate for Aboriginal and Torres Strait Islander people has increased by 57.4 per cent since 2000³⁶

At 30 June 2013, the rate of imprisonment for Aboriginal and Torres Strait Islander males (3765.1 per 100 000 adult males) was more than 10 times the rate for Aboriginal and Torres Strait Islander females (365.9 per 100 000 adult females).³⁷ However, the female imprisonment rate is growing faster (a 73.7 per cent increase since 2000 compared with a 38.6 per cent increase for males)³⁸

The rate of imprisonment for Aboriginal and Torres Strait Islander women has grown by 58.6 per cent between 2000 and 2010.

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.

46The Senate Legal and Constitutional Affairs Committee has recommended that the Australian Government should support justice reinvestment trials.³⁹ 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.⁴⁰

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.

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.⁴¹ Accordingly, preventative and diversionary responses must be tailored to the particular needs and circumstances of these women.

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 2012.⁴² A residential diversion facility remains the highest priority for the Koori Caucus of the Aboriginal Justice Forum, Victoria.⁴³

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.⁴⁴

51Gender equality was raised by a number of countries. ACHRA commends the Australian Government for continued support of the National Women’s Alliances.⁴⁵ 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.⁴⁶ 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.

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,⁴⁷ and initiatives under these plans such as a Crisis Support Scheme in the ACT.⁴⁸ 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.

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.

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.

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.

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.⁴⁹

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.⁵⁰

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.

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.

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.

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.⁵¹

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.⁵²

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.

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.

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.

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).

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.

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.

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.

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.⁵³ 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 2012.⁵⁴ 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 2014.⁵⁵

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.⁵⁶ ACHRA continues to monitor progress through its involvement in the Accessible Public Transport National Advisory Committee.

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.⁵⁷

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.⁵⁸ ACHRA notes that South Australia has developed a Disability Justice Plan.⁵⁹ 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.

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.⁶⁰

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.⁶¹ The Commission has previously expressed serious concern about the cases of Marlon Noble and Christopher Leo.⁶² 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.⁶³

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.⁶⁴ 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.

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.

78ACHRA also welcomed the launch of Sogi’s Story at the Commission.⁶⁵ 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.

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).⁶⁶

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.

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 1981.⁶⁷ 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.

82ACHRA is concerned about the issue of surgical or hormonal interventions on intersex infants.⁶⁸ 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.