Debate heats up as Australian civil society and the government begin to finalise the wording of how we’ll report on human rights progress to the UN in 2015.
Report of the AGD NGO forum, December 2014
The Attorney-General’s Department, and the Department of Foreign Affairs and Trade, held a
Forum on Human Rights for Non-Government Organisations
In Sydney on 10 December 2014, which was attended by Civil Liberties Australia
Report by Rhys Michie*, CLA member. Chatham House Rules applied.
The forum began with greetings, introductions and welcome to country. The first session focussed on the upcoming reports that the Attorney-General’s Department (AGD) and the Department of Foreign Affairs and Trade (DFAT) will be submitting to United Nations (UN) Human Rights treaty reporting bodies. Before the forum, confidential drafts of the reports were emailed to participants (the emailed document/s). The first report discussed was Australia’s 2nd Universal Periodic Review (UPR). The second report discussed was the Report on the Convention for the Elimination of All forms of Discrimination (CERD). Thirdly, the report on the International Convention on Economic, Social and Cultural Rights (ICESCR) was discussed. Fourthly, reports to the Optional Protocol on the Convention Against Torture (OP-CAT) and Convention Against Torture (CAT) were discussed. The final report addressed the Convention on the Rights of Persons with a Disability (CRPD).
After lunch, Tim Wilson (the Australian Human Rights Commission’s Freedom Commissioner) spoke about the consultations he has been conducting around the country, and engaged in dialogue. Finally, a representative of the Australian Law Reform Commission (ALRC) discussed the Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and Immunities (the Freedoms Inquiry), which is due to report in late-2015..
Treaty Body Reports
2nd Universal Periodic Review
Discussion commenced by explaining the process that shall be followed. The Australian Government will be appearing at the UN in November 2015. Submissions by NGOs to the Office of High Commissioner for Human Rights (OHCHR) are due by 23 March 2015. The Australian Government will be providing its written report by 20 July 2015. It was conveyed that at the 1st UPR, submissions should use the word ‘recommend’, in order for recommendations to be formally recognised.
The atmosphere was confrontational. A number of representatives from Non-Government Organisations (NGOs) made direct attacks on the content of the emailed document. The government representatives indicated that they were receptive to feedback, but provided trite responses. The exchanges escalated through the session. Conflict was primarily focussed on the content of the emailed document and the process of consultation. However, personality conflict between the NGOs and the AGD people was evident.
Part I of the emailed document was missing. Part I explained how NGOs are to engage in the process. The emailed document was descriptive and lacked data or analysis. Substantively, a great quantum of omissions was identified. These include:
- Refugees and asylum seekers;
- Indigenous Australians;
- Social security;
- Housing;
- Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI);
- Police use of force;
- Discrimination legislation;
- Freedom of speech, association and religion.
Each of these issues is summarised below.
The emailed document omitted to mention that, according to the recently released statement of the Convention Against Torture (CAT) Committee, offshore processing is within the Australian Government’s jurisdiction. The emailed document will need to be amended to recognise the change in the situation that arises from the passing of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. It was noted that this Bill no longer refers to the Refugee Convention. However, it was stated that the process still assesses people to the Convention. It is expected that the Human Rights Committee (HRC) will address the passing of this Bill in the near future.
The emailed document stated that the Declaration on the Rights of Indigenous Peoples (the Declaration) is non-binding and aspirational. The precise meaning of this statement was questioned. In contrast, the recognition of self-determination and exercise rights contained in the Declaration were omitted. The meaning of this omission was questioned. A supplementary question relating to the motive of the AG was made. A call to adopt a policy of self-determination was made. It was stated that the position of the Australian Government is that it supports the declaration. Other substantive criticisms of the emailed document included the lack of reference to incarceration rates, and the Budget reforms that affect Indigenous Australians and the need to improve outcomes. A statement was read out and tabled that supported the rights of Indigenous Australians, and that the preceding and existing policies of the Australian Government marginalise Indigenous Australians. In regards to process, the lack of engagement was recognised.
Substantive criticisms of the emailed document’s omission to changes to social security, (especially the six-month waiting period each year for young people and changes that affect sole-parents) were made. It was put on the record that the AHRC has criticised the six-month waiting period. The level of child poverty was omitted from children’s section. An offer to provide recent data on the level of child poverty was made and warmly received.
The omissions regarding housing were characterised as stark. The emailed document was substantively criticised for not making reference to housing partnerships. Stylistically, it was put on the record that the emailed document lacks data and analysis, and was characterised as descriptive.
A number of issues in regards to LGBTI people were raised. The most passionate discussion centred on sterilisation. There was no dissent expressed regarding the need to change the policy of sterilisation, nor the need to amend the emailed document to make the present situation clear. There was a call to consolidate sterilisation into a single sub-heading in the emailed document. Further substantive discussion focussed on the omission to reference marriage equality and reforms that have occurred in regards to LGBTI rights at the State and Territory level (especially expunging legislation, issues centring on birth certificates for people who undergo a sex change, the requirement that people who undergo a sex change get a divorce, and novel approaches that create human rights issues).
Omissions in the emailed document regarding Police use of force were made. The fact that Police in a number of jurisdictions had killed people was recorded. The use of stun guns by Police was also omitted in the emailed document, and was noted.
It was noted that the emailed document does cite discrimination legislation. However, a view was expressed that the representation made does not accurately reflect reality. The amendments to the Sex Discrimination Act were characterised as good. It was noted that age discrimination was included; it was suggested that Victoria’s new Equality Minister is a reform worthy of inclusion.
Finally, it was noted that the emailed document substantively omitted to discuss the debate and changes to legislation regarding freedom of speech, association and religion that have occurred in Australia since the 1st UPR.
It was generally agreed that the emailed document would need to be revised for progress to be made. The consensus of the NGOs during this session was that the Australian Government produced documents which are not accurate representations and which contain substantive omissions.
A desire to constructively engage was expressed from all sides. There was a heartfelt desire expressed by NGO members to meet with the AG, Senator George Brandis. The AG’s vision for human rights was questioned. The view was expressed that the lack any Minster attending the Forum was not acceptable. Furthermore, the lack of executive level representation was perceived by NGOs to be an indication that the Australian Government has a low priority for human rights.
It was suggested that Australia should adopt a best practice approach to the UPR. This was well received by all parties. There was discussion on the lack of strategic direction expressed in the emailed document. In response, it was stated that the emailed document is a starting point, and that further consultation is planned. How the process will formally proceed was described as ‘not set in concrete’. This was recognised by the plenary. Indications were that in considering future procedural matters, the emailed document will be revised after this meeting, and again after the NGO report. It is expected that the final report will probably go to the Minister for clearance a month or two before the submission date.
CERD
The atmosphere during the second session was more collaborative, with all parties expressing a constructive tone.. Fewer objections to substantive misrepresentations and omissions were expressed regarding the emailed document. It was immediately put on the record that the reports are late. The CERD report will combine two periods. The 18th, 19th and 20th International Convention on Economic, Social and Cultural Rights (ICESCR) and CERD Reports will be submitted together. Stylistically, it was stated that there is a desire to cross-reference between reports, and that the reports will not proceed through article by article, but shall respond to the concluding recommendations made in the last report submitted. The CERD report makes 19 recommendations. Procedurally, consultations between the Federal and State and Territory Governments are under way, and most State and Territory Submissions have been received. NGOs are invited to make submissions by mid-February.
The CERD report will address:
- biometric data,
- regulation of corporations,
- impact on Indigenous people,
- access to services,
- Indigenous recognition and reconciliation,
- cultural training and Indigenous interpreter services,
- socio-economic disparity,
- international students and racially motivated violence,
- gender wage gap and executive representation,
- workers’ rights,
- freedom of association,
- disability,
- standard of living, and
- human trafficking.
Discussion in this session focussed to a large extent on the absence of data, analysis and discussion of changes in policy. In terms of access to services, socio-economic disparity and standard of living, discussion included the effects of the Budget on the right to an adequate standard of living, inadequacy of social security payments, poverty (especially its affect on children) and homelessness. The absence of distributional analysis and poverty impact statements was highlighted. Offers to provide data and analysis were made and accepted.
In terms of policing, the need to proactively engage with specific communities, especially children and the African community in Melbourne was discussed. The use of drugs in places of detention, the lack of appropriate healthcare, the treatment of people with mental illness in places of detention were identified as issues that should be included in this report.
Other issues that were raised included the economic and social rights for transgender and intersex people, LGBT refugees and newly arrived migrants. It was stated that higher priority should be placed on people living in Australia who come from a refugee background than on asylum seekers in regards to employment, housing and mental health. The former group is larger. Offers to provide data on these issues were made and accepted.
Arising from these discussions, the view was expressed that these reports will enhance change in systems and people. All recommendations will be responded to. However, these issues are subject to progressive realisation and budget constraints.
ICESCR
Discussion on the ICESR report followed immediately on from the CERD report. The willingness to place the inadequacies of the emailed documents on the record at the start of the session, combined with the acceptance of offers to provide data and analysis, contributed to an attitude of co-operation between parties.
This report will address 29 recommendations previously made. The themes that will stylistically structure this report are:
- powers of the HRC,
- the extent of protection under the Convention,
- the NT Intervention,
- immigrants and asylum seekers,
- prisoners,
- preservation of Indigenous languages, and
- reforms to human rights legislation.
The emailed document was criticised for omitting to mention freedom from female genital mutilation, whether there is an ongoing commitment to ameliorating homelessness and housing, access to healthcare, especially dental and mental health for low-income earners, deferred funding for dental care, cuts to funding for Indigenous languages, violence against women, children and the disabled, the rise in technologically-assisted violence and Culturally And Linguistically Diverse (CALD) groups. The work-for-the-dole program was argued to be possibly racially discriminatory as the remote work-for-the-dole social security program is not carried out in a manner equal to the rest of the population.
In concluding the discussion, it was stated that intersectional issues between reports will be cross-referenced. The Optional Protocol for the International Convention on Economic, Social and Cultural Rights (OP-ICESCR) was stated as not being an issue that is currently in the pipeline. The institutional response to OP-ICESCR was characterised as lacking. A role for the Joint Parliamentary Committee for Human Rights was suggested.
In concluding discussion on this report, it was suggested that if issues are not in Part III of the emailed document, they should be included in submissions. It would be desirable for submissions to be kept to five pages. Ongoing discussions are planned to occur through the NGO Forum, and there will be a round table during the 1st quarter of 2015.
OP-CAT
Discussion on OP-Cat was brief. The hope that this issue will be addressed more specifically in future forums was placed on the record. No outcomes, or timetables could be presently announced. Whether there will be a monitor and the existence of a draft bill were questioned. It was stated that these issues are presently under consideration, as is the process for implementing Australia’s commitment to the protocol.
CAT
The Australian Government appeared before the committee on 10 November 2014. The appearance resulted in a good dialogue, but there was difference of opinion on some matters. During the appearance, there was acknowledgment of the new torture offence, Independent National Security Legislation Monitor (INSLM), and database of UN recommendations. The concluding observations were published in November.
The issues that were discussed during this session included: OP-CAT, violence against women and non-refoulement. The need for further updates re progress being made on the issue of violence against women was raised, as was a request for clarification whether violence against women constitutes torture. There were conflicting views. There was concern expressed that the Australian Government is making progress but is not being transparent. Another issue that raised conflict was whether the Australian Government had effective ‘control’ of offshore processing. To clarify, it was reported that the Australian Government accepts that it has extra-territorial responsibility, but not ‘control’. It was reported that the committee does not accept that view. The reported view of the committee was that funding was a test of ‘control’, and that the committee takes the view that ‘providing a service’ at one point puts Australia in a degree of control. A different view expressed was that the Australian Government has a great degree of control of people’s lives, not just a provision of service.
A similar issue that is of emerging concern was whether discrimination of same-sex-attracted asylum seekers in Papua New Guinea (PNG) would enliven Australia’s obligations to provide protection from PNG. Views were expressed that non-refoulement of asylum seekers was in breach of Australia’s obligations. In concluding discussion, the meetings of the Standing Committee On Treaties (SCOT) will be followed up. It was reported that presently there is no intention to consult with civil society, and a formal request to do so was placed.
CPRD
Australia appeared before the committee on 24 September 2014. The appearance was characterised as constrained. The format of the report of the Australian Government will follow a thematic approach, focussing on: women with a disability, liberty and security of persons with a disability, OP-CAT, and sterilisation. Procedurally, follow up with States and Territories will be necessary. It was made clear that these matters were omitted from the emailed document.
An issue of passionate concern was the indefinite detention of persons with a cognitive impairment. Extraordinary concern was expressed in regards to a statement tabled by the AG over whether the Commonwealth Government is responsible for State and Territory actions, a contested areea. It was argued that indefinite detention of persons with a cognitive disability is within jurisdiction. It was made clear that Australia is not walking away from international obligations. Concern was expressed that real action was not being taken. This issue is expected to be addressed through SCOT.
A further issue of concern that was expressed was the perceived disconnect between psycho-social disability, mental illness and other more commonly recognised disabilities. This session concluded with a strong closing statement. The process that was followed during this session was productive, and there was a sense of good engagement between government and civil society.
Tim Wilson
The 13 consultations that have occurred around the country have identified four themes:
- freedom of speech and freedom of association,
- freedom of religion and freedom of property,
- the Racial Discrimination Act, and
- national security.
The consultations indicate that the most important issue is freedom of speech. Freedom of religion discussion was tense and vexed. The atmosphere in the room quickly became hostile and confrontations between parties occurred. At one level, the conflict was task oriented, focussing on the question of what does freedom of religion mean in a pluralist society? Concurrently, personality conflict was evident. In discussing freedom of religion, the receipt of public monies, same-sex marriage, slavery and forced marriages were issues that electrified participants. An appeal to be mindful was made, but not substantially adopted by all present.
A central issue discussed was religious freedom, and whether faith groups ought to be able to differentiate between status of women and men. The principle of equality before the law was enunciated, and agreed upon. A view was expressed that what occurs in the private sphere has a private standard, where it is congruent with the law. One must look at the justification for what operates in the government/legal sphere and private sphere. The question was asked as to whether the civil law would allow oppression. Discussion regarding the separation between civil and private spheres was frank. The view that there is a separation between the civil and private spheres led to a heated discussion on forced marriage. A difference between consent in the civil law and consent to take decisions regarding one’s private conduct was articulated. Concern was expressed that by force of expectations, women are forced into what they believe are marriages. Discussion revolving around people being forced to do things followed. The outcome of this discussion was that through dialogue, people can learn what is right and wrong, and where the limits of acceptable behaviour lie. It was made clear that a zero-sum game is not desirable. A desire to engage on terms that are respectful and mindful was made.
Another issue that was flagged was hiring staff needed to fulfil religious purposes. The issue of the chaplaincy program was raised. The fact that society is not secular, but that the State is, was made. A view was expressed that the chaplaincy program is a waste of money. Concerns were expressed about the freedom to have chaplaincy and counsellors. The need to disaggregate these issues was well received. In concluding this conversation, it was announced that a religious freedom round table will be held in 2015.
The level of personality conflict diminished when the issue of freedom of property was discussed. The consultations reportedly had consistently raised issues relating to freedom of property. Issues include: one’s own body, intellectual property, physical property, and denial of Indigenous and native title. A consensus on reform, in order to fulfil aspirations of self-determination, was sensed in the room. Issues arising from poverty were discussed. These included the law, the nature and role of trivial offences and disproportionate consequences for poor people, their over-engagement with the legal system and the consequent impact on lifestyle, and restrictive mental health practices. Housing was identified as a perennial theme. It occurs at the intersection of property rights and housing, and raises the interdependence of civil and political rights, with economic, social and cultural rights. It was announced that a sexual orientation, gender and intersex paper had just been released. Marriage for same-sex couples and equality before the law was identified as an issue of priority in the near future.
Another question asked was what the Australian Human Rights Commission’s view on a Charter of Rights is. The AHRC’s view was not known, but no appetite within the current Australian Government for a charter is apparent. No further time will be allocated to the issue. Priorities are identified through a series of targeted meetings, an online platform, and forums and by accepting submissions. Urgent and achievable issues will be responded to first. A dialogue is welcomed, as are more partnerships and common ground. More focus should be placed on informal mechanisms, a culture of respect, tolerance and mindfulness.
ALRC
The final session focussed on the ALRC’s Freedom Inquiry. Many participants had retired, and attention was waning. The speaker provided an overview of the role of the ALRC, describing the process, recently completed and current inquiries. Over the past 40 years, 83% of recommendations arising from ALRC Inquiries have been implemented or partially implemented. The most recently completed inquiries were Privacy in the Digital Era and Disability. The current Inquiries are a Review of Native Title Act and the Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and Immunities.
Procedurally, implementation of the recommendations arising from the Freedoms Inquiry is out of the ALRC’s hands. Commencing with the Terms of Reference (ToR) that were revised and published in May 2014, the commission has spent the remainder of this year investigating the questions contained in the ToR, researching the background of the 19 stipulated rights, and conducting an audit of commonwealth legislation. The Issues Paper (IP) was published on10 December 2014.
Consultations will take place in 2015. There will be a first round of written submissions and oral hearings to explore the issues, followed by the publication of a discussion paper. A second round of consultations to explore proposals will occur, and the commission will invite written submissions and conduct oral hearings. The commission considers all evidence, and integrates the diverse view it receives to achieve balanced and desirable outcomes. The commission will then publish its report. The final report contains specific recommendations and how they were arrived at.
The aim is to provide the AG with evidence-based recommendations in the final report. The ToR stipulate the timeframe, and the commission is aware that they are asking a lot of people who submit. The function of the commission in the Freedoms Inquiry is to identify and critically examine Commonwealth laws that unjustifiably encroach on the 19 stipulated rights identified. The ToR focus attention on laws that affect environmental/ corporate/ workplace relations. The preliminary view of the commission is that not every stipulated “right” is in fact a right. Other non-stipulated rights are not in the ToR. However, there is a catch-all mechanism, and the C\commission has invited the public to identify any missing Commonwealth laws that unjustifiably encroach on a right, freedom or immunity.
A short discussion of the sources of legal protection of rights followed. The commission identifies three sources: the Constitution, the Principle of Legality, and International Law. The commission has identified some good reasons to encroach on rights. Much of the debate is expected to be on the conflicts between rights. Some questions to consider are:
- How should rights be balanced?
- What general principles or criteria should be applied to determine whether encroachment on rights is justifiable?
- Are there any Commonwealth laws that unjustifiably interfere?
- Why unjustified?
- What methodology can be utilised to determine what a justifiable encroachment is?
In concluding the presentation, the process for the first round of consultations was clarified. An invitation for submissions has opened, and they are due by 27 February 2015. The commission requests submitters to use the online submission form. The discussion paper is expected to be released by July.
Questions then followed.
A sense that the AG was wearing thick ideology glasses was detected, from the questions that were asked. Whether the commission will accept submissions based on other definitions of ‘traditional’ rights was asked. The commission is constrained by the Tor, and the discussion centred on whether the 19 stipulated rights are in fact rights, immunities or privileges, and where they come from. It was recognised confusion exists in the community as to whether the 19 stipulated rights are rights protected in law or something else. The conclusion drawn from this discussion is that the commission will not include other rights or views. One possible way to subvert the AG’s constraints on the ToR discussed,was to make submissions on the catch-all mechanism in the final chapter.
It was put on the record that there is a need to acknowledge other definitions.
The final question asked was existential. What is the point of the Freedoms Inquiry? The answer to that question can only be provided by the AG. There was the suggestion that the purpose is to “re-frame the debate” to the AG’s agenda. A trite explanation, that the implication is that there are unjustifiably encroached rights, was provided. The session concluded.
Discussion
A short discussion of outstanding issues occurred. The earlier request for a NGO consultation with an actual meeting with the AG was reiterated, and a common understanding amongst the plenary was achieved. Other issues that were raised include:
Australia’s election for Human Rights Council
When will the AG table the Children in Detention Report? (On sitting days, expected to be during the 1st or 2nd week in February)
What stage is the ICCPR process and timeframe at? (No specific updates were available, however the draft is at the advanced stage)
What is happening in regards to Migrant Domestic Workers? (Ratification of ILO 190 is not under consideration)
What is the outcome of Report into the Adverse ASIO Assessments of 46 refugees? (it is late, but there is a hope to lodge soon)
Can an update on the Scrutiny Committee be provided? (More than happy to share communications).
The forum concluded by giving thanks for a frank and provoking discussion, and a commitment to follow up on a meeting with the AG, and possibly a future Forum with a smaller group. A general sense of exhaustion combined with a collegiate atmosphere was present.
Submissions due, requests made:
to CERD by mid February
to the ALRC on Freedom Inquiry due 27 February
to OHCHR on UPR due 23 March
to ICESCR – when? roundtable in first quarter of 2015
request consult with SCOT on CAT
religious freedom roundtable in 2015
meeting of NGOs with AG requested
request for NGOs to be involved in CAT consultations by the Standing Committee On Treaties
ENDS
Rhys Michie is a Law graduate of Charles Darwin University, who is undertaking a Masters degree in Human Rights Law at the University of Sydney in 2015.