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National Human Rights Institutions

Commission – General

National Human Rights Institutions

Statement Delivered by The Hon. John von Doussa, Australian Human Rights and Equal Opportunity Commission

Agenda Item 18(b) at the 60th Session of the UN Commission on Human Rights, 14 April 2004

Opening Remarks

The Australian Human Rights and Equal Opportunity Commission (hereafter the Australian Human Rights Commission) is one of the oldest National Human Rights Institutions in the Asia Pacific region. It was originally established in 1981 as the Human Rights Commission and then restructured in 1986 to become the Human Rights and Equal Opportunity Commission. It is a founding member and a strong supporter of the Asia Pacific Forum of National Human Rights Institutions.

As such we have been able to share our experience in developing skills and jurisprudence with new National Human Rights Institutions in the region. Our Commission through the Asia Pacific Forum of Human Rights Institutions (APF) has played a key role in the establishment and strengthening of the APF by providing both technical and financial support. The APF has now matured into its own legal entity and the Commission continues to assist in conducting training programs which form part of the Forum's Professional Development Program. For example, Commission staff recently conducted human rights investigation skills program for staff of the Human Rights Commission of Sri Lanka.[1]

Some of the recent activities which are especially important to our role of developing and promoting human rights within Australia have also been of interest to other National Human Rights Institutions in the Asia Pacific Region and elsewhere.

The Commission has completed an extensive national inquiry into the welfare of children in immigration detention. It looked at the adequacy and appropriateness of Australia's treatment of child asylum seekers and the additional measures and safeguards required to protect the human rights and best interests of these children. The inquiry will report to the Australian Parliament shortly in 2004.

Acknowledging the systemic disadvantage suffered by women over the course of their lives because of their reproductive role, the Sex Discrimination Commissioner has published a paper entitled, A Time to Value: Proposal for a national scheme of paid maternity leave. The paper proposes a national scheme of paid maternity leave that is entirely government funded and available to women in paid work at the time of the birth of a child. The paper is under consideration by the government in the budgetary context, and available on our website.[2]

The Aboriginal and Torres Strait Islander Social Justice Commissioner, who is a member of the Commission, has the unique role of keeping Indigenous issues before the federal government and the Australian community to promote understanding and respect for the rights of Indigenous Australians. A central function of the Commissioner is to report annually to the Australian Parliament on significant social justice and native title issues facing Indigenous Australians. The major issues covered by the current Commissioner include: the progress of Reconciliation between Indigenous and non-Indigenous Australians, greater Indigenous participation in decision-making, domestic violence, and native title and the right to development.

The Commission has demonstrated a strong commitment to its education function by developing on-line resources for use in Australian schools. The resources cover a range of human rights and discrimination issues and are all linked to curricula of each State and Territory. In this way teachers can teach human rights principles and practices as part of their daily teaching program. Over 3,700 educators subscribe to its human rights education electronic mailing lists and the education section of the website receives and average of 10,000 page views per month .

Australian Human Rights Commission's domestic intervention power

The Commission is empowered to intervene in Court proceedings. That power allows the Commission, with the leave of the Court concerned, to make written and oral submissions on various human rights and discrimination issues.

In very broad terms, the Commission sees its role in interventions as twofold:

  • First, because the Australian legal system is heavily dependent upon precedent, interventions present an opportunity for the Commission to seek to develop Australian law in a way that is consistent with international human rights standards.
  • Second, and perhaps more importantly, the Commission's interventions play a significant part in human rights education. By intervening in Court proceedings, the Commission makes members of the legal profession, the judiciary and the broader public more aware of the way in which human rights standards might provide guidance on the resolution of domestic legal issues. In other words, interventions stand to have an impact beyond the disposition of the individual case.[3]

Mr Chairman, the Australian Government has recently introduced into the Australian Parliament a bill which would constrain and qualify the Commission's use of its intervention powers.[4] The Commission has publicly opposed the bill, on the basis that it would significantly undermine its independence in a manner which would be inconsistent with the Paris Principles.[5] I do not propose to make any more detailed comments on that issue at this time. The bill remains before Parliament.

However, I think it is pertinent to note in this forum that similar powers are held by many of the National Human Rights Institutions participating in the ICC meeting later this week. Indeed, in some States, National Human Rights Institutions are given powers to commence proceedings for the enforcement of certain human rights obligations.

In my view, those commonalities reflect a prevailing view that the inclusion of an independent human rights perspective in domestic courts is an important tool for promoting and ensuring compliance with the important international obligations shared by our respective States. The utility of such powers was recently recognised in a Roundtable meeting on National Human Rights Institutions and the Administration of Justice.[6] The possession of those powers has also been identified as a benchmark of 'best practice' for National Human Rights Institutions.[7]

Developments in Australia to combat human trafficking

The Australian Human Rights Commission welcomes the prominence that was given to the issue of human trafficking in the high level segment that opened the sixtieth session of this Commission. It is indeed one of the critical human rights concerns of our time.

The prevalence of human trafficking in South Asia and the predominance of women and children among its victims, is of particular concern to the Australian Human Rights Commission.

In this context, the Australian Human Rights Commission has welcomed a number of initiatives recently undertaken by the Australian Government to combat human trafficking both in Australia and our region, including the Government's decisions to:

  • proceed with the ratification of the United Nations Protocol to Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organised Crime;
  • establish an Inter-departmental Committee to consider and report on the federal Government's handling of trafficking issues (June 2003); and
  • provide AUD $20 million package over four years to address trafficking in women for sexual exploitation, with more emphasis on detection, investigation and prosecution of traffickers, as well as better support mechanisms and services for the victims (October 2003).

As the UN Guidelines on Human Rights and Human Trafficking[8] recommend, enforcing an adequate legal framework at the national level, and providing proper protection and support to the victims of trafficking, are two of the critical components for a successful national strategy to combat trafficking.

In keeping with the UN Guidelines on Human Trafficking and Australia's criminal code, the Australian Human Rights Commission has urged the Australian Government not to follow a strategy of detention and deportation of the victims of trafficking. Not only can this approach undermine the ability of victims to testify against their traffickers, it also has the potential to compound the suffering and further endanger the victims if they are forced to return to their country of origin against their will.

We are hopeful that the victim support program and changes to immigration processes included in the Australian Government's new response package will assist in ensuring the safety and security of victims of trafficking. These changes should also underscore the need to respect their human rights and acknowledge their status as victims - not perpetrators of crime.

We need to be mindful that a critical factor that distinguishes trafficking from migrant smuggling is the level of force, coercion and/or deception. Accordingly, it is essential to place the protection of the human rights of the victims at the centre of any measures to prevent and end trafficking.

To promote awareness and debate on these issues, the Australian Human Rights Commission, together with the Project Respect[9] and the Royal Melbourne Institute of Technology, organised a national conference at the end of last year called Stop the Traffic II.

The Australian Human Rights Commission is now working with Project Respect to develop a joint training package for State and federal government agencies dealing with trafficking, including training for police and immigration officers.

We are also currently leading a study tour to Thailand and Vietnam as part of the China Australia Human Rights Technical Co-operation Program, which is focussing on the issue of trafficking in South East Asia.

Enhancing the role of NHRIs through ECOSOC accreditation

As the Director of the Secretariat of the Asia Pacific Forum Secretariat has already noted, national human rights institutions see a strong need for the United Nations, and the Economic and Social Council (ECOSOC) in particular, to formally recognise their unique status and involve them meaningfully in the human rights work of the UN.

The UN Commission on Human Rights has played an important role in this regard, informally inviting national institutions to address this forum for several years.

The Australian Human Rights Commission wishes to express its appreciation to the Chairperson and the Bureau for maintaining this tradition, and for adopting the recommendation of the High Commissioner for Human Rights to accord national institutions appropriate time and attention at this session of the CHR.

Similarly, the Australian Human Rights Commission wishes to express its appreciation to the Sub-Commission for the Promotion and Protection of Human Rights for its recent decision to accredit national institutions to the Sub-Commission in their own right and to allow them to speak on any substantive agenda item.[10]

In this context, it is also important to take note of the remarks of the Secretary-General in his report to the Fifty-seventh Session of the General Assembly entitled Strengthening of the United Nations: an agenda for further change.[11] He gave an undertaking that "[t]he capacity of the United Nations to help individual countries to build strong human rights institutions will be strengthened .... The emplacement or enhancement of a national protection system in each country, reflecting international human rights norms, should be a principal objective of the [United Nations]" in recognition of the fact that "[b]uilding strong human rights institutions at the country level is what in the long run will ensure that human rights are protected and advanced in a sustainable manner." [12]

Furthermore, the Secretary-General's Second Reform Program heralds the development of stronger links between international standards, the international human rights machinery,[13] and national human rights institutions. It is an agenda which will build on the critical role that national institutions already play in translating international human rights norms into laws, policies and practices that ensure respect for human rights at the local level.

These developments reflect the growing recognition at the highest levels within the United Nations of the need to formally engage with national human rights institutions, and better facilitate their active involvement in international human rights fora.

National institutions are also playing a valuable role in the development of human rights standards. Last year, the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities invited national human rights institutions to take up a position on its working group to develop a draft text - the first time such an invitation has been made to national institutions.

This invitation is an acknowledgement of the value of a having an independent voice in the development of standards and recognition of the professional and technical experience that national institutions can bring to the negotiating table.

Mr Chairman, an amendment to the Rules of Procedure of ECOSOC is indeed an ambitious goal.

However, there are examples of non-State actors being granted the right to participate in international affairs. The 1996 reforms to ECOSOC procedure eased the entry of non-governmental organisations into that forum. Similarly, in 2002, the Inter-Parliamentary Union was granted observer status with the United Nations General Assembly.[14]

By virtue of their adherence to the Paris Principles, national institutions are a truly independent voice. We are independent of both government and non-government organisations, and require a formal status at the United Nations to reflect that reality.

Mr Chairman, in recognition of the unique status of national human rights institutions and our role in the promotion and protection of human rights at the national, regional and international levels, the Australian Human Rights Commission respectfully requests that the UN Commission on Human Rights recommend that ECOSOC provide national institutions with the formal right of participation as a separate category of participant in the functioning Commissions of ECOSOC and other relevant United Nations fora.

Enhancing the role of NHRIs in the treaty body system

Mr Chairman, the Australian Human Rights Commission would like to make a further recommendation - that is, to strengthen the role of national institutions in the human rights mechanisms of the United Nations through the treaty body reform process.

There are a variety of ways in which this could occur. For instance, clear, formal structures could be established within the working arrangements of the treaty bodies so that national institutions that comply with the Paris Principles, and non-governmental organisations with ECOSOC accreditation, could be invited to make independent and identified contributions to State party reports.

Alternatively - or in addition - national institutions and non-governmental organisations could be invited to present supporting, alternate or additional information regarding State party reports to a treaty body.

In both instances, the treaty body would be better placed to assess and respond to the information presented in State party reports.

In the case of the Australian Human Rights Commission, one of our main statutory functions is to hear complaints and assess compliance with the same human rights treaties that are monitored by the treaty body system. Other national institutions have similar functions. The expertise gained through the practice of applying international law to practical situations, should be of assistance to the treaty bodies in their consideration of alleged breaches within a State's domestic jurisdiction.

Mr Chairman, as you are aware, the Australian Government recently invited the Australian Human Rights Commission to contribute to the development of one of its State reports, and, on a number of occasions, has sought our input on draft country reports.

This may be an example that could be brought to the attention of other States parties to demonstrate the feasibility of this recommendation and to encourage the development of procedures to formalise this practice across the treaty body system.

With that suggestion, Mr Chairman, I would like to conclude, and once again extend my thanks to you and the Member States present, for being able to address you in this forum today.

1. Referred to in the Secretary-General's report entitled Effective Functioning of Human Rights Mechanisms: National Institutions and Regional Arrangements E/CN.4/2004/101 at para 21, page 9.

2. https://humanrights.gov.au/our-work/sex-discrimination

3. The potential role of 'national institutions' litigation efforts' was acknowledged in the conclusions

of the roundtable discussion entitled The Paris Principles: a reflection held at the Palais Wilson on 10 and 11 December 2003 (annex II to the Secretary-General's report entitled Effective Functioning of Human Rights Mechanisms: National Institutions and Regional Arrangements E/CN.4/2004/101).

4. The Australian Human Rights Commission Legislation Bill 2003 (Cth).

5. See http://www.aph.gov.au/senate/committee/legcon_ctte/index.htm for the Commission's submission to the Senate Legal and Constitutional Committee Inquiry into the Bill and the Senate Committee's Report on the proposed legislation.

6. See Conclusions of Roundtable meeting on National Human Rights Institutions and the Administration of Justice held 13-14 November 2003 in Copenhagen (annex I to the Secretary-General's report entitled Effective Functioning of Human Rights Mechanisms: National Institutions and Regional Arrangements E/CN.4/2004/101).

7. See Commonwealth Secretariat 'National Human Rights Institutions - Best Practice' (2001) at p29.

8. Office of the High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, United Nations, New York and Geneva, 2002.

9. An Australian non-governmental organisation working to prevent sexual violence and raise awareness about human trafficking. For more information visit: http://www.projectrespect.org.au/

10. As recorded in the Secretary-General's report entitled Effective Functioning of Human Rights Mechanisms: National Institutions and Regional Arrangements E/CN.4/2004/101 para. 9, page 6.

11. A/57/387.

12. Ibid, page 2 (summary) and para. 50, page 12.

13. ie the treaty body system and the special procedures of the Commission on Human Rights.

14. See A/Res/57/47.

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