Annual Report 06-07: Chatper 3 - Monitoring Human Rights

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Chapter
3: Monitoring Human Rights

HREOC plays a significant role in monitoring legislation and policy in
Australia to assess compliance with human rights principles. This monitoring
role includes:

• the work of the individual Commissioners, who examine and report on issues
  of race, age, sex and disability discrimination and human rights; and
• the assessment by HREOC of legislative and policy proposals, resulting in
  submissions to governments, law reform bodies and parliamentary
  committees.

This chapter highlights HREOC’s contribution to policy development and
legislative review through the many submissions made during the reporting
period. Many of these submissions identified breaches or potential breaches of
human rights in proposed legislation.

HREOC’s submissions play an important role in fostering public debate
and an awareness of human rights principles. HREOC makes the submissions
available on its website for reference by governments, politicians, lawyers,
academics, journalists, students and other individuals who have an interest in
human rights issues.

HREOC’s submissions are prepared on behalf of HREOC by HREOC’s
Legal Section, Policy Units and the Complaint Handling Section.

A range of submissions made by HREOC during 2006-07 are summarised below. The
summaries do not detail government actions or other responses to the
submissions.

For further information about HREOC’s submissions, refer to:
www.humanrights.gov.au/
/legal/submissions/sj_submissions/alra_amendments_senate_subjuly2006.html. For
further information about the process of relevant federal legislation, refer to
the Parliament of Australia website: www.aph.gov.au.

3.1 Submissions made by HREOC as part of its monitoring role in relation to Human Rights Standards

3.1.1 Provisions of
Aboriginal Land Rights (Northern Territory) Amendment Bill 2006

In July 2006 HREOC made a submission to the Legislation Committee of the
Senate Committee on Community Affairs Inquiry into the Provision of Aboriginal
Land Rights (Northern Territory) Amendment Bill 2006 (Cth). The submission outlined the following concerns:

• a lack of traditional owner participation in the development of the
  amendments;
• failure to inform traditional owners of the content of the proposed
  amendments;
• alienation of Indigenous lands for three generations or more under the
  proposed 99 years leases over townships;
• the use of the Aboriginal Benefits Account to pay the Northern Territory
  Government’s rental on the 99 year leases;
• the potential loss of advocacy capacity under the proposed constitution of
  additional land councils; and
• poor processes for informing and seeking consent of traditional owners
  regarding agreements on land under section 19A of the proposed
  amendments.

A copy of HREOC’s submission is available at: http://www.humanrights.gov.au/social_justice/submissions/alra_amendments_senate_subjuly2006.html

The Legislation Committee of the Senate Committee on Community Affairs tabled
its report in the Senate on 8 August 2006. A copy of the report is available
at: http://www.aph.gov.au/Senate/committee/clac_ctte/aborig_land_rights/report/index.htm

3.1.2 Unfinished Business
– Indigenous Stolen Wages

In August 2006 HREOC made a submission to the Senate Legal and
Constitutional Affairs Committee’s Inquiry into Indigenous Stolen
Wages.


The submission brought to the attention of the Inquiry:

• the issue of underpayment of wages;
• relevant human rights principles relevant to the issue of stolen wages; and
• relevant developments in Queensland, including those cases under the Racial
  Discrimination Act (the Palm Island Wages Case, Baird and
  Douglas) in which HREOC was involved.

A copy of HREOC’s submission is available at: www.humanrights.gov.au/legal/submissions/2006/stolen_wages_2006.html

HREOC’s
Director of Legal Services and Director of the Social Justice Unit appeared
before the Committee on 27 October 2006 to give oral evidence in support of
HREOC’s submission.

The Senate Standing Committee on Legal and Constitutional Affairs tabled its
report in the Senate on 7 December 2006. A copy of the report is available
at: http://www.aph.gov.au/Senate/committee/legcon_ctte/stolen_wages/report/index.htm

3.1.3 Crimes Amendment
(Bail and Sentencing) Bill 2006

In September 2006 HREOC made a submission to the Senate Legal and
Constitutional Affairs Committee’s Inquiry into the Crimes Amendment (Bail
and Sentencing) Bill 2006 (Cth).

The Bill was a response by the Commonwealth Government to concerns about
violence in Indigenous communities. It sought, amongst other things, to exclude
‘cultural background’ as a specific relevant factor in sentencing
and prevent a court from taking into account ‘customary law or cultural
practice’ in sentencing.

HREOC’s submissions opposed these changes as being an inappropriate
response to the issue of Indigenous violence and potentially counter-productive.
HREOC argued that the Bill undermined customary authority that may otherwise be
important in improving Indigenous community governance and addressing problems
of violence.

A copy of HREOC’s
submission is available at: www.humanrights.gov.au/legal/submissions/crimes_amendment.html

Aboriginal and Torres Strait Islander Social Justice Commissioner and
Director of Legal Services gave oral evidence before the Committee on 29
September 2006 in support of HREOC’s submission.

The Senate Standing Committee on Legal and Constitutional Affairs tabled its
report in the Senate on 16 October 2006. A copy of the report is available
at: http://www.aph.gov.au/Senate/committee/legcon_ctte/crimes_bail_sentencing/report/index.htm

3.1.4 Australian
Citizenship: much more than just a ceremony Discussion Paper

In November 2006 HREOC made a submission to the Department of Immigration and
Citizenship (DIAC) in response to its Discussion Paper on the introduction of
formal citizenship testing titled Australian Citizenship: much more than just
a ceremony.

HREOC’s submission recommended that testing for citizenship should not
be introduced. The submission argued that there was no adequate justification
for the introduction of formal testing and there was a prospect that such a test
may have a discriminatory impact on the ground of national or social origin
and/or birth.

However, the submission did recommend that if testing were to be introduced,
the government should carefully consider the format, content and implementation
of the test and provide a number of safeguards and exemptions to avoid any
discriminatory impact.

A copy of HREOC’s submission is available at: www.humanrights.gov.au/racial_discrimination/report/citizenship_paper_2006.html

DIAC prepared a Summary Report on the outcomes of its public consultation. A
copy of this report is available at: http://www.minister.immi.gov.au/media/responses/citizenship-test/summary_report_citizen_test_paper.pdf

3.1.5 Anti-Money
Laundering and Counter-Terrorism Financing Bill
2006

In November 2006 HREOC made a submission to the Senate Legal and
Constitutional Affairs Committee’s Inquiry into the Anti-Money
Laundering and Counter-Terrorism Financing Bill 2006 (Cth) and the Anti-Money
Laundering and Counter-Terrorism Financing (Transitional Provisions and
Consequential Amendments) Bill 2006 (Cth).

HREOC’s submission expressed concern that the Bills did not do enough
to ensure that financial institutions adopt non-discriminatory criteria when
determining the ‘money laundering/ terrorism financing risk’ of
providing a designated service to a customer. This is primarily because the
Bills:

• failed to provide any objective criteria for financial institutions to use
  in determining ‘risk’ and gave them a broad discretion; and
• exempted financial institutions from liability under discrimination laws for
  conduct done in good faith and in compliance or purported compliance with the
  regime.

A copy of HREOC’s submission is available at: www.humanrights.gov.au/legal/submissions/anti_money_laundering_counter_terrorism.html

The Senate Standing Committee on Legal and Constitutional
Affairs tabled its report in the Senate on 28 November 2006. A copy of the
report is available at: http://www.aph.gov.au/Senate/committee/legcon_ctte/aml_ctf06/report/index.htm

3.1.6 A
Charter of Rights for Tasmania Discussion Paper

In December 2006 HREOC made a submission to the Tasmania Law Reform
Institute in response to its Discussion paper titled A Charter of Rights for
Tasmania?


HREOC’s submission stated that a statutory Charter
of Rights could, depending on its form and content, significantly improve human
rights protection in Tasmania. The submission recommended that a Tasmanian
Charter of Rights should refer to a number of key elements. A summary of these
key elements is given below.

• Protect the rights set out in the International Covenant on Civil and
  Political Rights (ICCPR) and take steps to achieve the progressive
  realisation of rights set out in the International Covenant on Economic
  Social and Cultural Rights (ICESCR).
• Protect the rights of every person in Tasmania’s jurisdiction,
  regardless of immigration status.
• Create a culture of human rights compliance in law and policy making by
  providing that:
  • bills must be accompanied by a
    human rights compatibility statement; and
  • submissions to Cabinet with a
    direct or significant impact on human rights be accompanied by a human rights
    impact statement.
• Give courts the power to:
  • interpret legislation consistently
    with the Charter;
  • make a declaration of
    incompatibility if legislation is incompatible with the Charter; and
  • hear and determine actions brought
    against public authorities for acting unlawfully under the Charter.
• Establish an independent Tasmanian Human Rights Commission to monitor human
  rights protection under the Charter, advise the government on Charter
  compliance, and promote public understanding and awareness of the Charter.

A copy of HREOC’s submission is available
at:

www.humanrights.gov.au/legal/submissions/Tas_charter_rights.html


At
30 June, the Tasmania Law Reform Institute is in the process of preparing its
report on the outcomes of its public consultation.

3.1.7 Older People and the
Law

In December 2006 HREOC made a submission to the House of Representatives
Legal and Constitutional Affairs Committee’s Inquiry into Older People and
the Law.

The Committee is investigating and reporting on the adequacy of current
legislative regimes in addressing the legal needs of older Australians (65 years
and over) in the following areas: fraud; financial abuse; general and enduring
‘power of attorney’ provisions; family agreements; barriers to older
Australians accessing legal services; and discrimination. The Committee is also
considering the relevant experience of overseas jurisdictions.

HREOC’s
submission provided a range of background material, including statistics about
age discrimination complaints. It also made submissions on HREOC’s
concerns about the coverage of the Age Discrimination Act, consistent with
previous submissions concerning the Act when it was before parliament as a
Bill.

A copy of HREOC’s submission is available at: www.humanrights.gov.au/legal/submissions/2006/ADA_200612/older_people_and_the_law_dec06.html

HREOC
President, Director of Legal Services and Director of the Sex Discrimination
Unit appeared before the Committee to give oral evidence in support of
HREOC’s submission on 15 May 2007.

The House of Representatives Standing Committee on Legal and Constitutional
Affairs will table its report in parliament later this year.

3.1.8 Migration Amendment
(Review Provisions) Bill 2006

In January 2007 HREOC made a submission to the Senate Legal and
Constitutional Affairs Committee’s Inquiry into the Migration Amendment
(Review Provisions) Bill 2006.

HREOC’s submission expressed concern that the Bill created an unfair
process for determining refugee and migration cases which may breach the human
rights of applicants by:

• denying applicants a fair hearing; and/or
• leading to incorrect decisions which increases the likelihood of
  ‘refoulement’ of asylum seekers.

HREOC also submitted that, while the Bill may give the tribunals greater
flexibility, this may not necessarily improve their efficiency. In any event,
improved efficiency is not justified if it comes at the expense of
applicants’ human rights.

A copy of HREOC’s submission is available at: www.humanrights.gov.au/legal/submissions/2007/migration_amendment_bill_06.htm

The Human Rights Commissioner, Director of Human Rights Unit and a HREOC
lawyer appeared before the Committee to give oral evidence in support of
HREOC’s submission on 31 January 2007.

The Senate Standing Committee on Legal and Constitutional Affairs tabled its
report in the Senate on 26 February 2007. A copy of the report is available
at: http://www.aph.gov.au/Senate/committee/legcon_ctte/mig_review_provisions/report/index.htm

3.1.9 Inquiry into the
Terrorist Organisation Listing Provisions of the Criminal Code Act
1995

In February 2007 HREOC made a submission to the Parliamentary Joint Committee
on Intelligence and Security on its review of the power to proscribe terrorist
organisations under the Criminal Code Act 1995 (Cth).

The submission
expressed HREOC’s concern that the Attorney-General’s power to
proscribe or de-list a terrorist organisation does not satisfy the international
human rights law requirement that any interference with ICCPR rights (in this
case, the right to freedom of association and freedom of expression) must be
prescribed by law and be proportionate and necessary to achieve a legitimate
end.



The submission argued that inadequate safeguards in the current
proscription process create the potential for arbitrary and disproportionate
decision making. HREOC’s key concerns were:

• the absence of criteria for the exercise of the Attorney-General’s
  discretion to proscribe or de-list a terrorist organisation;
• the lack of opportunities for organisations or individuals to oppose the
  proposed proscription of an organisation; and
• the absence of merits review of the Attorney-General’s decision to
  proscribe an organisation as a terrorist organisation.

HREOC’s submission endorsed the Security Legislation
Review Committee’s recommendations to create a more transparent
proscription process. The fact that, as a result of proscription, a person
associated with an organisation may be charged and convicted of serious criminal
offences reinforces the need for a fairer proscription process.


HREOC
recommended that the proscription process be a judicial rather than executive
process. In the event that a judicial proscription process is not adopted, HREOC
recommended existing proscription provisions should be amended to include the
criteria to be taken into account by the Attorney-General in determining whether
to proscribe or de-list a terrorist organisation. HREOC also recommended that
the provisions should allow merits review of the Attorney-General’s
decision to proscribe an organisation.

A copy of HREOC’s submission is available at: www.humanrights.gov.au/legal/submissions/2007/proscription_powers_terrorist_org_feb2007.html

HREOC President and his Associate appeared before the Committee to give oral
evidence in support of HREOC’s submission on 4 April 2007.
The Report
of the Parliamentary Joint Committee on Intelligence and Security will be tabled
in Parliament later this year.

3.1.10 Human Services
(Enhanced Delivery) Bill 2007

In March 2007 HREOC made a submission to the Senate Finance and Public
Administration Committee’s Inquiry into the Human Services (Enhanced
Delivery) Bill 2007 (Cth). The Bill sought to introduce an
‘access card’ to replace some 13 other cards that are required to
access federal benefits.
HREOC’s submission drew the Committee’s
attention to how the access card might impact upon Indigenous Australians and
made related recommendations. In particular, HREOC observed:

• as a result of their disadvantaged socio-economic status, most Indigenous
  Australians will be required to register for the access card in order to gain or
  maintain access to social welfare payments, Medicare services, and the
  Pharmaceutical Benefits Scheme;
• a potentially significant number of Indigenous people will have difficulty
  providing the documents required to establish their ‘legal name’;
• a potentially significant number of Indigenous people will have difficulty
  meeting one or more of the requirements of the registration process for the
  access card as a result of cultural reasons or their disadvantaged
  socio-economic status. Special consideration should be given to their
  circumstances and appropriate exemptions granted or special arrangements made;
  and
• to ensure that the registration requirements for the access card do not
  unnecessarily disadvantage Indigenous Australians, it is important that they are
  consulted about the development of guidelines and other mechanisms that will
  determine eligibility.

A copy of HREOC’s submission is available at: www.humanrights.gov.au/legal/submissions/sj_submissions/human_services_bill_accesscards_Mar07.html

The Senate Committee on Finance and Public Administration tabled its report
in the Senate on 20 March 2007. A copy of the report is available at: http://www.aph.gov.au/Senate/committee/fapa_ctte/access_card/report/index.htm

3.1.11 Other
Submissions

Other submissions were made to:

• the Australian Fair Pay Commission for consideration in determining the
  first national wage decision;

• the Joint Standing Committee on Treaties Inquiry into the Extradition and
  Mutual Assistance Treaties between Australian and Malaysia;

• the Attorney-General’s Department second exposure draft of the
  Anti-Terrorism and Counter-Terrorism Financing Bill 2006;

• the Attorney-General’s Department Discussion Paper A better mutual
  assistance system: a review of Australia’s mutual assistance law and
  practice;

• the Attorney-General’s Department draft model Children with
  Intellectual Disabilities (Regulation and Sterilisation) Bill
  2006;

• the Attorney-General’s Department Discussion Paper Two: Technical
  amendments to the Native Title Act 1993;

• the Senate Standing Committee on Legal and Constitutional Affairs Inquiry
  into the Native Title (Amendment) Bill 2006;

• the Senate Committee on Employment, Workplace Relations and Education
  Inquiry into the Radioactive Waste Management Legislation Amendment Bill
  2006;

• the Attorney-General’s Department draft of Australia’s Common
  Core Document for use before international treaty monitoring
  bodies;

• the Senate Standing Committee on Finance and Public Administration Inquiry
  into the Electoral and Referendum Legislation Amendment Bill
  2006;

• the Parliamentary Joint Committee on the Australian Crime Commission Inquiry
  into the future impact of serious and organised crime on Australian
  society;

• the Department of Families, Community Services and Indigenous Affairs
  Discussion Paper Access to Aboriginal Land under the Northern Territory Land
  Rights Act;

• the Senate Standing Committee on Legal and Constitutional Affairs Inquiry
  into the Native Title Amendment (technical amendments) Bill
  2007;

• the Australian Law Reform Commission Discussion
  Paper on Legal Professional Privilege;

• the Attorney-General’s Department Discussion Paper Material that
  Advocates Terrorist Acts;

• the Joint Standing Committee on Migration Inquiry into eligibility
  requirements and monitoring, enforcement and reporting arrangements for
  temporary business visas; and

• the Queensland Industrial Relations Commission Inquiry into Pay
  Equity.

For further information about HREOC’s submissions, refer to: www.humanrights.gov.au/legal/submissions/.