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2 Background and framework for human rights promotion and protection

2.1 Implementation of UPR recommendations

  1. The Commission has lodged annual progress reports with the UN Human Rights Council on the implementation of recommendations from Australia’s first UPR.[2] These reports identify the status of all actions committed to, as reflected in Australia’s National Action Plan on Human Rights.
  2. A recurring theme over the past four years is the lack of implementation of UPR commitments. Of the 145 recommendations made to Australia in 2011, 10% of those accepted (in whole or in part) have been fully implemented over the past four years.[3] However, a further 62% have been partially implemented.

2.2 Scope of international obligations

  1. Six years have passed since Australia signed OPCAT, with limited progress towards ratification and establishment of a National Preventive Mechanism. Since 2011, ratification has been endorsed through parliamentary processes.[4] Model legislation to enable visits of the Sub-Committee on Prevention of Torture has been prepared but not passed.[5] Recommendation: The Commission recommends that Government expedite the ratification of OPCAT and establishment of a National Preventive Mechanism for places of detention.
  2. Since 2011, limited consideration has been given to ratification of a range of human rights treaties and individual communication processes, and to the withdrawal of reservations. Recommendation: The Commission recommends that the Parliamentary Joint Standing Committee on Treaties conduct a National Interest Analysis on ratification of ILO Convention 169, Migrant Workers Convention and Optional Protocols for communications under ICESCR and CRC. The Commission recommends that Government confirm a timetable for the withdrawal of reservations to ICERD, CEDAW and CRC.

2.3 National framework

  1. The Commission commends the establishment of the Joint Committee on Human Rights in the federal Parliament and the requirement for all legislation to be accompanied by a Statement of Compatibility which assesses consistency with Australia’s human rights obligations.[6] The Committee has raised concerns about legislation unjustifiably infringing human rights, particularly civil and political rights such as privacy and procedural fairness.[7]
  2. Since 2011, the Commission has welcomed the establishment of an Age Discrimination Commissioner and National Children’s Commissioner,[8] as well as the appointment of a Race Discrimination Commissioner and Human Rights Commissioner (focused on protection of fundamental freedoms as well as the rights of lesbian, gay, bisexual, trans, gender diverse and intersex people).[9]
  3. Despite these developments, Australia continues to have limited legislative protection of human rights and fundamental freedoms at the federal level, with many of Australia’s human rights obligations not directly incorporated into Australian law. Recommendation: The Commission recommends that Australia’s human rights obligations be directly incorporated into Australian law.

(a) Human rights education

  1. The Commission welcomes the inclusion of human rights in the national school curriculum and the development of human rights resources for public servants.[10]
  2. There remains a need for ongoing human rights education across the public sector, in the administration of justice and places of detention, within the tertiary and vocational education sector and across the community. Australia’s activities for the World Program for Human Rights Education have been ad hoc. Recommendation: The Commission recommends that Government expand its support for human rights education initiatives, including targeted initiatives for public officials.

(b) Business and human rights

  1. The Commission commends the Australian business community’s support for the Guiding Principles on Business and Human Rights through the Global Compact Network Australia.[11] Recommendation: The Commission recommends that Government formulate a National Action Plan on Business and Human Rights, in consultation with the business sector.
  2. The Commission commends Australian businesses on their commitment to promote diversity and equality. Examples include Reconciliation Action Plans (to promote Indigenous equality), Disability Action Plans, and other measures to promote gender equality and diversity on the basis of race, and Sexual Orientation, Gender Identity and Intersex.
  3. The Commission is concerned that significant complexity continues to exist between discrimination laws across jurisdictions in Australia. There remains a need to support business, particularly small business, to understand these laws and prevent discrimination. Recommendation: The Commission recommends that Government consider options to reduce complexity and improve consistency of discrimination protections across Australia, to clarify businesses’ obligations and support best practice.

[2] The Commission’s annual progress reports are available at Australian Human Rights Commission, Australia’s Universal Periodic Review on human rights. At https://www.humanrights.gov.au/australias-universal-periodic-review-human-rights (viewed 21 March 2015).

[3] A table listing the implementation status of the 145 recommendations made to Australia in the first UPR is included at Annex 2. The table indicates which recommendations have been implemented, partly implemented, not implemented and not supported at the time of the UPR.

[4] The Joint Standing Committee on Treaties recommended ratification of the OPCAT in June 2012. See Joint Standing Committee on Treaties, Parliament of Australia, Report 125: Treaties tabled on 7 and 28 February 2012 (June 2012), recommendation 6. At http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=jsct/28february2012/tor.htm (viewed 21 March 2015): ‘The Committee supports the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 18 2002 and recommends that binding treaty action be taken.’

[5] The Northern Territory government introduced the Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) (National Uniform Legislation) Bill 2013 to Parliament on 22 August 2013. The Bill has not been enacted to date.

[6] The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) establishes the Parliamentary Joint Committee on Human Rights. The Act defines human rights as the rights and freedoms recognised or declared by the International Convention on the Elimination of all Forms of Racial Discrimination; International Covenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights; Convention on the Elimination of All Forms of Discrimination Against Women; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities. See further Parliament of Australia, Parliamentary Joint Committee on Human Rights, http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights (viewed 21 March 2015).

[7] Regular concerns have been raised about reversing the onus of proof and ensuring merits review of decisions. Parliamentary Joint Committee on Human Rights, Annual Report 2012–2013 (2013), pp 15-25. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Annual_Reports (viewed 21 March 2015).

[8] The position of Age Discrimination Commissioner is established by the Sex and Age Discrimination Legislation Amendment Act 2011 (Cth). See Australian Human Rights Commission, ‘Passage of sex and age discrimination legislation amendment a great day’, (Media Release, 25 May 2011). At https://www.humanrights.gov.au/news/media-releases/2011-media-release-passage-sex-and-age-discrimination-legislation-amendment (viewed 21 March 2015). The position of National Children’s Commissioner is established by the Australian Human Rights Commission Amendment (National Children’s Commissioner) Act 2012 (Cth). See Australian Human Rights Commission, ‘Commission welcomes inaugural Children’s Commissioner’, (Media Release, 25 February 2013). At https://www.humanrights.gov.au/news/media-releases/commission-welcomes-inaugural-children-s-commissioner (viewed 21 March 2015). The National Children’s Commissioner has a legislative requirement to report annually to Parliament on the status of enjoyment of human rights by children.

[9] Australian Human Rights Commission, ‘Race Discrimination Commissioner appointed’, (Media Release, 3 August 2011). At https://www.humanrights.gov.au/news/stories/2011-news-race-discrimination-commissioner-appointed (viewed 21 March 2015); Australian Human Rights Commission, ‘Commission welcomes new Commissioner’, (Media Release, 18 December 2013). At https://www.humanrights.gov.au/news/media-releases/commission-welcomes-new-commissioner (viewed 21 March 2015).

[10] Attorney-General’s Department, Human rights and the public sector. At http://www.ag.gov.au/RightsAndProtections/HumanRights/PublicSector/Pages/default.aspx (viewed 21 March 2015).

[11] The network is comprised of business stakeholders ranging from multi-nationals and top 200 companies down to smaller enterprises.