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3 Promotion and protection of human rights on the ground

3.1 Equality before the law and non-discrimination

(a) Aboriginal and Torres Strait Islander peoples

  1. The UN Declaration on the Rights of Indigenous Peoples has yet to be implemented in law, policy and practice.[12] Recommendation: The Commission recommends that Government develop, in partnership with Aboriginal and Torres Strait Islander peoples, a National Strategy to give effect to the Declaration; include the Declaration in the definition of human rights in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth); and review existing legislation, policies and programmes for conformity with the Declaration.[13]
  2. Government has wound back funding support for the National Congress of Australia’s First Peoples, a national NGO voice for Indigenous peoples, and for Indigenous legal services.[14] Recommendation: The Commission recommends that adequate funding be provided to the National Congress to build a representative Indigenous voice at the national level and for Indigenous legal aid.
  3. The Commission acknowledges steps taken towards recognition of Aboriginal and Torres Strait Islander peoples in the Constitution.[15] No model for constitutional change has been finalised nor the timeframe for a referendum announced. Recommendation: The Commission recommends that Government finalise a model for constitutional recognition, following engagement of Indigenous peoples, so that the process of building community support can advance.
  4. The Commission welcomes the commitment of Australian governments to targets to close the gap between Indigenous and non-Indigenous Australians across a range of key wellbeing indicators. Since 2011, there have been long-term improvements in infant mortality, maternal health, life expectancy rates and pre-school attendance. Other areas, such as employment and school attendance, have not seen improvements. Recommendation: The Commission recommends that Government, working with Indigenous peoples, redouble efforts to achieve the closing the gap targets, and implement the recommendations of the Close the Gap Campaign’s Progress and Priorities Report 2015.[16]

(b) Equality of women and men

  1. The Commission welcomes the Workplace Gender Equality Act 2013 (Cth) and the increase in the number of women on boards.[17] The Commission notes that the gender pay gap has widened,[18] women in Australia continue to do the majority of unpaid caring and domestic work,[19] and experience discrimination in the workplace, including on the basis of pregnancy, parental leave and return to work.[20] Each of these factors has contributed to a significant gap in women’s retirement savings. Recommendation: The Commission recommends that Government implement measures to close the gender pay gap, strengthen the representation of women in leadership and managerial roles, value and recognise unpaid caring work, and address the gap in retirement savings to assure women economic security in later life.[21] The Commission further recommends that Government amend the Sex Discrimination Act 1984 (Cth) to improve its effectiveness.[22]
  2. The Commission welcomes the National Plan to Reduce Violence Against Women and their Children (2010–2022), the establishment of Ourwatch, Australia’s National Research Organisation for Women’s Safety, and an advisory panel on violence against women.[23] The Commission also welcomes legislative amendments that strengthen responses to domestic violence.[24]
  3. However, violence against women is endemic and the prevalence of domestic violence, sexual assault, sexual harassment and community attitudes about violence against women have not substantially improved. The Commission is concerned at the under-resourcing of crisis and support services and the inadequate levels of support available for women in rural and remote areas, women from culturally and linguistically diverse backgrounds, Aboriginal and Torres Strait Islander women, women with disabilities, and lesbian, trans and intersex women. Recommendation: The Commission recommends that implementation of the National Plan to Reduce Violence Against Women and their Children reflect the diversity of women, and include adequate, sustained funding for programs and services and independent monitoring and evaluation.
  4. The Commission acknowledges the commitment of the Australian Defence Force to cultural reform, including efforts towards ensuring organisational diversity and inclusivity, particularly for women.

(c) Older persons

  1. Australia has a significant ageing population. Older people face human rights challenges relating to poverty, violence, discrimination in the workforce and stereotyping.
  2. The Commission welcomed amendments to the Age Discrimination Act 2004 (Cth) in 2011, initiatives to improve the retention and recruitment of older workers and the recent announcement of a national review into barriers facing older workers and people with disability in employment.[25] Recommendation: The Commission recommends that Government ensure programs support positive ageing, reduce workplace discrimination against older Australians and address poverty in old age.

(d) People with disability

  1. The Commission welcomes the introduction of the world leading National Disability Insurance Scheme, which provides individualised support packages to people with disability. Recommendation: The Commission recommends that Government fully fund the National Disability Insurance Scheme.
  2. The Commission is concerned at the limited employment of people with disability,[26] and the falling rates of such employment in the public service.[27] Recommendation: The Commission recommends that Government support an inclusive employment culture through resourcing transition to work programs, educational support and reasonable accommodation, and a targeted increase in public service employment.
  3. The Commission remains concerned at the high rates of violence against people with disabilities.[28] The Commission is concerned that sterilisation of people with disabilities, including children, continues to take place in Australia without consent. Recommendation: The Commission recommends that Government adopt a national approach to address violence against people with disabilities and introduce legal protections to ensure no sterilisation of people with disabilities without their consent.

(e) Lesbian, gay, bisexual, trans, gender diverse and intersex people

  1. The Commission welcomes the enactment of legislation in 2013,[29] prohibiting discrimination on the basis of sexual orientation, gender identity and intersex status.[30] Exemptions to these provisions continue in state and territory laws. Recommendation: The Commission recommends that federal, state and territory laws that continue to discriminate be brought into compliance with the Sex Discrimination Act 1984 (Cth).
  2. The Commission welcomes the enactment of legislation at the state and territory level expunging historic criminal convictions for consensual homosexual sex.[31] Recommendation: The Commission recommends that all jurisdictions pass legislation expunging historic criminal convictions for consensual homosexual sex.
  3. The Marriage Act 1961 (Cth) discriminates against same-sex couples and people with diverse sex and genders by denying them the right to marry. Recommendation: The Commission recommends that the Australian Parliament legislate to provide marriage equality as a matter of priority.
  4. The Commission is concerned that intersex people face non-essential medical interventions to erase intersex characteristics.[32] Recommendation: The Commission recommends that Government conduct an inquiry into the issue of surgical intervention on intersex infants.

(f) Rights of the child

  1. The Commission welcomes progress under the National Framework for Protecting Australia’s Children 2009–2020,[33] the establishment of the Royal Commission into Institutional Responses to Child Sexual Abuse,[34] amendments to the Family Law Act 1975 (Cth) in 2012 which strengthen protection of the rights of the child, especially in violent situations,[35] and efforts by government and across the community to address cyber-bullying and online safety of children.[36]
  2. The Commission is concerned that the rate of children in out-of-home care has increased,[37] with Indigenous children over-represented.[38] Recommendation: The Commission recommends that Government strengthen early intervention programs that support vulnerable families and improve data collection relating to child protection and out-of-home care.

3.2 Migrants, refugees and asylum seekers

(a) Refugees and asylum seekers

  1. The Commission welcomes Australia’s increased use of community arrangements for asylum seekers[39] and the release of many children from closed detention since the last UPR.[40] Despite these developments, Australia’s current treatment of refugees and asylum seekers continues to present serious human rights challenges. Australia maintains a policy of mandatory immigration detention, with all people who arrive by boat liable for such detention, and transfer for processing to third countries. Recommendation: The Commission recommends that Government introduce time limits and access to judicial oversight of detention so that detention occurs only when necessary, for a minimal period, and where it is a reasonable and proportionate means of achieving a legitimate aim. The Commission further recommends the Government continue to expand the use of alternatives to closed detention.
  2. Australia has reintroduced third country processing arrangements[41] under which asylum seekers who arrive by boat, including children,[42] are transferred to the jurisdiction of third countries for processing of their asylum claims. The Commission is concerned that people are detained for lengthy periods[43] under extreme conditions[44] with detrimental impacts on their physical and mental health.[45] If owed protection, refugees subject to these arrangements are resettled in Papua New Guinea or Nauru.[46] Recommendation: The Commission recommends that Government immediately cease the transfer of people to Papua New Guinea and Nauru, return people transferred back to Australia, and continue to negotiate through the Bali Process Regional Cooperation Framework.[47]
  3. The Commission commends Australia for establishing a statutory complementary protection framework, but notes that this faces repeal.[48] Recent legislative change has empowered the government to remove asylum seekers from Australia even where this violates non-refoulement obligations.[49] The Commission is also concerned by the government’s removal of references to the Refugee Convention from the Migration Act 1958 (Cth); the reintroduction of temporary protection visas; and limitations that have been placed on merits review of claims.[50] Recommendation: The Commission recommends that Government retain its complementary protection framework, codify the obligation of non-refoulement in law, review the impact of temporary protection visas and restore full access to merits review to all asylum seekers.

(b) People from culturally and linguistically diverse backgrounds

  1. Since 2011, Australia has introduced a new multicultural policy,[51] appointed an Australian Multicultural Council, and developed a National Anti-Racism Strategy. The Migration and Multiculturalism Inquiry and Access and Equity Inquiry have identified further actions to build on our strong multicultural foundation.[52] Despite these efforts, racial discrimination and vilification continue in Australia.[53] Recommendation: The Commission recommends that Government affirm its commitment to an inclusive society by continuing to support the National Anti-Racism Strategy and programs building social cohesion and community harmony. The Commission further recommends that Government implement recommendations of the Migration and Multiculturalism and Access and Equity inquiries.

3.3 Right to life, liberty and security of the person

(a) Counter-terrorism laws

  1. Australia’s counter-terrorism laws restrict human rights. In particular, control orders, preventive detention orders and questioning and detention orders, may result in arbitrary interference with rights protected by the ICCPR. The Commission commends the creation of an Independent National Security Legislation Monitor (INSLM).[54] The recommendations of the INSLM to moderate counter-terrorism provisions have not been adopted to date.[55]
  2. Recent amendments to counter-terrorism laws have raised concerns about restrictions on free speech by limiting journalists’ ability to report on terrorist related issues, and the expansion of powers of security agencies to obtain information without warrant that are disproportionate.[56] Recommendation: The Commission recommends that Government ensure all counter-terrorism laws remain under constant review to ensure that any infringement of human rights is legitimate and proportionate.

(b) Extradition and mutual assistance

  1. The Commission welcomes the introduction of legislation in 2012 that brings the Extradition Act 1988 (Cth) further into line with Australia’s non-refoulement obligations under CAT.[57]

(c) Trafficking

  1. The Commission commends legislative amendments that strengthen Australia’s response to human trafficking, including by recognising various slavery-like practices as offences[58] and extending witness protections to victims of trafficking.[59] The Commission commends Australia for developing a National Action Plan to Combat Human Trafficking and Slavery 2015–2019.[60] Recommendation: The Commission recommends that Government fully implement the National Action Plan to Combat Human Trafficking and Slavery 2015–2019.

(d) Freedom of association and peaceful assembly

  1. The Commission is concerned about state and territory laws that disproportionally restrict freedom of association,[61] and the right to peaceful assembly.[62] Recommendation: The Commission recommends that state and territory governments amend anti-protest and anti-bikie laws so they do not unduly restrict human rights.

(e) Mental health

  1. The Commission commends the 2012 establishment of the National Mental Health Commission (NHMC).[63] Key concerns identified to date include lack of support for severely mentally ill people; over-representation of Indigenous peoples death by suicide; and use of seclusion and restraint practices for people with mental illness. The Commission is concerned at the prevalence of self-harm among children.[64] Recommendation: The Commission recommends that Government fund mental health services and implement the recommendations of the National Mental Health Council and the Children’s Rights Report 2014.[65]

(f) Criminal justice system

  1. Aboriginal and Torres Strait Islander adults and juveniles, and people with disability[66] are significantly over-represented in Australia’s prison population.[67] Child offenders are sometimes held in the same correctional centres as adults.[68] The Commission notes that some jurisdictions have progressed the use of non-custodial measures and strengthened diversionary programs.[69] The Commission notes that the government has reduced funding for Indigenous legal aid.[70] Recommendation: The Commission recommends that Government adopt targets[71] and introduce justice reinvestment trials to reduce Indigenous incarceration rates,[72] adopt measures to improve access to justice for people with disabilities, develop alternative care arrangements where people are found unfit to plead for reasons including cognitive impairment or acquired brain injury, expand the use of diversionary programs for juveniles, raise the minimum age of criminal responsibility and cease detention of children in adult facilities.
  2. Several Australian jurisdictions have expanded or introduced mandatory sentencing laws, which prevent appropriate non-custodial measures for certain offences and may lead to disproportionate and arbitrary detention.[73] Victoria has phased out the use of suspended sentences.[74] There is overcrowding in some prisons.[75] Recommendation: The Commission recommends that Australian governments review mandatory sentencing and laws that limit judicial discretion, and expand the use of non-custodial measures where appropriate.

 

[12] The Commission commends the leading role played by the Australian Government at the World Conference on Indigenous Peoples in September 2014 and its agreement to the Outcomes Document which commits Member States to develop national measures to achieve the ends of the UN Declaration on the Rights of Indigenous Peoples: Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, GA Res 69/2, UN Doc No A/69/L.1, 2014, paras 7-8. At http://wcip2014.org/wp-content/uploads/2014/09/N1453491-WCIP-FINAL-DOCUMENT-EN.pdf (viewed 21 March 2015).

[13] J Anaya, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Report to the Human Rights Council 12th session, UN Doc A/HRC/12/34/Add.10 (2009), p 4. At http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/CountryReports.aspx (viewed 21 March 2015).

[14] Australian Government, Budget 2014–15: Budget Measures, Budget Paper No 2 (2014), p 185. At http://budget.gov.au/2014-15/content/bp2/download/BP2_consolidated.pdf (viewed 21 March 2015).

[15] Australian Human Rights Commission, Australia’s Universal Periodic Review 2014 Progress Report, p 8-9: an independent Expert Panel recommended a model for recognition to the Government in 2012; 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.

[16] Close the Gap Campaign Steering Committee, Progress and Priorities Report 2015. At https://www.oxfam.org.au/2015/02/close-the-gap-progress-and-priorities-report-2015/ (viewed 21 March 2015).

[17] Women on Boards, ASX200 in 2013. At http://www.womenonboards.org.au/pubs/bdi/2013/asx.htm (viewed 21 March 2015). The Commission notes the decrease in numbers of women on government boards. See Australian Government, Gender Balance on Australian Government Boards Report 2013–2014 (2014), p 5. At http://www.dpmc.gov.au/office-women/publication/gender-balance-australian-government-boards-report-2013-14 (viewed 21 March 2015).

[18] Workplace Gender Equality Agency, ‘National gender pay gap at record high of 18.8%’ (Media Release, 26 February 2015). At https://www.wgea.gov.au/sites/default/files/20150226_MR_GenderPayGapRecord.pdf (viewed 21 March 2015); Workplace Gender Equality Agency, Australia’s gender equality scorecard (November 2014), p 3. At https://www.wgea.gov.au/sites/default/files/2013-14_summary_report_website.pdf (viewed 21 March 2015).

[19] Australian Bureau of Statistics, Caring in the Community, Australia, Catalogue no. 4436.0 (2012). At http://www.abs.gov.au/AUSSTATS/abs@.nsf/Latestproducts/4436.0Main%20Features22012?opendocument&tabname=Summary&prodno=4436.0&issue=2012&num=&view=#Chapter2 (viewed 21 March 2015); Australian Human Rights Commission, Investing in care: Recognising and valuing those who care. Volume 1: Research Report (2013). At https://www.humanrights.gov.au/our-work/sex-discrimination/publications/investing-care-recognising-and-valuing-those-who-care (viewed 21 March 2015).

[20] Australian Human Rights Commission, Supporting Working Parents: Pregnancy and Return to Work National Review – Report (2014), p 8. At https://www.humanrights.gov.au/publications/supporting-working-parents-pregnancy-and-return-work-national-review-report (viewed 21 March 2015).

[21] Australian Human Rights Commission, Investing in Care: Recognising and valuing those who care. Volume 1: Research Report (2013), pp 10-15. At https://www.humanrights.gov.au/our-work/sex-discrimination/publications/investing-care-recognising-and-valuing-those-who-care (viewed 21 March 2015).

[22] The Commission has noted the need for outstanding recommendations from the 2008 Senate Inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender to be implemented to strengthen the effectiveness of the Sex Discrimination Act; as well as the need for other amendments to the Sex Discrimination Act relating to domestic violence. See Australian Human Rights Commission, Supporting Working Parents: Pregnancy and Return to Work National Review – Report (2014), p 118. At https://www.humanrights.gov.au/publications/supporting-working-parents-pregnancy-and-return-work-national-review-report (viewed 21 March 2015); Australian Human Rights Commission, Submission to the Attorney-General’s Department on Consolidation of Commonwealth Discrimination Law (2011). At http://www.humanrights.gov.au/consolidation-commonwealth-discrimination-law#Heading689 (viewed 21 March 2015); Australian Human Rights Commission, Supplementary Submission to the Attorney-General’s Department on Consolidation of Commonwealth Discrimination Law – Domestic and Family Violence (2012). At http://www.humanrights.gov.au/consolidation-commonwealth-discrimination-law-domestic-and-family-violence (viewed 21 March 2015). A 2008 report reviewed the effectiveness of the Sex Discrimination Act. Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Effectiveness of the Sex Discrimination Act (December 2008). At http://www.aph.gov.au/binaries/senate/committee/legcon_ctte/sex_discrim/report/report.pdf (viewed 21 March 2015).

[23] Prime Minister of Australia and Minister Assisting the Prime Minister for Women, ‘COAG agenda to address ending violence against women’ (Media Release, 28 January 2015). At https://www.pm.gov.au/media/2015-01-28/coag-agenda-address-ending-violence-against-women-0 (viewed 21 March 2015).

[24] See 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, and Fair Work Amendment Act 2013 (Cth), which expands 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. The Commission further notes the announcement of the Victorian Royal Commission into violence against women: Premier of Victoria, ‘Premier Announces Royal Commission Into Family Violence’, (Media Release, 23 December 2014). At http://www.premier.vic.gov.au/premier-announces-royal-commission-into-family-violence (viewed 21 March 2015).

[25] The review is to be conducted by the Age and Disability Discrimination Commissioner at the Australian Human Rights Commission.

[26] Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings, 2012, 4430.0 (2012). At http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/E82EBA276AB693E5CA257C21000E5013?opendocument (viewed 21 March 2015).

[27] Australian Government, Australian Public Service Commission, State of the Service Report: State of the Service Series 2012–13 (2013) p 104. At http://www.apsc.gov.au/about-the-apsc/parliamentary/state-of-the-service/sosr-2012-13 (viewed 21 March 2015).

[28] The Commission welcomes the establishment of a parliamentary inquiry into violence, abuse and neglect against people with disability in institutional and residential settings, to be conducted in 2015. See Senate Community Affairs References Committee, Parliament of Australia, Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability. At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Violence_abuse_neglect (viewed 21 March 2015).

[29] Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth).

[30] Sex Discrimination Act 1984 (Cth) ss 5A, 5B and 5C.

[31] Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014 (Vic); Criminal Records Amendment (Historical Homosexual Offences) Act 2014 (NSW).

[32] Australian Human Rights Commission, Surgery on intersex infants and human rights (July 2009). At https://www.humanrights.gov.au/surgery-intersex-infants-and-human-rights-2009 (viewed 21 March 2015).

[33] Annual reports to the Council of Australian Governments measure the progress made in implementing the National Framework. Department of Social Services, Protecting Children is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–2020 – Annual Report 2012–2013 (2013). At https://www.dss.gov.au/our-responsibilities/families-and-children/publications-articles/protecting-children-is-everyones-business/protecting-children-is-everyones-business-national-framework-for-protecting-australias-children-2009-2020-annual-report-2012-13 (viewed 21 March 2015).

[34] Royal Commission into Institutional Responses to Child Sexual Abuse, Royal Commission into Institutional Responses to Child Sexual Abuse. At http://www.childabuseroyalcommission.gov.au/ (viewed 21 March 2015).

[35] The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) introduced changes to the Family Law Act 1975 (Cth) that better ensure the safety of children by expanding the definition of ‘family violence’ to include socially and financially controlling behaviour and exposing a child to family violence and making it easier for victims to report violence.

[36] Australian Human Rights Commission, Children’s Rights Report 2014 (2014), pp 16-18. At https://www.humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2014 (viewed 21 March 2015). The federal Parliament has recently passed the Enhancing Online Safety for Children Bill 2014 which will establish a Children’s e-Safety Commissioner.

[37] Productivity Commission, Report on Government Services (2015), Table 15A.18, Column N. As at 30 June 2014, there were 43,009 children in out-of-home care in Australia: Productivity Commission, Report on Government Services (2015), Table 15A.18, Column N, Row 9. Rates have increased from 6.8 to 8.1 per 1,000 between 2009 and 2014. At http://www.pc.gov.au/research/recurring/report-on-government-services/2015/community-services/data/rogs-2015-volumef-chapter15-attachment.xlsx (viewed 21 March 2015).

[38] The national rate of Indigenous children in out-of-home care was 9.1 times the rate for non-Indigenous children. In all jurisdictions, the rate of Indigenous children in out-of-home care was higher than for non-Indigenous children, with rate ratios ranging from 6.1 in Victoria to 14.3 in the Northern Territory: Productivity Commission, Report on Government Services (2015), Table 15A.18, Columns F-M, Rows 11-12. At http://www.pc.gov.au/research/recurring/report-on-government-services/2015/community-services/data/rogs-2015-volumef-chapter15-attachment.xlsx (viewed 21 March 2015).

[39] In 2005 a community detention mechanism was introduced to allow the Minister for Immigration and Citizenship the power to make a ‘residence determination’, which permitted a person in immigration detention to live in a specified residence in the community. In 2010, following the announcement of the New Directions in Detention policy (2008) significant numbers of children and their families were moved to community detention. On 25 November 2011, the government announced that asylum seekers who arrive in Australia by boat would be placed into the community while their claims were assessed, and bridging visas were announced. At the time of the Commission’s report into these arrangements (19 July 2012), there were1320 people in community detention and 2418 who had arrived by boat on bridging visas. See Australian Human Rights Commission, Community arrangements for asylum seekers, refugees and stateless persons: Observations from visits conducted by the Australian Human Rights Commission from December 2011 to May 2012 (2012). At http://www.humanrights.gov.au/human_rights/immigration/2012community-arrangements/ (viewed 21 March 2015). As at 28 February 2015, there were 2995 people living in the community under a residence determination and 26 586 people living in the community after grant of a Bridging Visa E. See Department of Immigration and Border Protection, Immigration Detention and Community Statistics Summary 28 February 2015 (2015), p 3. At http://www.immi.gov.au/About/Pages/detention/about-immigration-detention.aspx (viewed 21 March 2015).

[40] In 2014 there was a decrease in the number of children held in closed detention. Department of Immigration and Border Protection, Immigration Detention and Community Statistics Summary 28 February 2015 (2015), p 8. At http://www.immi.gov.au/About/Pages/detention/about-immigration-detention.aspx (viewed 21 March 2015).

[41] MOUs establishing third country processing were ratified with Nauru and Papua New Guinea on 3 August 2013 and 6 August 2013 respectively. As at 30 June 2014, a total of 2026 people had been transferred to Nauru and 1959 people to Manus Island, Papua New Guinea. Department of Immigration and Border Protection, Annual Report 2013–2014 Part 3 – Report on performance (2014), pp 198-199. At http://www.immi.gov.au/about/reports/annual/2013-14/pdf/index.htm (viewed 21 March 2015).

[42] As at 28 February 2015 107 children were held in the Nauru Offshore Processing Centre. Minister for Immigration and Border Protection, Immigration Detention and Community Statistics Summary 28 February 2015 (2015), p 3. At http://www.immi.gov.au/About/Pages/detention/about-immigration-detention.aspx (viewed 21 March 2015).

[43] The average period of detention in detention facilities is currently 408 days (approximately 13 months). Minister for Immigration and Border Protection, Immigration Detention and Community Statistics Summary 28 February 2015 (2015), p 10. At http://www.immi.gov.au/About/Pages/detention/about-immigration-detention.aspx (viewed 21 March 2015).

[44] In June 2013 UNHCR noted cramped, crowded, hot conditions, hygiene concerns and insufficient division between families and single adult males at the Manus Island Regional Processing Centre. UNHCR found that the conditions on Manus Island were harsh and remained below international standards. UNHCR, UNHCR Monitoring Visit to Manus Island, Papua New Guinea, 11–13 June 2013 (2013), p 10-11. At http://www.refworld.org/docid/51f61ed54.html (viewed 21 March 2015). In December 2012 UNHCR found the conditions in the Nauru regional processing centre to be ‘harsh and unsatisfactory’ with similar concerns to those on Manus Island: extreme heat, overcrowding, and lack of privacy. UNHCR, UNHCR Mission to the Republic of Nauru, 3–5 December 2012 (2012). At http://www.refworld.org/docid/50cb24912.html (viewed 21 March 2015).

[45] A two-year long investigation by the Commonwealth Ombudsman has clearly established a link between prolonged detention and deterioration in mental health. The mental health impacts of detention are reflected in high rates of self-harm. Between January 2011 and February 2013, there were 4313 incidents of self-harm across the immigration detention network. See Commonwealth Ombudsman, Suicide and Self-harm in the Immigration Detention Network (2013), p 150. At http://www.ombudsman.gov.au/reports/investigation/2013 (viewed 21 March 2015). The Commission’s 2014 National Inquiry into Children in Immigration Detention, which examined the impacts of detention on children, has provided unequivocal evidence that detention of children for lengthy periods results in significant mental and physical illness and developmental delays in these children. Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention (2014), p 13. At https://www.humanrights.gov.au/publications/forgotten-children-national-inquiry-children-immigration-detention-2014 (viewed 21 March 2015).

[46] Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and related issues (29 August 2012). At http://www.dfat.gov.au/geo/nauru/Pages/memorandum-of-understanding-between-the-republic-of-nauru-and-the-commonwealth-of-australia-relating-to-the-transfer-to-and.aspx (viewed 21 March 2015); Memorandum of Understanding Between the Government of the Independent State of Papua New Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of certain persons, and related issues (6 August 2013). At http://www.dfat.gov.au/geo/papua-new-guinea/Pages/memorandum-of-understanding-between-the-government-of-the-independent-state-of-papua-new-guinea-and-the-government-of-austr.aspx (viewed 21 March 2015).

[47] The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime agreed on a Regional Cooperation Framework in 2011, underpinned by a set of core principles including, inter alia, “ii. Where appropriate and possible, asylum seekers should have access to consistent assessment processes, whether through a set of harmonised arrangements or through the possible establishment of regional assessment arrangements, which might include a centre or centres, taking into account any existing sub-regional arrangements.” See further Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, Regional Cooperation Framework. At http://www.baliprocess.net/regional-cooperation-framework (viewed 21 March 2015).

[48] Complementary protection provisions were introduced through the passage of the Migration Amendment (Complementary Protection) Act 2011 (Cth), which inserted s 36(2)(aa) of the Migration Act 1958 (Cth). The Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013, which is currently before the Senate, proposes to repeal s 36(2)(aa), with administrative arrangements to be used to assess claims for complementary protection in its place. The Commission has expressed concern that this move will lead to breaches of Australia’s non-refoulement obligations. See Australian Human Rights Commission, Submission to the Senate Legal Constitutional Affairs Committee Inquiry into the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Bill 2013 (30 January 2014). At http://www.humanrights.gov.au/submissions/inquiry-migration-amendment-regaining-control-over-australia-s-protection-obligations (viewed 21 March 2015).

[49] Migration Act 1958 (Cth) s 197C.

[50] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). See further the Commission’s submission to the Senate Inquiry into the Bill. Australian Human Rights Commission, Submission to the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the Australian Government’s Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) (31 October 2014). At https://www.humanrights.gov.au/submissions/migration-and-maritime-powers-legislation-amendment-resolving-asylum-legacy-caseload (viewed 21 March 2015).

[51] Department of Social Services, The People of Australia – Australia’s Multicultural Policy (2011). At https://www.dss.gov.au/our-responsibilities/settlement-and-multicultural-affairs/publications/the-people-of-australia-australias-multicultural-policy (viewed 21 March 2015).

[52] See Joint Standing Committee on Migration, Parliament of Australia, Inquiry into Migration and Multiculturalism in Australia (2013). At http://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=mig/multiculturalism/report.htm (viewed 21 March 2015); Access and Equity Inquiry Panel, Access and Equity for a multicultural Australia: Inquiry into the responsiveness of Australian Government services to Australia’s culturally and linguistically diverse population (2012). At https://www.dss.gov.au/our-responsibilities/settlement-and-multicultural-affairs/programs-policy/access-and-equity/access-and-equity-inquiry (viewed 21 March 2015).

[53] In the 2013–2014 financial year, the Commission received 380 complaints under the Racial Discrimination Act 1975 (Cth).

[54] The Independent National Security Legislation Monitor’s annual reports are available at Department of the Prime Minister and Cabinet, Independent National Security Legislation Monitor. At http://www.dpmc.gov.au/inslm (viewed 21 March 2015). A review of Counter-Terrorism Legislation was also conducted in 2012: Council of Australian Governments, Council of Australian Governments Review of Counter-Terrorism Legislation (2013). At http://www.ag.gov.au/Consultations/Pages/COAGReviewofCounter-TerrorismLegislation.aspx (viewed 21 March 2015).

[55] Independent National Security Legislation Monitor, Annual Report 28th March 2014 (2014), p 2. At http://www.dpmc.gov.au/pmc/publication/independent-national-security-legislation-monitor-annual-report-2014 (viewed 21 March 2015).

[56] National Security Legislation Amendment Act (No.1) 2014 (Cth), Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) and Counter-Terrorism Legislation Amendment Act (No.1) 2014 (Cth). The Commission's concerns about this legislation are detailed in its submissions on the proposed legislation. See Submission to the Parliamentary Joint Committee on Intelligence and Security Inquiry into the National Security Legislation Amendment Bill (No. 1) 2014 (21 August 2014). At https://www.humanrights.gov.au/submissions/submission-inquiry-national-security-legislation-amendment-bill-no-1-2014 (viewed 21 March 2015); Australian Human Rights Commission, Submission to the Parliamentary Joint Committee on Intelligence and Security Inquiry into the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (2 October 2014). At https://www.humanrights.gov.au/submissions/inquiry-counter-terrorism-legislation-amendment-foreign-fighters-bill-2014 (viewed 21 March 2015) and Australian Human Rights Commission, Submission to the Parliamentary Joint Committee on Intelligence and Security Inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 (11 November 2014). At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Amendment_Bill/Submissions (viewed 21 March 2015).

[57] The Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012 (Cth), passed in 2012, amended s 22(3)(b) of the Extradition Act 1988 (Cth) to align the wording of the Extradition Act with Australia’s non-refoulement obligations under article 3 of CAT. The Act also amended the Mutual Assistance in Criminal Matters Act 1987 (Cth) to provide for mandatory refusal of mutual assistance where there are substantial grounds for believing that if the request for mutual assistance was granted, the person would be in danger of being subjected to torture. This was previously a discretionary ground.

[58] New offences were created through the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth), passed in 2012. The Act amends the Criminal Code Act 1995 (Cth) to introduce offences of servitude (s 270.5), forced labour (s 270.6A), deceptive recruiting for labour or services (s 270.7), forced marriage (s 270.7B), organ trafficking (s 271.7A – 271.7E), and harbouring a victim (s 271.7F).

[59] The Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth), extends existing vulnerable witness protections to adult victims of slavery, slavery-like and human trafficking offences, and includes specific protections for witnesses who may be vulnerable due to a particular characteristic such as a disability or their cultural background. The Act also places the burden of proving the defendant was aged 18 or over on the prosecution.

[60] Attorney-General’s Department, National Action Plan to Combat Human Trafficking and Slavery 2015–2019 (2014). At http://www.ag.gov.au/CrimeAndCorruption/HumanTrafficking/Pages/Australiasresponsetohumantrafficking.aspx (viewed 21 March 2015).

[61] Crimes Act 1900 (NSW) s 93X; Vicious Lawless Association Disestablishment Act 2013 (Qld). These laws, purporting to target motorcycle gangs, have severe penalties and unreasonably limit freedom of association.

[62] Workplaces (Protection from Protesters) Act 2014 (Tas); Summary Offences and Sentencing Amendment Act 2014 (Vic); G20 (Safety and Security) Law 2013 (Qld). These laws unfairly limit freedom of association and peaceful assembly, criminalise certain protest activities and impose harsh penalties.

[63] National Mental Health Commission, Leading, Collaborating, Advising, Reporting. At http://www.mentalhealthcommission.gov.au/our-reports.aspx (viewed 21 March 2015).

[64] Australian Human Rights Commission, Children’s Rights Report 2014 (2014). At http://www.humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2014 (viewed 21 March 2015).

[65] Australian Human Rights Commission, Children’s Rights Report 2014 (2014), pp 10-11. At https://www.humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2014 (viewed 21 March 2015).

[66] The Commission’s report, Equal Before The Law, concluded that people with disabilities have higher rates of interaction with the criminal justice system than other Australians, citing 2012 statistics that indicate 38% of prison entrants reported that they have ever been told by a doctor, psychiatrist, psychologist or nurse that they have a mental health disorder and 46% of prison discharges reported that they have ever been told they have a health condition – mental health, including drug and alcohol abuse. Australian Human Rights Commission, Equal Before the Law: Towards disability justice strategies (2014) p 12. At https://www.humanrights.gov.au/our-work/disability-rights/publications/equal-law (viewed 21 March 2015). In 2014 the Commission inquired into complaints by four Aboriginal men with intellectual and cognitive disabilities who had been incarcerated for a number of years despite being found unfit to stand trial or not guilty by reason of insanity. KA, KB, KC and KD v Commonwealth of Australia [2014] AusHRC 80. At https://www.humanrights.gov.au/our-work/legal/publications/ka-kb-kc-and-kd-v-commonwealth-australia (viewed 21 March 2015). The Aboriginal Disability Justice Campaign advocates for progress in relation to the indefinite incarceration of Aboriginal people with intellectual and cognitive disabilities. People with Disability Australia, Aboriginal Disability Justice Campaign (2015). At http://www.pwd.org.au/adjc/about-us-adjc.html (viewed 21 March 2015).

[67] Between 2000 and 2013 the imprisonment rate for Aboriginal Torres Strait Islander adults increased by 57%. Most recent statistics show Aboriginal and Torres Strait Islander adults are imprisoned at 13 times the rate of non-Indigenous adults. Aboriginal children are imprisoned at 24 times the rate of non-Indigenous young people. Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage Key Indicators 2014 (2014), p 4.103. At http://www.pc.gov.au/research/recurring/overcoming-indigenous-disadvantage/key-indicators-2014#report (viewed 27 January 2015). On an average day, Indigenous children aged 10–17 were 16 times as likely to be under community-based supervision as non-Indigenous young people and 28 times as likely to be in juvenile detention: Australian Institute of Health and Welfare, Youth Justice in Australia 2012–13 (2014), p 13. At http://www.aihw.gov.au/publication-detail/?id=60129546738 (viewed 21 March 2015).

[68] In particular, children have been held in adult detention facilities in Western Australia and Victoria. These transfers have been examined through litigation in which the Commission intervened, Wilson v Joseph Michael Francis, Minister for Corrective Services for the State of Western Australia [2013] WASC 157 (3 May 2013), and a Victorian Ombudsman investigation, Investigation into Children Transferred from the Youth Justice System to the Adult Prison System (2013). At https://www.ombudsman.vic.gov.au/getattachment/6a579e49-212e-42b0-9d3c-791e2d60e102//reports-publications/parliamentary-reports/investigation-into-children-transferred-from-the-y.aspx (viewed 21 March 2015). The National Children Commissioner raised this concern in her inaugural report. Australian Human Rights Commission, Children’s Rights Report 2013 (2013), p 33. At https://www.humanrights.gov.au/publications/childrens-rights-report-2013 (viewed 21 March 2015).

[69] The Australian Human Rights Commission’s consultations in the lead up to the UPR identified successful diversionary initiatives in Victoria, the ACT and Tasmania.

[70] In December 2013 the Australian Government announced a $13.4 million reduction in funding of the Indigenous Legal Aid and Policy Reform Program. The cuts will take effect from 1 July 2015. The reduction in funding may affect various services provided by the community controlled not-for-profits funded out of this program, including legal assistance, community legal education, prison, law reform and advocacy activities. Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice and Native Title Report 2014 (2014), p 24. At https://www.humanrights.gov.au/publications/social-justice-and-native-title-report-2014 (viewed 21 March 2015).

[71] Justice targets refer to targets to address the overrepresentation of Aboriginal and Torres Strait Islander peoples as both offenders and victims in the criminal justice system. It has been recommended by the National Congress of Australia’s First Peoples that targets be set to halve the gap in rates of incarceration for Aboriginal and Torres Strait Islander people. Proposed justice targets could be included in the existing Close the Gap framework. The government has stated that it rejects the adoption of justice-related targets, although this has been considered. See Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice and Native Title Report 2014 (2014), pp 117-123. At https://www.humanrights.gov.au/publications/social-justice-and-native-title-report-2014 (viewed 21 March 2015).

[72] Justice reinvestment involves diverting and reinvesting funds used for imprisonment to services that address underlying causes of crime in communities with high rates of offending. Justice reinvestment trials have been recommended by the Senate Legal and Constitutional Affairs Committee in its inquiry into justice reinvestment. Senate Legal and Constitutional Affairs Committee, Value of a justice reinvestment approach to criminal justice in Australia (2013), p 124. At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2010-13/justicereinvestment/report/index (viewed 21 March 2015). The Aboriginal and Torres Strait Islander Social Justice Commissioner has advocated for justice reinvestment over the past five years. The 2014 Social Justice and Native Title Report recommends that, ‘the Australian Government take a leadership role on justice reinvestment and works with states, territories and Aboriginal and Torres Strait Islander communities to identify further trial sites.’ Australian Human Rights Commission, Social Justice and Native Title Report 2014 (2014), p 12. At https://www.humanrights.gov.au/our-work/aboriginal-and-torres-strait-islander-social-justice/publications/social-justice-and-nati-0 (viewed 5 March 2015).

[73] New mandatory sentencing laws for a range of offences have been introduced by the states of Queensland (2012 and 2013), Victoria (2013 and 2014) and New South Wales (2014). Existing mandatory sentencing regimes were expanded in Western Australia and the Northern Territory in 2013. See L Roth, ‘Mandatory Sentencing Laws’, NSW Parliamentary Research Service e-brief. At http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/Mandatorysentencinglaws/$File/mandatory+sentencing+laws.pdf (viewed 21 March 2015). For analysis of the human rights impact of mandatory sentencing laws, see the Commission’s submissions as amicus curiae in Magaming v The Queen [2013] HCA 40 (11 October 2013). At https://www.humanrights.gov.au/our-work/legal/submissions/submission-court-intervener-and-amicus-curiae (viewed 21 March 2015).

[74] Suspended sentences were abolished in the state of Victoria for offences committed on or after 1 September 2014 by the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 (Vic).

[75] Victorian Ombudsman, Investigation into Deaths and Harm in Custody (2014), p 27. At https://www.ombudsman.vic.gov.au/getattachment/2998b6e6-491a-4dfe-b081-9d86fe4d4921 (viewed 21 March 2015); Information provided in relation to Australian Human Rights Commission submission to UN Committee Against Torture from ACT Human Rights Commission to Australian Human Rights Commission, August 2014.