Annex 3: Recommendations by the Australian Human Rights Commission for Australia’s UPR appearance

2 Background and framework for human rights promotion and protection

2.2 Scope of international obligations

1. The Commission recommends that Government expedite the ratification of OPCAT and establishment of a National Preventive Mechanism for places of detention.
2. 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.
3. The Commission recommends that Government confirm a timetable for the withdrawal of reservations to ICERD, CEDAW and CRC.

2.3 National framework

4. The Commission recommends that Australia’s human rights obligations be directly incorporated into Australian law.

(a) Human rights education

5. The Commission recommends that Government expand its support for human rights education initiatives, including targeted initiatives for public officials.

(b) Business and human rights

6. The Commission recommends that Government formulate a National Action Plan on Business and Human Rights, in consultation with the business sector.
7. 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.

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

8. The Commission recommends that:
   • Government develop, in partnership with Aboriginal and Torres Strait Islander peoples, a National Strategy to give effect to the UN Declaration on the Rights of Indigenous Peoples;
   • 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.
9. The Commission recommends that adequate funding be provided to the National Congress of Australia’s First Peoples to build a representative Indigenous voice at the national level and for Indigenous legal aid.
10. 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.
11. 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.

(b) Equality of women and men

12. 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.
13. The Commission further recommends that Government amend the Sex Discrimination Act 1984 (Cth) to improve its effectiveness.
14. 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.

(c) Older persons

15. 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

16. The Commission recommends that Government fully fund the National Disability Insurance Scheme.
17. 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.
18. 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

19. The Commission recommends that federal, state and territory laws that continue to discriminate be brought into compliance with the Sex Discrimination Act 1984 (Cth).
20. The Commission recommends that all jurisdictions pass legislation expunging historic criminal convictions for consensual homosexual sex.
21. The Commission recommends that the Australian Parliament legislate to provide marriage equality as a matter of priority.
22. The Commission recommends that Government conduct an inquiry into the issue of surgical intervention on intersex infants.

(f) Rights of the child

23. 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

24. 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.
25. The Commission further recommends the Government continue to expand the use of alternatives to closed detention.
26. 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.
27. 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

28. 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.
29. 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

30. 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.

(c) Trafficking

31. 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

32. 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

33. 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.

(f) Criminal justice system

34. The Commission recommends that Government:
    • adopt targets and introduce justice reinvestment trials to reduce Indigenous incarceration rates;
    • 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.
35. 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.