Annual Report 2008-2009: Chapter 3
Annual Report 2008 - 2009
Chapter 3:
Monitoring Human Rights
The Commission plays a significant role in monitoring legislation and policy
in Australia to assess compliance with human rights principles. This monitoring
role includes:
- examination and reporting on issues of race, age, sex and disability
discrimination and human rights - the assessment of legislative and policy proposals, resulting in submissions
to governments, law reform bodies and parliamentary committees.
This
chapter highlights the Commission’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 legislation and proposed legislation.
The Commission’s submissions play an important role in fostering public
debate and an awareness of human rights principles. The Commission 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.
A range of submissions made by the Commission during 2008-09 are listed in
this chapter.
For further information about the Commission’s submissions, refer to
www.humanrights.gov.au/legal/submissions.html.
For further information about the process whereby federal legislation is
made, refer to the Parliament of Australia website at: www.aph.gov.au.
3.1 Submissions
made by the Commission as part of its monitoring role in relation to human
rights standards
3.1.1 Native Title
Amendment Bill 2009
During the first half of 2009, the Commission made three submissions to the
federal Attorney-General about proposals to reform the native title system.
These submissions were based on recommendations by the Aboriginal and Torres
Strait Islander Social Justice Commissioner in Native Title Reports over a
number of years.
The most significant of these submissions was to the Senate Legal and
Constitutional Affairs Committee’s inquiry into the Native Title Amendment
Bill 2009. This Bill was introduced by the Attorney-General in March 2009 and
contains changes designed to facilitate negotiated settlements in native title
claims, rather than litigation.
The Commission supported the Government’s objectives of ensuring
that:
- parties to native title claims engage in effective negotiation and
agreement-making - native title contributes to closing the gap between Indigenous and
non-Indigenous Australians through achieving agreements with broad benefits to
Indigenous peoples.
The Commission made a number of recommendations
for improvements to the Bill in relation to mediation, powers of the court and
rules of evidence. The Commission also recommended that the Bill be amended to
deal with additional matters including:
- shifting the burden of proof to the respondents for some elements of native
title claims - limiting extinguishment to the current tenure extinguishment and repealing
the provisions that validate past extinguishment where those extinguishing acts
no longer continue to have effect - separating the right to negotiate from the progress of the native title
claim - reinstating the right to negotiate for all compulsory acquisitions of native
title.
The Commission believes these further reforms are necessary
if the native title system is to operate in a way that realises the human rights
of Aboriginal peoples and Torres Strait Islanders.
3.1.2 Review of the Sex
Discrimination Act 1984
The Commission made a substantial submission to the Senate Legal and
Constitutional Affairs Committee Inquiry into the effectiveness of the
Commonwealth Sex Discrimination Act 1984 (Cth) in eliminating
discrimination and promoting gender equality.
The Commission made a number of recommendations for amendments to the Sex
Discrimination Act to address problems which have emerged in the 25 years since
its adoption, enhance its ability to progress substantive gender equality and
promote systemic reform and fulfill Australia’s international human rights
obligations.
The Commission recommended a two-staged reform process. The first stage would
see a number of amendments to strengthen the Sex Discrimination Act and improve
associated institutional arrangements, for example:
- removing the comparator element of direct discrimination
- extending protection from discrimination on the grounds of family and caring
responsibilities - including breastfeeding as a separate protected ground of
discrimination - expanding the definition of ‘marital status’ to include those in
same-sex couples - ensuring equal protection for both women and men.
The second
stage of reform would be aimed at achieving longer term change in relation to
our national culture of equality and the roles of women and men in modern
Australian life. This second stage of reform would take place over three years
and involve holding a national inquiry about whether Australia should have a
comprehensive Equality Act; or alternatively, a reference to the Australian Law
Reform Commission, or another suitable body, to consider adoption of a human
rights based framework for the Sex Discrimination Act. The Commission also
called for a review of the permanent exemptions under the Act, with a three-year
sunset clause on the permanent exemptions that are currently in place.
3.1.3 Fair Work Bill
2009
In January 2009, the Commission made a submission on the Fair Work Bill
2009.
The Commission welcomed many of the changes to the law proposed by the Fair
Work Bill including the restoration of unfair dismissal rights to many
employees, the facilitated bargaining framework for the low paid, and the
extension of parental leave entitlements to same sex couples.
However, the Commission recommended that the Bill be amended to implement
fully Australia’s international human rights obligations. The recommended
amendments included:
- broadening the right to request flexible working arrangements
- extending eligibility for unpaid parental leave to employees who have had a
number of employers and to those in different types of employment, including
part-time and casual employment
- reducing the minimum employment period to access unfair dismissal
protections to three months for all employees - providing some measure of protection for employees of small businesses from
unfair dismissal.
3.1.4 Disability
Discrimination and Other Human Rights Legislation Amendment Bill 2008
In January 2009, the Commission made a submission to the Senate Inquiry into
the Disability Discrimination and Other Human Rights Legislation Amendment Bill
2008. This Bill contained a number of proposed changes to the Disability
Discrimination Act and the Human Rights and Equal Opportunity Act designed to
improve the effectiveness of both laws in promoting and protecting human
rights.
The Commission strongly supported many of the proposed changes, including
statutory recognition of the United Nations Convention on the Rights of
Persons with Disabilities in the Disability Discrimination Act, the removal
of the dominant reason test in the Age Discrimination Act, the change of the
Commission’s legal name to the Australian Human Rights Commission, and
technical changes to provisions concerning the Commission’s complaint
handling functions.
However, the Commission had a number of concerns about proposed changes to
the Disability Discrimination Act and made recommendations that:
- the explicit requirement for a ‘comparator’ in the definition of
direct discrimination be removed - the definition of indirect discrimination be amended to focus on
disadvantage caused by a requirement or condition to persons with the aggrieved
person’s disability (similar to the Sex Discrimination Act) - the provisions relating to the duty to provide reasonable adjustments be
simplified.
3.1.5 Other
submissions
During 2008-09, submissions were also made to the:
- Department of Prime Minister and Cabinet on the Information Commissioner
Bill 2009 and the Freedom of Information Amendment (Reform) Bill 2009 - Committee on Economic, Social and Cultural Rights about its review of
Australia’s report under the International Covenant on Economic, Social
and Cultural Rights - Australia New Zealand Policing Advisory Agency on the guidelines for police
issuing statements to the media containing descriptions of ethnicity of
suspected criminals - Review of Australia’s Future Tax System on the consultation paper on
the retirement income system - Expert Mechanism on the Rights of Indigenous Peoples in its inquiry into the
lessons learned and challenges to achieve the implementation of the right of
Indigenous peoples to education - Standing Committee on Legal and Constitutional Affairs inquiry into draft
Disability (Access to Premises) Standards - Standing Committee of Attorneys General on the Draft Model Spent Convictions
Bill and consultation paper on the Model Bill - Department of Families, Housing, Community Services and Indigenous Affairs
on the National Disability Strategy - Queensland Minister for Natural Resources and Water on the proposed Archer
Basin Wild River Declaration, the Lockhart Basin Wild River Declaration and the
Stewart Basin Wild River Declaration - Senate Rural and Regional Affairs and Transport Standing Committee Inquiry
into the Water Amendment Bill 2008 - Independent review of the Environment Protection and Biodiversity
Conservation Act 1999 - Department of the Environment, Water, Heritage and the Arts on
Australia’s potential ratification of the UNESCO Convention on the
Protection and Promotion of the Diversity of Cultural Expressions - Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights
Sub-Committee in its inquiry into human rights mechanisms and the
Asia-Pacific - 457 Visa Integrity Review on the Issues Paper on 457 Visas: Integrity and
Exploitation - Office of Indigenous Policy, Northern Territory Department of Chief Minister
in its inquiry into outstations policy - House of Representatives Standing Committee on Employment and Workplace
Relations in its inquiry into pay equity and associated issues related to
increasing female participation in the workforce
- Standing Committee on Legal and Constitutional Affairs inquiry into the
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
Reform) Bill 2008 - Community Affairs Committee on the Social Security and Veterans’
Entitlements Legislation Amendment (Schooling Requirements) Bill 2008 - Standing Committee on Legal and Constitutional Affairs on the Independent
Reviewer of Terrorism Laws Bill 2008 [No. 2] - United Nations Human Rights Committee on Australia’s implementation of
the International Covenant on Civil and Political Rights - NSW Legislative Council’s Standing Committee on Social Issues on its
inquiry into overcoming Indigenous disadvantage - Joint Standing Committee on Migration’s inquiry into immigration
detention in Australia - Northern Territory Emergency Response Review Board
- Department of Families, Housing, Community Services and Indigenous Affairs
(FaHCSIA) on its Discussion Paper: Australia’s Children – Safe
and Well, A National Framework for Protecting Australian’s
Children - Legal and Constitutional Affairs Committee on its inquiries into the
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Bill 2008; Evidence Amendment Bill 2008; and Family Law
Amendment (De Facto Financial Matters and Other Measures) Bill 2008 - Federal Attorney-General’s Department on whether Australia should
become a party to the Optional Protocol to the Convention on the Elimination of
All Forms of Discrimination Against Women - Australian Government’s Green Paper on Homelessness
- UN High Commissioner for Human Rights on combating of defamation of
religions - Standing Committee on Family, Community, Housing and Youth in its inquiry
into better support for
carers.