Inquiry into Australia’s Human Rights Dialogues with China and Vietnam (2011)

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Inquiry into Australia’s Human Rights Dialogues with China and Vietnam

Australian Human Rights Commission Submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade – Human Rights Sub-Committee

August 2011

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1 Introduction and
Background

The Australian Human Rights Commission appreciates the opportunity to
provide a submission to the Inquiry into Australia’s Human Rights
Dialogues with China and Vietnam. The Commission does not propose responding to
all of the terms of reference. Because the Commission’s direct involvement
in the Dialogue process is quite limited, it is not in a position to provide
highly insightful comments on all areas being covered by the inquiry. As such,
this submission addresses two of the terms of reference:
- involvement of non-government organisations;
- the monitoring and evaluation of outcomes including an assessment of whether
  any human rights reforms within those countries have been
  obtained.
The Commission participates in the Dialogue processes with China and Vietnam
in three ways:
1. The Minister for Foreign Affairs and Trade invites the President of the
  Commission, or a representative nominated by the President, to attend the
  dialogue sessions as a member of the Australian delegation;
2. The Department of Foreign Affairs and Trade invites the Commission to
  prepare briefing material on particular agenda items for inclusion in the
  delegation brief; and
1. The Australian Agency for International Development invites the Commission
  to design and implement programs of human rights technical cooperation in order
  to support the Dialogues and to implement that program.

(a) Attendance at
Dialogues

The Commission was not invited to attend the first two Dialogues with China
in 1997 or 1998, but has been invited to and attended all of the China Dialogues
since 1999. The Commission has attended all of the Dialogues with Vietnam from
the initial session in 2002. The President of the Commission has personally
attended most of the Dialogue sessions, and on those occasions where the
President has not been available, a senior representative of the Commission has
attended on his/her behalf.
The Commission views the Dialogues as activities of the Executive and
recognises that as an independent statutory body its role in the Dialogues is
limited. The Commission is not involved in setting the agenda or in deciding on
the strategy to be followed. While it feels free to make recommendations
– and has done so on an informal basis – it recognises that it is up
to the Executive agencies responsible for the Dialogues to set the agenda and
the strategy.
It should be noted that the Executive Government has placed no conditions on
the involvement of the Commission. The Commission’s representatives at
the Dialogues have always felt free to make their views known and to participate
fully in the Dialogues. On occasion this has resulted in the Commission taking
and presenting to the Dialogue partners a view on Australian policy and practice
or on the desirability of changes in the Dialogue partner’s policy and
practice that differs from the views of the Executive Government. The Executive
Departments have not voiced criticism of the Commission for taking a different
position and, in fact, the delegation leaders seem to have found this approach
valuable in demonstrating to the Dialogue partners that pluralism is respected
in Australia.

(b) Preparation of
Briefing

The Commission provides briefing at the invitation of the Department of
Foreign Affairs and Trade (DFAT) on subjects nominated by DFAT. This briefing
has focussed mainly on the role of the Australian Human Rights Commission, as
well as various domestic human rights issues that fall within the
Commission’s responsibilities. This has included briefings on
children’s rights, gender equality, disability, indigenous affairs and
other areas.
The Commission also provides the Dialogues with briefings on progress in the
implementation of the human rights technical cooperation programs. Where the
Dialogue agenda includes approval of the next cycle of the cooperation program,
the Commission also provides a short outline of the activities recommended for
implementation in the next cycle.

(c) Technical Cooperation
Programs with China and Vietnam

Both of the human rights technical cooperation (HRTC) programs operate under
the framework of the Australian Government’s formal human rights dialogue
process with China and Vietnam. The programs are funded by the Australian Agency
for International Development (AusAID) and implemented by the Commission under a
Record of Understanding between the Commission and AusAID.
The program with China is the larger of the two and it also has the longest
history. The proposal for a human rights technical cooperation program was put
forward at the first dialogue session in 1997, as an avenue for providing
practical capacity building for key Chinese agencies in areas relevant to human
rights protection. The program commenced in 1998.
HRTC activities focus on three priority theme areas:
- legal reform,
- women’s and children’s rights; and
- ethnic minority rights.
Each activity is designed and implemented through a cooperative venture
between the Australian Human Rights Commission and a particular Chinese
organisation. In addition, a great many Australian agencies and professionals
from the government and community sectors contribute technical expertise to the
program.
There are approximately a dozen Chinese partner agencies, consisting of:
- Ministry of Foreign Affairs (the lead counterpart organisation)
- All-China Women’s Federation
- Beijing Legal Aid Organisation
- Ministry of Civil Affairs
- Ministry of Justice
- Ministry of Public Security
- National Population and Family Planning Commission.
- State Ethnic Affairs Commission
- Supreme People’s Prosecution Service
- Supreme People’s Court
- United Nations Association of China.
Methods for delivery of program activities include seminars and workshops in
China, study visits to Australia by Chinese delegations, short work placements
in Australian organisations and a small number of scholarships. The program
addresses a wide variety of topics including domestic violence prevention,
reproductive health rights, criminal justice procedures, humane treatment of
detainees in correctional facilities, as well as alternatives to detention. In
recent years some activities have also aimed to encourage the emerging civil
society in China.
HRTC activities support legislative and policy initiatives related to human
rights, as well as more grass-roots activities such as pilot programs. The
program has been able to assist some quite major reform programs being pursued
by the Chinese authorities in areas relevant to human rights.
The HRTC has grown progressively since its inception, in terms of both
funding and number of partner agencies. AusAID funding for the 2010-2011 program
cycle was $2.5 million.
The human rights technical cooperation program with Vietnam is more recent,
having commenced in 2006. Implementation of the Vietnam HRTC follows a quite
similar model to the program with China. Each activity in the program is
implemented as a cooperative venture between the Commission and a particular
Vietnamese organisation. Activities include seminars and training workshops,
study visits, development of publications and other initiatives.
The Commission is currently working with seven Vietnamese partner agencies
in the HRTC:
- Ministry of Foreign Affairs (the lead counterpart organisation)
- Ministry of Justice
- Ministry of Public Security
- Supreme People’s Court
- Supreme People’s Prosecution Service
- Vietnam Lawyers’ Association
- Vietnam Women’s Union
Subject areas that have been addressed in HRTC activities include skills for
conducting community education on legal rights and responsibilities rights,
human rights training for lawyers, raising awareness of women’s rights,
access to the court system and administration of criminal justice. The Vietnam
HRTC is a smaller program than the one with China. The funding for the most
recent cycle in 2010-2011 was approximately $1.1 million.
Both the China and Vietnam HRTC programs are linked to the Human Rights
Dialogues, the processes for their formal approval. The usual process is that
the next cycle of each program is approved at the regular Dialogue sessions.
However, where this is not practical due to delays in the scheduling sessions,
approval has been given out-of-session though an exchange of letters between the
Dialogue partners.

2 Response to the Terms
of Reference

2.1 Involvement of
Non-Government Organisations

Commission supports the involvement of non-government organisations in the
Human Rights Dialogues. They are a valuable source of information and experience
and their participation gives the Dialogue process added credibility,
transparency and accountability.
The Commission welcomes efforts that have been made by the Australian
Government to engage Australian NGOs in the Dialogue. Those efforts include
seeking written submissions from interested NGOs for incorporation into the
brief which DFAT provides to Australian delegates, raising their concerns during
the formal Dialogue session and providing debriefs on the Dialogues during the
regular DFAT-NGO consultations on human rights and on other occasions. In the
case of the China-Australia Human Rights Dialogue (when held in Australia)
Australian NGOs have had opportunities to interact directly with Dialogue
delegates through participation in parallel talks and welcome receptions
The Commission believes that these initiatives should be maintained and
strengthened. In addition, various other options have been proposed by NGOs to
facilitate more substantial participation by their sector. These have included
inviting NGOs to attend the Dialogue meetings in an observer capacity, holding
informal seminars with NGOs in conjunction with the formal Dialogue, and
conducting ‘parallel Dialogues’ involving NGOs, academics and legal
experts at the same time as, but separate from, the government meeting. These
ideas all have merit and are worth exploring further.
The 13th round of the China-Australia Human Rights Dialogue, held in Beijing
in December 2010, included a positive example of NGO participation. After the
formal Dialogue session concluded, a short symposium of Chinese NGOs was
convened. The symposium was attended by representative of the China Foundation
for Poverty Alleviation, China Educational Association for International
Exchanges, China Centre for Promotion of Grassroots Democracy, China Society for
Human Rights Studies, China Tibetology Research Centre, Internet Society of
China and Beijing Migrant Workers’ Legal Aid Organisation. Each NGO gave a
short presentation on their role and activities in relation to human rights.
While the symposium did not involve Australian NGOs, members of the Australian
delegation attended and were given the opportunity to ask questions and share
information with the Chinese participants. Although the discussion was fairly
limited in terms of both duration and content, it was still quite a useful
exchange. The Commission sees value in continued events of this type in future
Dialogues, hopefully in even more substantial formats.
While the Commission supports these initiatives in principle, maintaining
the trust and confidence of the overseas Dialogue partners also means that steps
to increase the engagement of NGOs needs to be pursued carefully and with
sensitivity. While most NGOs would be acceptable to Dialogue partners there
would be some that would be considered unacceptable as direct interlocutors. In
such circumstances, efforts to secure direct involvement of NGOs could make the
Dialogues unmanageable and unfruitful. Dealing with these sensitivities means
that reaching a point where Australian and overseas NGOs achieve an optimum
level of involvement in the Dialogues will inevitably be an incremental
process.

2.2 Monitoring and
Evaluation of Outcomes

(a) General
Observations

The Commission sees its most significant connection with the Human Rights
Dialogues as being through the human rights technical cooperation programs which
operate under the Dialogues. The most useful insights that the Commission can
provide to this inquiry are from the perspective of its role as the implementing
agency for these programs. For that reason, the majority of this submission is
focussed on the following term of reference:

‘the
monitoring and evaluation of outcomes including an assessment of whether any
human rights reforms within those countries have been obtained’

To the extent that the two human rights technical cooperation programs form
part of the overall Dialogue process, their results and achievements may be
considered outcomes of the Human Rights Dialogues with China and Vietnam.
The Commission submits that technical cooperation in human rights is an
important vehicle for achieving practical outcomes from the Human Rights
Dialogue process. These programs build on the periodic Dialogue discussions by
facilitating ongoing and more in-depth exchanges addressing issues relevant to
the protection and promotion of human rights. Technical cooperation programs
that are well-designed, properly targeted and implemented to a high standard can
make a significant contribution to the aims of the Human Rights Dialogues by
supporting key reform initiatives in the partner countries.
While the formal Dialogue sessions engage relatively high level officials,
technical cooperation programs afford opportunities to also work with, and
influence, officials more directly engaged in development and delivery of
policies and programs that impact on the rights of citizens. And more generally,
programs of technical cooperation assist in building close relationships between
relevant agencies in each country, generating goodwill and trust which benefits
the Human Rights Dialogue as well as the wider relationship with the partner
country.
In a strategic sense, technical cooperation programs also provide a degree
of leverage for the Human Rights Dialogues. In the Commission’s
experience, the partner countries are more enthusiastic about their
participation in the technical cooperation programs than the Dialogue. This is
particularly the case with China. They tend to view the cooperation programs
more positively because they are seen as less threatening and a source of access
to a range of opportunities. Their desire for the continuation of these programs
provides a level of incentive for them to ‘come to the table’ and
engage in the regular Dialogue sessions.
The Commission therefore considers that continuing participation by
Australia in human rights technical cooperation with China and Vietnam should be
an integral part of strategies to maximise the effectiveness of Human Rights
Dialogues with those countries.
The Commission is keen to continue supporting the Dialogue process through
future participation in programs of human rights technical cooperation with
China and Vietnam. It is our view that the Commission’s effectiveness in
this endeavour would be maximised through the establishment of a strategic
partnership with AusAID, governing the funding and implementation of these and
other programs managed by the Commission on AusAID’s behalf. The
Commission’s current and potential work with AusAID involves
implementation of programs in China and Vietnam and a number of other countries.
Establishing an over-arching framework for these programs would, in our view,
contribute to even more effective collaboration between the Commission and
AusAID. A strategic partnership could provide a more cohesive and flexible
mechanism for the Commission to make available its staff and expertise for these
programs.
The remainder of this submission focuses on highlighting some of the main
outcomes that have been achieved from the HRTC programs, including contribution
to human rights reforms in China and Vietnam. These outcomes, identified through
the monitoring and evaluation strategies applied in the two programs,
demonstrate how technical cooperation can complement and enhance the Dialogue
process by providing an avenue for practical capacity building and more in-depth
exchanges on issues central to the Dialogue.
The following sections highlight some key outcomes from activities of the
China and Vietnam HRTC Programs. As indicated in the following material, the
outcomes from the China HRTC program are more extensive, primarily because it is
a larger program with a longer history. The fact that it has had more time to
evolve and develop has enabled identification of longer term and more
substantial outcomes arising from activities conducted in earlier years. As the
Vietnam HRTC is a more recently established program, the main focus of these
comments is on short –term capacity building resulting from program
activities. However, there are also encouraging signs that such capacity
building will feed into significant human rights reforms being pursued over the
longer term.

(b) China-Australia
Human Rights Technical Cooperation Program

(i) Outcomes from
Activities of the 2010-2011 China HRTC Program

The 2010-2011 HRTC Program was approved in late 2010 by an exchange of
letters between the Governments of China and Australia. AusAID funding for the
2010-2011 program is $2.5 million. Most of the activities from the 2010-2011
program have now been completed.

Activity 3.1 Model United
Nations

Cooperating Organisation: United Nations Association of China
(UNAC).

Activity Description

The China National 2010 Model UN was held in Chongqing on 12-14 November
2010. The activity was organised by UNAC in partnership with Sichuan
International Studies University, which hosted the event and provided the
venue.
The activity simulated the proceedings of the UN Human Rights Council. The
Model UN aimed to further understanding about the UN Human Rights Council,
giving participants the opportunity to discuss global issues and the work of the
UN through cooperation and diplomacy. During the Model UN the students engaged
in debate, drafting and adoption of resolutions focusing on two human rights
related themes:
- Promotion and Protection of the Rights of Persons with a Disability; and
- The Impact of the Global Financial Crisis on the Universal Realisation and
  Effective Enjoyment of Human Rights.
The activity involved the participation of 233 students representing 61
universities from across China. A team of Australian students also attended and
participated in the proceedings.

Key Outcomes

The potential long-term outcomes from this activity include application by
the student delegates of the knowledge about substantial human rights issues and
skills in human rights advocacy, in their future roles.
The strength of this outcome is underlined by the number and breadth of
human rights concepts that were identified by the students in general debate
during the Model UN. Issues raised included:
- The impact of double discrimination on marginalised groups;
- The need to mainstream disability into the Millennium Development
  Goals;
- The importance of health-care assistance;
- The right to participate in meaningful work;
- Identification of structural barriers to equality; and,
- Education as a tool for eradicating poverty and the need to provide equal
  access to education.
Discussion of these concepts indicated an advanced understanding of the
issues being considered and knowledge of their wider impact on marginalised
groups in society. The student delegates selected for the Model UN are generally
considered the cream of talent among Chinese students. Therefore, it is
reasonable to expect that at least some participants will be future leaders and
decision-makers, occupying senior positions in government, diplomacy and law
where the conscious-raising provided by this activity may have a long term
impact.

Activity 6.1 Study Visit on Government and NGO Responses
to Domestic Violence

Cooperating Organisation: All China Women’s Federation
(ACWF)

Activity Description

The ‘Study Visit on Government and NGO Responses to Domestic
Violence’ was held on 25 October – 4 November 2010 in Australia. The
visit took place primarily in two jurisdictions, Victoria and Queensland. The
nine member delegation consisted of officials from the AWCF, the National
People’s Congress, the Ministry of Justice and the Ministry of Civil
Affairs, all with responsibilities in relation to the Chinese response to
domestic violence.
The visit provided the delegation with a broad examination of government
policies and measures to both respond to and to prevent domestic violence
– including domestic violence legislation, independent research, dedicated
police response, specialised court programs, inter-agency mechanisms for
coordinated action and policy procedures. Also examined was the role of NGOs in
providing services to victims of domestic violence – this included legal
services, the provision of emergency safety assistance, crisis accommodation,
specific services for immigrant and Indigenous women experiencing violence,
advocacy services and counselling.

Key Outcomes

The study visit facilitated substantial flows of information and dialogue
between Australian and Chinese participants, which is likely to impact on the
development of China’s domestic violence response. Likely outcomes are in
the following areas:
Legislation: The delegation stated that they felt that the Victorian Family Violence Act 2008 was a particularly useful reference for the
continued drafting and development of the Chinese national domestic violence
law. As such, it is anticipated that aspects of this Act may be included in the
China draft, most likely in relation to the definition of family or domestic
violence.
Law Reform: In relation to Australian laws in this area, the
delegation noted the value of the law reform process in terms of evaluating the
effectiveness of the law and amending it to ensure better protection for women.
This was in specific reference to the joint national inquiry into
Australia’s domestic violence laws being undertaken by the Australian Law
Reform Commission and the NSW Law Reform Commission and also the Victorian Law
Reform Commission’s review of the Victorian legislation in 2006.
Integrated Government Responses: The relevance to the ACWF of the
Victorian Government’s strong leadership role in the ensuring an
integrated domestic violence response across government was noted by the
delegation. The ACWF has a similar role in the Chinese context. It was remarked
that the Victorian State-Wide Steering Committee on domestic violence needed to
be emulated at the national level in China and that this was something the ACWF
could institute relatively quickly.
Police Practices: The Victorian Police Code of Practice for domestic
violence was of strong interest to the delegation. It is anticipated that the
ACWF will select parts of the Code for translation and adaptation to the Chinese
context.
Risk Assessment: A uniform risk assessment tool has been developed in
Victoria for use right across the board in the delivery of medical, counseling,
legal and other service support for women experiencing violence. The delegation
emphasised the value of this tool and indicated that they would like to develop
something very similar (the tool has been subsequently emailed to the
ACWF).
Economic Modelling: During the study visit, a number of the
Australian presenters made mention of the significant economic costs of domestic
violence and how this type of estimate was extremely powerful in terms of
convincing decision-makers of the need to respond to the problem. The delegation
was very taken with the idea of economic modeling for domestic violence and
considered an economic argument would be very persuasive in China. The
delegation said they intend exploring whether an external auditor (such as KPMG)
could be engaged to undertake similar modeling in China.
Funding of NGOs: The delegation found the funding of NGOs to deliver
support services, particularly legal assistance, to victims of domestic
violence, ‘‘an excellent practice to enlarge the
government’s scope and reach into the community whilst reducing their
burden in delivering the service themselves. We want to take this practice back
to China for use in domestic violence service delivery.’’
Referral Systems: Perhaps the most valued part of the NGO program,
and the most likely to result in a short-term outcome, was the referral system
in place at domestic violence hotlines. The ACWF is currently drafting at the
national level, a management plan to streamline the implementation of the
domestic violence hotline that operates through Chinese provinces by the
provincial women’s federations. In various meetings during the study
visit, the delegation leader noted that the ACWF could build this into the
national management plan, including strategies for developing the referral
system and also for improving the call response rate through implementing plans
used in the Australian context.

Activity 7.1 Workshop on
Domestic Violence and Legal Aid Services

Cooperating Organisation: All China Women’s Federation
(ACWF)

Activity Description

The Workshop on Domestic Violence and Legal Aid Services was held in
Changchun, Jilin Province, China, on 12-16 April 2011. The workshop was attended
by approximately 90 Chinese participants including representatives from the
ACWF, the Ministry of Justice, project directors of legal aid centres in ten
provincial women’s federations, lawyers working in legal aid centres in
the ACWF system. The Australian presenters included representatives of the New
South Wales Domestic Violence Legal Service, and the Women’s Information
Referral Exchange (WIRE), Victoria.
The workshop included presentations by Chinese and Australian experts, group
discussions and interactive training sessions. Participants received training on
principles of human rights and gender awareness, the legal framework and civil
and criminal legal responses to domestic violence, and models for providing
legal aid for domestic violence cases. Participants from different provinces and
agencies shared experience on best practice in legal aid services for women
affected by domestic violence.

Key Outcomes

Domestic violence concepts and gender awareness principles

This activity significantly raised awareness among participants of key
concepts and principals relevant to the domestic violence response in the
legal/judicial sphere.
The operation of protection orders as a mechanism for enhancing a
woman’s future safety was a new concept to some of the participants and
was very well received with one participant proclaiming, “Protection
orders are a great new idea for improving safety protections for women. I am
hopeful that our local courts will introduce this pilot program soon to our
city”. This remark and others like it at the workshop signal an increase
in demand for legal change among practitioners. This in turn has the potential
to drive legal reform and therefore may be viewed as a long-term upstream
outcome.
There was also a demonstrated increased understanding of the need to respect
the decisions of a domestic violence victim even in instances when the person
providing advice considers it a wrong or a bad decision, demonstration of
respect and understanding will ultimately empower the victim. A participant from
Zhejiang Province noted: “I see now that women (victims) need to make
their own decisions and that those decisions need to be respected. Sometimes we
get frustrated at women crying and we will just say stop crying and just get a
divorce. This is not right”. Again, this type of comment indicates a
probable change in practice at the grassroots level in the short-term and is an
important outcome of the workshop.

Access to
Justice
One of the major reoccurring themes of the workshop was increasing
women’s access to legal aid services and therefore access to justice. Many
participants were concerned with both standardising and simplifying the process
by which women access legal aid in China as well as lowering the income
threshold for eligibility. To this end, the Australian use of a ‘means
test’ for assessing eligibility for legal aid was of significant interest
to participants. They were particularly taken with the NSW Legal Aid
Commission’s model of being able to determine one’s likelihood of
eligibility by answering seven fairly simple questions online. It was felt that
this type of process would create greater efficiency and transparency in the
legal aid centres. The Australian ‘means test’ as a process is
something which can easily be adopted in China to standardise practice and
procedure, thereby enabling a more streamlined and efficient use of scarce legal
aid funds.

Lobbying and Advocacy
While the ACWF funds legal centres around the country, the most substantial
funding of women’s federation legal aid centres comes from the Ministry of
Justice (MOJ), however, MOJ currently only directly supports 10 of the 31
provinces and autonomous regions. As all 31 provinces and autonomous regions
were present at the workshop, those representatives from outside the 10 funded
centres used the workshop to lobby MOJ officials for financial support for their
legal aid centres in both formal and informal sessions of the workshop program.
The workshop presented a unique opportunity for local women’s federations
to directly lobby the central MOJ to advance their work, an opportunity unlikely
to be made available to them in other spheres.

Activity 8.1
Domestic Violence Training Workshop for People’s Jurors

Cooperating Organisation: All China Women’s Federation
(ACWF)

Activity Description

The Domestic Violence Training Workshop for People’s Jurors was held
in Chongqing Municipality, China, on 14-17 June 2011. The workshop was attended
by approximately 90 Chinese participants including representatives from the All
China Women’s Federation and women’s federations at city and county
levels. The Australian presenters included representatives of Women’s
Legal Service Queensland and the Law Faculty of the Queensland University of
Technology.
The workshop aimed to build the capacity of women’s federation workers
who also act as People’s Mediators and People’s Jurors with the
Chinese justice system. The ACWF advises that approximately 8,000 of the 60,000
women’s federation staff employed around China also serve as
People’s Jurors or People’s Mediators. These women attend court
hearings and mediation conferences related to women and children and in doing
so, seek to protect the rights of the women and children in the judicial
process.

Key Outcomes

The 90 women’s federation jurors who participated in this workshop are
now better equipped to protect the rights and interests of women involved in
judicial proceedings, particularly in cases involving domestic violence. They
have gained new knowledge and skills which will be able to be applied directly
in their day to day work supporting women as they go through the court system
and related legal processes. The training addressed fundamental principles of
human rights and gender equality, but also had a strong focus on practical
measures that bring real benefits for women who have experienced violence or are
at risk of violence. This included measures to prevent domestic violence,
methods for ensuring safety of victims, dealing with power balance and control
issues in a gender context, delivery of counseling and welfare support services
for women, and techniques for effective dispute resolution.
The AHRC considers that there are good prospects that the information shared
at tis workshop will translate into concrete outcomes for women in China. This
conclusion is supported by the strong track record of the ACWF in using HRTC
activities to feed into of new laws, policies and practices to advance their
reform agenda. In this regard, they have demonstrated a commitment to
strengthening the performance and professionalism of women’s federation
people’s jurors. This endeavor should, in the longer term, contribute to
better protection for Chinese women against gender based
violence.

Activity 9.1 Workers’ Rights Internship

Cooperating Organisation: Beijing Migrant Workers’ Legal Aid
Organisation (BLAO)

Activity Description

The Workers’ Rights Internship involved a staff member of BLAO, Ms Bai
Yu, Deputy Director and labour lawyer, visiting Melbourne and Sydney for a
period of approximately two months between October and December 2010.
During the internship, Ms Bai spent time primarily in two key Australian
organisations: Fair Work Australia (two weeks from 12 – 25 October 2010),
and the Fair Work Ombudsman (3 weeks from 10 November – 3 December). Ms
Bai also spent a period of about one and a half weeks with the Australian
Council of Trade Unions (ACTU) and other industry specific unions in Melbourne
and in Sydney, and spent three days visiting the Fair Work Divisions of the
Federal Court of Australia and Federal Magistrates Court. In addition, Ms Bai
undertook a range of shorter visits and meetings with other relevant agencies,
including: government agencies, statutory bodies and community organisations
with responsibilities relevant to labour dispute resolution, workers
representation and workers’ rights.

Key
outcomes

There were some positive indications that this activity may contribute to
some long-term outcomes in the form of high level changes to policy and laws. It
is expected that the activity will assist research and advocacy by BLAO over the
longer term towards improved labour laws and more effective dispute resolution
and investigation bodies, which are responsive to the needs of vulnerable
workers. The workers’ rights publication which Ms Bai is developing (as a
follow-up from the internship) will also assist BLAO’s efforts to promote
reform of the labour system in China. Ms Bai identified a number of specific
reforms that BLAO is, or may in future be, working towards, which may benefit
from this activity:
- Establishment of a specialist body or tribunal for resolving labour disputes
  by mediation and arbitration (similar to the functions of Fair Work Australia),
  with specially trained and qualified labour arbitrators with an understanding of
  the complex issues and laws involved in labour disputes.
- Establishment of specialist labour disputes panel or bench of the court
  system, with specialist labour judges to hear these matters, similar to the Fair
  Work divisions of the Federal Court and Federal Magistrates Court in Australia.
- Strengthening the independence and professionalism of the China’s
  labour dispute arbitration committees and labour inspectorates, through measures
  which ensure transparency and accountability, such as regular reporting,
  publication of reasoned decisions and enhanced selection requirements.
- Reform of labour laws, involving development of minimum standards (drawing
  from the National Employment Standards and modern awards in the Australian
  system).
- Targeting reform to Chinese trade unions, including increased independence
  and much stronger representative role for workers. BLAO already cooperates with
  the trade unions and is well placed to work to influence reform
Ms Bai also identified some more direct or short-term outcomes which may
flow from this activity. They included:
- Ms Bai undertook to recommend development of a publication and information
  campaign targeted at Chinese workers seeking to obtain temporary employment in
  Australia, who are often vulnerable to abuse and exploitation. In particular,
  this would inform would-be migrants about the role of unions in Australia and
  places to seek support, advice and assistance to address issues of exploitation.
- Direct use of Australian cases and legal principles to argue for the
  development of similar protection and principles in Chinese cases and lobby for
  legislative changes;
- Other practical measures included those used by Fair Work Australia and the
  Fair Work Ombudsman to promote public awareness, ensure efficiency and quality
  control in case management.

Activity 9.2 Children’s
Rights Internship

Cooperating Organisation: Beijing Children’s Legal Aid and Research
Centre (BCLARC)

Activity Description

The Children’s Rights Internship involved a BCLARC lawyer and research
fellow, Ms Han Jingjing, visiting Melbourne and Sydney for approximately two
months in February – April 2011. During the internship activity, Ms Han
visited a number of Australian agencies for work placements of between a
half-day to two weeks. They included the Victorian Department of Human Services,
Victoria Legal Aid, the Victorian Law Reform Commission, the Children’s
Court of Victoria, Ombudsman Victoria, the Public Interest Advocacy Centre, the
National Children’s and Youth Law Centre, and the Shopfront Youth Legal
Centre.

Key Outcomes

The Children’s Rights Internship facilitated substantial flows of
detailed information and dialogue between Australian organisations and a
representative of a high profile and effective NGO, which the AHRC considers are
likely to impact on the protection and promotion of children’s rights in
China – through legislation, policy implementation, and the provision of
legal services to children and young people. The Chinese Government currently
views strengthening the country’s child protection system as a national
priority and is developing policies and legislation to this end. The AHRC feels
that this activity contributed in a small way by strengthening BCLARC’s
capacity to support and further these reforms.
This activity is likely to benefit a number of quite specific reform
initiatives that BCLARC is currently involved with. China does not have a
specialised child protection agency or child protection law. However, the
government is currently exploring various options to improve the protection of
vulnerable children. These proposals have support from the highest reaches of
the government. Practical measures include plans by the Ministry of Civil
Affairs to launch a specialised government body to deal with adoption and child
protection cases. This body will have a specific focus on child homelessness. Ms
Han explained that it is envisaged to play a role similar to the Departments of
Human Services currently operating in Victoria and NSW – providing
frontline services to vulnerable children and their families, and ensuring
effective coordination across government agencies and NGOs.
BCLARC has been asked by the Ministry of Civil Affairs to draft a working
paper on effective child protection strategies to guide the design of this new
body. The AHRC feels that the in-depth understanding of the role and functions
of the Victorian Department of Human Services, gained during her two-week
placement there, has undoubtedly strengthened BCLARC’s capacity to
contribute to this important reform.
In the field of juvenile justice, current reforms being considered in China
make the information transferred to Ms Han, and by extension to BCLARC,
particularly relevant. Juvenile cases in China are generally heard in special
tribunals operating with the adult court system. However there is some momentum
to develop a separate system of juvenile courts that would be more appropriate
in better ensuring that the rights of juvenile defendants are protected. BCLARC
has long advocated for this change. The information gathered by Ms Han during
placements at the Victorian Children’s Court and at other agencies working
at the front line with children in the juvenile justice system will strengthen
BCLARC’s capacity to contribute to these reforms.
BCLARC’s healthy relationship with government gives the AHRC
confidence that it is well placed to use the information transferred during this
activity in ways deliver sustainable and long term outcomes. Discussions with Ms
Han throughout the activity confirmed the view that BCLARC, despite its degree
of independence from government, has the ear of government officials. BCLARC
appears to be increasingly engaged in an advisory capacity by government
departments who turn to it for expert guidance on child protection and juvenile
justice issues.

Activity 11.1 Sentencing and Human Rights Study
Visit

Cooperating Organisation: Supreme People’s Court
(SPC)

Activity Description

The Sentencing and Human Rights Study Visit was held in Sydney from 28
February – 4 March 2011. This activity aimed to support current sentencing
reforms being pursued by the SPC under the policy of ‘tempering justice
with mercy’, which is a key element in the SPC’s Third Five Year
Judicial Reform Plan (2009-2013).
The visit provided the delegation with a broad examination of Australian
practice and experience in sentencing matters. There was a particular focus on
proportionality and consistency in sentencing, which is essential for protecting
the rights of offenders. The delegation explored sentencing options for crimes
of varying degrees of seriousness, as well as sentencing of vulnerable offenders
(including juveniles), drug-dependent offenders, and defendants who confess. The
delegation met with a variety of courts, judges, agencies and experts involved
in determination and implementation of sentences.

Key
Outcomes

The study visit facilitated substantial flows of information and dialogue
between Australian and Chinese participants, which the AHRC considers likely to
impact on the development and implementation of judicial reform in China. It was
encouraging that the delegation informed the AHRC that much of information
provided during the study visit was considered transferrable to the Chinese
context.
Such outcomes could take various forms. The one most frequently cited by the
delegation was the possibility of pilot programs at the provincial level. The
delegation felt that it would be useful to explore the applicability of
particular Australian models at the provincial level. They considered the
diversionary programs offered by the NSW Drug Court and NSW Youth Drug and
Alcohol Court to be potentially useful models for developing pilot programs that
would cater specifically for juvenile and drug-dependent offenders. Another
Australian initiative that was flagged by the delegation for possible roll-out
in the form of a provincial-level pilot program was the sentencing database
managed by the NSW Judicial Commission.

Activity 11.2 Sentencing
and Human Rights Seminar

Cooperating Organisation: Supreme People’s Court
(SPC)

Activity Description

The Seminar on Sentencing and Human Rights was held in Shenzhen, China, on
25-26 May 2011. This activity built on the preceding SPC study visit (see
Activity 11.1, above) and part of the objective was to share the learning from
that visit among a wider audience of Chinese officials. The seminar shared
Australian and Chinese experience in sentencing responses from the perspective
of judicial officers, prosecutors and academia. Two senior Australian judges
attended as expert presenters. Chinese participants consisted of 54 central and
provincial representatives from the courts, prosecution offices and academic
institutions from 13 provinces as well as Beijing and Shanghai.
The seminar provided a group of Chinese judges and other legal professionals
with information and knowledge of laws, procedures and practices to ensure
proportionality and consistency in sentencing and implement diversionary and
non-custodial sentencing programs in accordance with the protection and
promotion of human rights.

Key Outcomes

The seminar provided further assistance to the SPC in the sentencing reforms
currently being pursued through its ‘tempering justice with mercy’
policy. That policy is an integral part of the SPC’s Five Year Judicial
Reform Plan (2009-2013).
The seminar enabled central and provincial legal professionals to be exposed
to and develop understanding of the SPC’s ‘tempering justice with
mercy’ policy. This relatively recent policy marks a significant shift
away from the severe penalty doctrine of the longstanding yanda
‘strikehard’ policy which has featured prominently within the
criminal justice system in China for many years. The exchange of dialogue
amongst practitioners is likely to further influence national policy development
in a manner that moderates judicial discretion within the sentencing process
that is more consistent with the protection of the human rights of offenders.
The seminar also provided a platform to refine SPC’s sentencing guidelines
and sentencing standardization initiatives in general that support the
overarching policy.
In addition the seminar provided an opportunity for legal practitioners to
become familiar with some new Chinese laws relevant to the protection and
promotion of human rights, such as the Eighth Amendment to the Criminal Law of
the People’s Republic of China[1]. The 8th
Amendment is a very recent development and has a substantial human rights focus.
It explicitly provides for the establishment of a community corrections and
non-custodial punishment system within the criminal law, following the
successful trialing of pilot programs across the country since 2003. Both the
Australian and Chinese models that were canvassed prioritized protection of
offenders through education, preventative measures, rehabilitation and
reintegration into the community.
The seminar impressed upon participants the importance of focused and
comprehensive community engagement in relation to sentencing reform. The SPC is
very concerned about ensuring public trust and confidence in the judicial
system. They recognize that successful implementation of the ‘balancing
leniency and severity’ policy requires broad based stakeholder consensus
and understanding about how the system should operate. The seminar included
valuable discussion about community education programs and measures for ensuring
public access to the SPC’s sentencing opinions and guidelines, as ways to
enhance the transparency and credibility of the judicial
system.

Activity 12.1 Seminar on Protection of Cultural Diversity
for Ethnic Minorities

Cooperating Organisation: State Ethnic Affairs Commission
(SEAC)

Activity Description

The Seminar on Protection of Cultural Diversity for Ethnic Minorities was
conducted in Jinghong, Yunnan Province, China over a period of three days on
8-10 April 2011. The Seminar was attended by approximately 40 Chinese
representatives including officials from SEAC as well as local and provincial
ethnic and religious affairs commissions (including from Yunnan, Shanghai,
Chongqing, Inner Mongolia Autonomous Region, Heilongjiang, Fujian, Hubei,
Sichuan, Guizhou and Xinjiang Autonomous Region). Among the 40 participants were
representatives of at least 13 ethnic nationalities.
The Australian presenters included representatives of the NSW Community
Relations Commission and the Commonwealth Department of Education, Employment
and Workplace Relations. Their presentations described Australian experience in
multiculturalism and provision of culturally appropriate services from
culturally diverse backgrounds, including indigenous Australians.

Key Outcomes

As a result of this activity, the Chinese participants gained a deeper
understanding of human rights principles and their application to cultural
diversity. The AHRC considers it reasonable to conclude that at least some of
the participants, in particular those working in central and provincial ethnic
affairs commissions, are likely to incorporate these new insights into their
future work. This may manifest itself in changes such as greater participation
by minority communities into developing programs and policies, better processes
for engagement and consultation, recognition of the need to continually revise
programs and policies to ensure they remain relevant for minorities, and
creating opportunities for minorities to be employed in the public service and
hold senior government positions.

Activity 13.1 Family Planning
and Human Rights On-Site Monitoring

Cooperating Organisation: National Population and Family Planning
Commission (NPFPC)

Activity Description

The ‘Family Planning and Human Rights On-site Monitoring’ took
place on 1 – 7 November 2010 in two of the NPFPC’s pilot locations:
Ningxia Autonomous Region and Jiangxi Province.
This activity was undertaken by an advisory team made up of Chinese and
Australian experts. The Australian members of the team included representatives
of Family Planning NSW and the NSW Health Care Complaints Commission. The
advisory team provided direct guidance and advice to officials from the pilot
counties on the implementation of human rights principles into the delivery of
family planning and reproductive health services. Approximately 50-60 Chinese
participants took part in the workshop sessions in each location.

Key Outcomes

The Family Planning and Human Rights On-site Monitoring was aimed at
assisting the NPFPC implement the Chinese Government’s comprehensive
reform of its approach to population and family planning in conformity with the
1994 International Conference on Population and Development (ICPD). The AMC
considers that outcomes from this activity are likely to be fairly modest, but
that it will nevertheless further the momentum of change created by cooperation
under HRTC in the pilot counties and surrounding areas.
Information transferred during this activity is likely to be useful in
informing the ongoing development of high level policy by the NPFPC, such as by
strengthening the concept of informed choice and rights based principles
including client participation, accessibility and safety, emphasis on
development of effective complaints processes (which is clearly a priority for
NPFPC) and their implementation in policy guidelines issued to lower level
commissions and service providers.
Some short-term outcomes in the form of changes to practice as well as
training and awareness-raising at provincial and local levels are also likely.
The activity strengthened county level participants’ understandings of
human rights concepts and implementation through a wide range of measures in
areas of privacy, staff training and management, conducting clinical
consultations and counseling, managing client feedback and complaints and
conducting training and dissemination targeted to particular disadvantaged and
excluded groups. Many local level service providers and participants expressed
great enthusiasm for this detailed information and sought out copies of
resources from Australian participants, so it is likely that some of the
information and strategies transferred will be adopted in changes in practice at
local levels.
The activity is also likely to result in strengthened evaluation mechanisms,
through increased understanding of the logframe and indicators, as well as
monitoring and evaluation strategies shared by Family Planning NSW, and methods
for seeking client feedback shared by NSW Health Care Complaints Commission.

Activity 14.1 Family Planning and Human Rights Training

Cooperating Organisation: National Population and Family Planning
Commission (NPFPC)

Activity Description

The Family Planning and Human Rights Training Workshop was held in Yinchuan,
Ningxia Hui Autonomous Region, China, on 14-16 June 2011. The workshop was
attended by 60 Chinese officials and family planning practitioners from Beijing
and from several of the NPFPC’s pilot provinces across China. Australian
presenters included representatives of New South Wales Family Planning.
The workshop discussed practical measures to ensure that human rights are
promoted and protected in the delivery of family planning and reproductive
health services. As in previous workshops, a central theme of the activity was
the importance of informed choice in family planning, and the role of incentives
as opposed to punitive measures in the administration of family planning
policies.

Key Outcomes

As a result of this activity, the NPFPC and local family planning agencies
across a number of Chinese provinces are better equipped to apply human rights
based approaches in the delivery of family planning and reproductive health
services. This includes greater emphasis on choice as opposed to coercion in
administration of government policy on family planning. The training addressed
measures to protect the privacy and confidentiality of clients. In addition,
there was a strong focus on measures for ensuring that services are culturally
appropriate and target the needs of minorities, with specific reference to the
large Muslim minority population in Ningxia Hui Autonomous Region. Participants
also received training on the provisions of the International Planned Parenthood
Federation (IPPF) Charter on Sexual and Reproductive Rights.
The likelihood that this workshop will produce concrete outcomes, through
the information and knowledge being applied in the ongoing work of family
planning officials, is enhanced by the fact that it is feeding into a vigorous
program of reform of China’s family planning system. Greater attention to
human rights protection is a key element in these reforms. The reforms being
driven by the NPFPC are at the central policy level and also at local level
though a quite extensive pilot program across six provinces and autonomous
regions. Ningxia Hui is one of the pilot provinces, and this workshop directly
assisted the implementation of the pilot in this location.
NPFPC has consistently demonstrated a commitment to applying the information
from HRTC activities in the development of practical measures to enhance service
delivery in family planning. Feedback from the NPFPC officials and participants
was universally positive with comments about the usefulness and practical
applicability of the information to the Chinese setting. Likely outcomes include
more effective community education on reproductive health rights, more effective
measures to ensure client privacy, greater attention to the cultural and other
needs of minority groups, more sensitive techniques for client counseling, less
stigmatization of young and unmarried clients, and giving clients greater
autonomy and control over decisions affecting them.

Activity
15.1 Human Rights Website Development

Cooperating Organisation: National Population and Family Planning Commission
(NPFPC)

Activity Description

The Human Rights Website Development builds on an activity implemented in
the 2006-2007 HRTC. That activity involved the development by the NPFPC of a
website on reproductive health rights for access in China by service providers,
clients, government agencies, members of the public and other stakeholders.
The above website established in the earlier HRTC activity contains
comprehensive information on reproductive health rights including international
standards, relevant Chinese laws and regulations and details of relevant family
planning initiatives at the central, provincial and local levels. It also
includes guidance on the procedures for making complaints about family planning
services. Having been operational for several years, the website required
updating. There was a need to incorporate new policies, standards and
information resources that have been developed in recent years.

Key Outcomes

This activity facilitated the development and updating of an online resource
that will provide comprehensive and up-to-date information on reproductive
health rights. As a result of this activity, members of the public will have
easier access to information which will enhance their knowledge and
understanding of reproductive health rights. The activity will also give family
planning agencies and other relevant organisations better access to information
they need in order to protect and promote reproductive health
rights.

Activity 16.1 Seminar on Government Purchase of NGO
Services

Cooperating Organisation: Ministry of Civil Affairs
(MCA)

Activity Description

The Seminar on Government Purchase of NGO Services was held in Hangzhou,
Zhejiang Province, on 6-7 December 2010. The Chinese participants at the seminar
included 32 central and provincial level officials from five provinces,
representatives from fourteen social organisations and eight academics from four
universities. The Australians presenting at the seminar included experts from
the NSW government and from the NSW NGO sector.
The seminar examined technical issues associated with government contracting
of NGOs to provide services on behalf of government, and also the fundamental
principles and approaches which underpin these contractual relationships and
which have important implications for human rights protection. For example,
Australian presentations highlighted the careful balance needed to safeguard the
autonomy and independence of civil society organisations while at the same time
ensuring accountability by those organisations in terms of outcomes delivered.
The presentations also emphasised the positive benefits to be gained from giving
NGOs who enter these contracts the freedom to pursue not only provision of
services to vulnerable groups but also wider advocacy on relevant policy
issues.

Key Outcomes

The seminar provided central and provincial government officials with new
insights on ways of working with NGOs that are more conducive to the development
of a healthy civil society. The seminar itself was a valuable networking
opportunity for government and NGO representatives, and an opportunity to
develop closer working relationships.
In terms of outcomes, it was encouraging that the seminar was aligned
closely with the Chinese Government’s reform objectives in this subject
area. From the outset, the seminar was framed by key policy objectives of the
Chinese government in relation to purchase of NGO services. These include to
enhance the quality and quantity of services to meet public demand, and to
provide more focused capacity building of NGOs. Information and experience
transferred and shared by the Australian experts is likely to be useful in
assisting MCA’s pursuit of these reforms. The activity may also contribute
to broader reforms in re-shaping government attitudes to NGOs. For example, the
activity may help secure a stronger commitment by government to developing
partnership models with NGOs and allowing NGOs greater freedom to undertake
advocacy and policy development. Realistically though, it is to be expected
that changes in this direction will be very gradual and incremental.
Outcomes of a more specific technical nature are also likely to flow from
this activity. These are changes in procedure and practice in the contractual
arrangements between Government and NGOs. These include further development of
tendering processes and criteria-based decision-making on the types of services
they will fund. Quality of welfare services may be enhanced by the adoption of
more open and competitive processes for contracting of NGO service providers.
The current situation in China is characterised by a marked lack of competition,
with the majority of contracts are given to a very limited pool of suppliers.
This inevitably raises questions about the capacity of NGOs and their efficiency
in service delivery.
The seminar may also encourage the adoption of clear evaluation outcome and
risk management frameworks by both government agencies and NGOs from the outset
of service planning and implementation. These issues featured prominently in the
Australian presentations, and the Chinese participants seemed receptive to these
concepts. They seemed to regard them as relevant to their own work, and they
recognized that more rigorous planning and design could improve service delivery
for disadvantaged citizens.

Activity 17.1 Study Visit on NGOs and
Vulnerable Citizens

Cooperating Organisation: Ministry of Civil Affairs
(MCA)

Activity Description

A six member delegation from MCA participated in the Study Visit to
Australia during the period 21 March -31 March 2011. The visit took place in two
jurisdictions, New South Wales and Victoria. During the visit the delegation met
with numerous NGOs and other relevant organisations that provide support for
vulnerable citizens. The main focus was on NGOs working in two sectors:
disability and women’s rights. The delegation had discussions with
approximately 20 organisations including the Australian Network on Disability,
Vision Australia, Mental Health Coordinating Council, Wirringa Baiya Aboriginal
Women’s Legal Service, Equal Opportunity for Women in the Workplace, Women
in Prisons Advocacy Network, and Domestic Violence
Victoria.

Key Outcomes

There were signs that this activity is likely to have a positive, albeit
modest, influence on future direction of MCA’s work in development of its
partnership approach, policy reform and regulatory processes in relation to
NGOs. The delegates stated in clear terms that the new insights gained from the
Study Visit would be incorporated into their on-going policy and program work,
particularly the exposure to NGO practices and initiatives affecting women and
people with disabilities.
For example, one of the key areas highlighted during the study visit was the
role of peak bodies in advocating for the rights of vulnerable citizens. This
clearly resonated with the delegation, who acknowledged the value of peak
bodies. This recognition is significant given that peak NGO bodies are largely
absent in China and the potential threat that the Chinese government might
perceive from large representative bodies.
As a result of this activity, MCA officials have also broadened their
horizons on some very important conceptual issues related to the human rights of
vulnerable citizens. They are better equipped to promote these concepts in areas
of legislation and policies as they relate to women and people with
disabilities. For example, one of the key issues impressed upon the delegation
was the importance of vulnerable citizens themselves being the drivers and key
decision makers in organisations affecting their rights. The delegation
specifically stated that this was an area they wish to improve, so that members
of target groups have more active roles in organisations representing their
interests.

Activity 18.1 Community Corrections Study
Visit

Cooperating Organisation: Ministry of Justice
(MOJ)

Activity Description

An eight member delegation from the MOJ visited Australia on 15-21 May 2011,
to examine community corrections programs in Australia. The delegation consisted
of officials from the central and provincial justice offices. The study visit
aimed to support a nationwide pilot program on community corrections being
administered by MOJ. The pilot is part a broader reform agenda of the Chinese
Government involving greater emphasis on non-custodial and community based
programs as more appropriate measures for dealing with minor offences than
detention and other harsh penalties. The study visit canvassed a wide range of
community based programs including home detention, community service orders,
suspended sentences, good behavior bonds and the system of probation and parole.
The delegation observed education, training, welfare and other programs aimed at
achieving effective rehabilitation of offenders. Particular attention was given
to vulnerable offenders and ensuring that their rights are
protected.

Key Outcomes

From its observation of the study visit and feedback from MOJ the AHRC
considers there are reasonable prospects that this activity will contribute to
long-term outcomes by assisting development of new policies and practices in
community corrections in China. The activity particularly provided new insights
on strategies for vulnerable offenders including women, juveniles and minorities
that, if implemented, will encourage better protection of their rights and
interests.
The fact that the study was directly, linked to a major reform initiative
currently being implemented across China increases the likelihood that it will
produce sustainable outcomes. China’s community corrections pilot was
established in 2003. In recent years however the pilot has expanded
exponentially and has developed into a permanent feature of the MOJ’s
corrections programs. Community corrections have now been rolled out across the
country, in all provinces and autonomous regions except for Tibet, where MOJ is
currently preparing to launch the program. A national Community Corrections
Office has been established within the MOJ to oversee the program and to date,
480,000 offenders have been sentenced to community corrections, with 250,000
released from the program so far.
It was evident that some of the delegates clearly had a good grasp of the
human rights implications of community based correctional programs. Moreover
they acknowledged the need for improvement of their own system and seemed
receptive to new ideas and approaches. They advised that where possible they
will aim to incorporate some elements of community corrections practice from NSW
into their reform programs. These include inviting members of the community to
become involved in the parole decision making process, working with local
departments and grassroots organisations to carry out community corrections,
introducing specific programs and facilities for women in the criminal justice
system, and establishing more detailed measures for oversight of community
corrections.

(ii) Outcomes from Earlier
Years of the China HRTC Program

Despite the inherent complexities in measuring human rights change, much of
which is long-term and not always easily quantifiable, it is possible to discern
positive changes in change in areas in which HRTC has worked.
Based on information gleaned in the management and monitoring of the
program, it is reasonable to conclude that HRTC has played a part in helping
make human rights more prominent in public discourse and debate. It has
assisted in bringing human rights further into the “comfort zone” of
senior officials as well as in raising awareness in the broader public arena.
By assisting citizens to become more aware of their rights and officials more
conscious of their obligations in protecting those rights, the program is
contributing to the development of greater accountability in government
processes in China.
In terms of outcomes, one of the strengths of the HRTC program is the fact
that it strongly aligns itself with the human rights priorities of the Chinese
Government. The program supports major policy and legislative reforms being
pursued by PRC authorities. This alignment helps give HRTC activities momentum
and sustainability, and increases the likelihood that activities will contribute
to concrete outcomes, by “riding the wave” of existing Government
reform initiatives.
In addition to these fairly general observations, evaluation case studies
have also revealed more specific examples of outcomes from HRTC activities. In
recent years the Commission has undertaken case studies in cooperation with a
number of the Chinese partner agencies including the All China Women’s
Federation, the Ministry of Justice, the National Judges’ College, the
National Population and Family Planning Commission, and the Supreme
People’s Court. The studies sought to assess outcomes from selected
earlier activities implemented under HRTC. Essentially this involved
identification of positive changes and developments in areas relevant to those
HRTC activities, where there was evidence to suggest that HRTC had made some
contribution to those changes. It should be emphasised that there is no
suggestion that HRTC is the sole or predominant factor responsible for the
changes identified in the case studies. The role of HRTC relative to other
factors should not be over-stated. However, information gleaned during these
studies supports the view that the program has made a modest but worthwhile
contribution to these developments.
Relevant changes highlighted by the cases studies are listed below.
In terms of new law and regulation:
- amendments to the Law on the Protection of Minors, including new
  provisions prohibiting domestic violence against
  minors
- guidelines on combating domestic violence setting out the responsibilities
  of different Ministries and agencies in combating domestic
  violence
- the inclusion of national domestic violence legislation as part of the
  current five year legislation plan
- the promulgation by 25 provinces, autonomous regions and provincial level
  municipalities, of their own local regulations on domestic
  violence
- the amendment, by 18 provinces, regions and municipalities, of their methods
  of
- mplementation of the Law on the Protection of the Rights and Interests
  of Women, adding provisions on domestic violence in accordance with the
  revisions to the Women’s Law
- the promulgation of new Regulations on the Protection of the Rights of
  Women by the Xinjiang Autonomous Region Standing Committee
- coming into force of several amendments to the Xinjiang regional family
  planning regulations in recent years reflecting new national level policies.
  These include a 2006 amendment which removed obligatory birth spacing
  requirements and revisions to ensure that regulations focus on providing
  incentives and rewarding families who practise family planning (as opposed to
  coercive measures)
- development of national standards for protecting client privacy and
  confidentiality in family planning and reproductive health services

In terms of new policy and practice:
- the creation of a new domestic violence category for case management by
  public security bureaus
- the establishment by public security bureaus in most provinces of their own
  anti-domestic violence emergency hotlines
- the establishment by 5000 public security bureaus across the country of
  complaint handling centres to receive domestic violence
  complaints
- the establishment by the Beijing Women’s Federation of a total of 800
  legal aid centres for women across the municipality
- the creation of specialist legal aid centres for women within the legal aid
  offices of local justice departments
- the development of a website with details of the HRTC supported pilot
  program: ‘Protecting Women’s Reproductive Health Rights in Central
  and Western China Program’ incorporating materials such as the
  international human rights instruments as well as laws, legislation and
  policies, ‘rights protection channels’ and details of each of the
  activities which have been carried out under the cooperation
  program
- the establishment of family planning complaints hotlines in the pilot
  counties whose success has led to the development of a plan to establish
  complaints hotlines nationally
- the completion by the National Population and Family Planning Commission of
  a future planning and directions document which will guide further development
  of policy and practice to address 5 key human rights related
  issues
- the establishment in Xinjiang Autonomous Region of 517 service centres in
  townships which provide family planning services free of charge
- the creation, by the Xinjiang Family Planning Commission, of individual,
  private counselling rooms to protect privacy and the elimination of the large
  open rooms in which privacy was protected only via
  ‘whispering’
- the provision of family planning counselling services in minority
  languages
- the development and distribution of information pamphlets, in minority
  languages aimed at advising people about their reproductive health rights, and
  the channels available to them to protect their rights
- the establishment of a family planning service complaints hotline accessible
  throughout Xinjiang Autonomous Region
- a series of information and education campaigns in Xinjiang’s Kuche
  County (and apparently other counties) designed to provide information to
  communities about their reproductive health rights, and how they can ensure
  these are protected via the complaints system
- the development of a handbook on the protection of prisoners’ rights,
  which has been an important reference for courses delivered to prison
  staff
- a shift from traditional prison management approaches that emphasise
  isolation from the community and other harsh measures, to approaches that
  emphasise rehabilitation and skill development, maximize contact with the wider
  community and encourage effective reintegration into mainstream society
  following release
- the implementation of a community corrections pilot program in six
  provinces, under the joint agreement and authority of four agencies: Ministry of
  Justice, the Supreme People’s Court, Supreme People’s Procuratorate
  and Ministry of Public Security. By September 2006, the pilot had been extended
  to cover 85 cities and 375 counties in 18 provinces, involving approximately
  72,000 offenders.
- creation of a compulsory human rights training component for all judges
  undertaking programs at the National Judges College
- development and introduction of a menu of courses on specific human rights
  topics at the National Judges’ College
- the development of a database of online course material at the National
  Judges’ College, including resources on human rights, incorporating much
  of the information collected from HRTC activities
- Implementation of a pilot program in the court system in Chengdu, Sichuan
  Province, eliminating the criminal records of certain categories of juvenile
  offenders
- Issuing of a decree by the High Court of Jiangsu Province in 2009
  formalising school education requirements for juveniles in detention
  centres.

In terms of new demand:
- the study of statistics gathered by the All China Women’s Federation
  indicates that nationally the number of domestic violence cases generally is
  decreasing while the number of reported cases and cases in which the victim
  sought help is increasing
- the development, by the Beijing Women’s Federation of cards, paintings
  and posters which promote anti-domestic violence messages and information on the
  domestic violence related amendments to China’s Marriage Law. Ten
  different posters on this theme have been put up in buses around
  Beijing.
- the establishment of domestic violence and legal aid services in and around
  Beijing, the use of which has consistently increased since they were
  established. The Beijing Women’s Federation concludes that this is
  because of an increase in the number of women who knew about the services and
  felt confident that they would receive help through the
  services.
- the establishment, by the Centre for Women and Children’s Health of an
  active screening program to identify victims of domestic violence accompanied by
  a system of referral of apparent victims to women’s federations and other
  agencies for assistance
- the establishment of about 160 domestic violence hotlines across Xinjiang,
  including in the large cities as well as grassroots and rural
  areas
- the distribution of leaflets and pamphlets in native ethnic languages with
  information about domestic violence and women’s rights
- the increased attendance at clinics by Muslim and other ethnic nationalities
  as a result of more culturally sensitive delivery of services
- the development and delivery of target-specific human rights training:
  training for managers includes human rights information, whereas training to
  clients and the masses is mainly information about what their rights are under
  the law and what avenues are available to them to assert these rights and to
  lodge complaints
- the distribution of 70,000 brochures and publications throughout Kuche
  county on reproductive healthy rights and quality of care in family planning
  services.

(c) Vietnam-Australia
Human Rights Technical Cooperation Program

The Commission is pleased with the level of progress that has been made to
date in the Vietnam HRTC program. The partner organisations are very
enthusiastic about their participation in the program and most are performing to
a high standard.
As a general rule, changes in this area require the passage of time and as
such are normally identified through longer term monitoring and evaluation
strategies. As the Vietnam HRTC is still young, having commenced in 2006, the
outcomes described below are encouraging, but not yet in the form of concrete
improvements in human rights protection attributable to the HRTC program. It
starts from analyzing the extent to which the partner agencies have increased
their capacity to produce such change. We will need to conduct longer term
studies to ascertain the extent to which such change is realized.
Most of the partner agencies of the program participate in a regular human
rights dialogue between Vietnam and Australia. The programs’ activities
described below build on and learn lessons from similar activities in previous
phases of the program. For example activities with Vietnam’s Supreme
People’s Court in Phase 1 (2006-2008) involved a general examination of
access to justice and application of human rights principles at all levels of
the Vietnamese court system. Building on information transferred during previous
phases, phases 2 and 3 moved to a more specific focus to ensure practical access
to justice for particular disadvantaged groups including victims of crime, women
and children, ethnic minorities and persons with disabilities.
Within this context, some key outcomes from the program are:
- Improved understanding of some important human rights issues by the
  Australian and Vietnam participants in the bilateral Human Rights Dialogue,
  enhancing the quality of discussions during the
  Dialogue;
- Improved information and education programs at grass roots and local level.
  This was achieved through training of ‘legal dissemination
  officials’ who work in justice departments at grass roots and local
  level;
- Improved access to justice for vulnerable and disadvantaged groups with
  particular focus on ethnic minorities and people with disabilities. This was
  done by educating provincial and district level judges and court staff on
  relevant level judges and court staff on relevant legal procedures to
  accommodate the needs of these groups. This includes access to interpreters and
  other services to ensure full participation in and access to judicial
  processes;
- Improved access to justice for ethnic minority communities in six provinces
  by educating village leaders on citizens’ legal rights;
- Improved access to legal and health insurance services for women in five
  targeted provinces by educating them on their rights to access these
  services;
- Improved access to justice for criminal offenders by educating prosecutors
  at local levels on practical measures to ensure the right to a fair trial,
  equality before the law, presumption of innocence, trial without undue delay,
  the right to be informed of and have the opportunity to defend charges, the
  opportunity to examine witnesses and rights of appeal and review;
  and
- Improved capacity of Vietnamese agencies to implement international and
  domestic human rights commitments by exchanging ideas with Australian
  peers.

The following is a summary of outcomes from a sample of completed activities
of Phases 2 and 3 of the HRTC Program. The allocated budget for each activity is
also noted. In this way, it is hoped that the document gives some indication of
‘value for money’ from the program’s activities, to the extent
that that is possible in a short summary of this type.

Activities
3.1-3.4 – Phase 2: Legal Dissemination Seminars

Cooperating Organisation: Ministry of Justice
The four legal dissemination seminars were held in
- Sa Pa, 16-17 October 2008;
- Quy Nhon, 21-22 October 2008;
- Buon Me Thuot, 23-24 March 2009; and
- Ca Mau, 2-3 April 2009.

Activity Descriptions

The seminars provided training to approximately 330 officials from 10
provinces. The officials were mostly representatives from provincial departments
of justice. The seminars gave the participants new insights relevant to their
work in disseminating information about legal rights and responsibilities. As a
result of this activity, participants are better informed about i) Civil rights
of citizens, as set out in the Civil Code of Vietnam (205); ii) Complaint and
denunciation rights, as set out in the Law on Complaints and Denunciations of
Vietnam (1998), iii) Methodologies for education and dissemination about legal
rights.

Key Outcomes

The Outcomes from this activity are of a type that can be realised
immediately through the ongoing work of justice officials in conducting more
effective information and education programs at grassroots and local level. The
achievements were made more significant by the fact that the seminars were
located in areas of high need, where residents include a high proportion of
socially disadvantaged minority groups.

Activities 2.3 and 2.4:
Legal Dissemination Training for Ethnic Minorities

Cooperating Organisation: Ministry of Justice (MOJ)

Activity Descriptions

The two two-day training courses on legal dissemination were held in Lam
Dong and Dien Bien Provinces on 5-6 August 2010 and 14-15 November 2010
respectively.
The courses were attended by 206 village leaders in ethnic minority
communities and local justice officials, whose responsibilities include
awareness raising for members of local communities about their rights and
responsibilities under Vietnamese law.
As with the abovementioned courses for socio-political organisations, the
training covered substantive knowledge about Vietnamese laws affecting rights
and responsibilities of citizens. In addition, the training addressed skills and
methodologies needed in order to conduct effective education and information
programs at grass roots level.

Key Outcomes

The training covered similar topics to those addressed in the courses for
socio-political organisations i.e. knowledge of Vietnamese laws dealing with
citizens’ rights (rights of citizens to lodge complaints and
denunciations, laws guaranteeing democracy at local level, and procedures for
resolution of land disputes affecting citizens’ property rights) and
skills/techniques for disseminating that knowledge in grass-roots
communities.
The principal outcome from these two courses was that leaders of ethnic
minority communities and local justice officials in six provinces are better
equipped to disseminate information to citizens about their legal rights and
responsibilities under Vietnamese law. Their performance of this role should be
enhanced by the new knowledge they have gained about substantive Vietnamese laws
and skills they have acquired in practical methodologies for legal dissemination
and education. The application of the new knowledge should, in the longer term,
contribute to greater awareness and understanding by ethnic minorities of their
legal rights, which should in turn lead to strengthened protection and promotion
of their rights.

Activities 4.1 and 4.3: Seminars on Access to
Justice

Cooperating Organisation: Supreme People’s Court
(SPC)

Activity Descriptions

The two Seminars on Access to Justice were conducted back-to-back with the
first seminar held in Hanoi (activity 4.1) on 11-12 October 2010 and the second
seminar held in Ho Chi Minh City (activity 4.3) on 14-15 October 2010.
The seminars provided training to approximately 55 judges and officials from
Vietnam’s court system. Broad representation from surrounding provinces
was also a feature of the activities with around 20 Northern provinces
represented at the Hanoi seminar and 17 Southern provinces represented at the Ho
Chi Minh City seminar. Australian presenters included representatives of the
Office of the NSW Director of Public Prosecutions and the Aboriginal Legal
Service of WA.
The objective of these seminars was to strengthen the knowledge of
Vietnamese judges and officials from central SPC and lower level courts in
relation to the protection of human rights in the judicial system. The content
included a particular focus on access to justice for ethnic minorities and
people with disabilities.

Key Outcomes

As a result of these activities, the Supreme People’s Court and
provincial courts are better equipped to ensure access to justice for citizens
involved in judicial processes, particularly members of vulnerable and
disadvantaged groups.
The seminars provided important capacity building for participants through
the provision of new information on international human rights standards and
principles relevant to the justice process, including fundamental guarantees of
the right to a fair trial and the requirements of natural justice and due
process in the judicial system. These principles were discussed in the context
of Vietnam’s court system and the daily work of judges and court
officials, including in the application of Vietnam’s Criminal and Civil
Procedure Codes and other relevant legislation and procedural rules and
guidelines.
The seminars provided particular insights into how these principles can be
applied to making access to justice as a reality for certain vulnerable and
disadvantaged groups, especially for ethnic minorities and people with
disabilities. This included laws, rules and procedures to accommodate the needs
of these groups, measures such as court support, interpreters, culturally and
linguistically accessible court information, and other services to ensure full
participation in and access to judicial processes.
In terms of human rights protections and enhancing access to justice for
ethnic minorities and people with a disability, the seminars were very useful in
highlighting major problems and barriers they face. Despite the differences
between the judicial systems of Australia (adversarial) and Vietnam
(inquisitorial), participants felt there was a lot of common ground and that the
Australian material was useful in advancing Vietnam’s judicial reform
priorities. In terms of impact, there is likelihood that some of the protections
canvassed at the seminars will feed into the reform of the Criminal Procedure
Code which is currently taking place.

Activities 5.1 and 5.2:
Seminars on Human Rights in Criminal Justice

Cooperating Organisation: Supreme People’s Prosecution Service
(SPP)

Activity Descriptions

The two Human Rights in Criminal Justice Seminars were conducted
back-to-back with the first seminar held in Hanoi (activity 5.1) on 18-19 March
2010 and the second seminar held in Ho Chi Minh City (activity 5.2) on 22-23
March 2010.
The seminars were attended by approximately 110 participants (70 in Hanoi
and 40 in Ho Chi Minh City). In addition to SPP officials, participants included
representatives of the Ministry of Justice, the Ministry of Foreign Affairs, the
Ministry of Public Security and the Supreme People’s Court.
The seminars examined the application of fundamental human rights principles
in the criminal justice system. These included the right to a fair trial,
equality before the law, presumption of innocence, trial without undue delay,
the right to be informed of and have the opportunity to defend charges, the
opportunity to examine witnesses and rights of appeal and review. In particular,
the fundamental nature of these principles was emphasised, including derogation
only in exceptional circumstances as stipulated by the International Covenant
on Civil and Political Rights.

Key Outcomes

The current review of Vietnam’s Criminal Procedure Code represents an avenue for these activities to feed into ongoing reforms and
produce sustainable outcomes. The two seminars were very focussed on the current
review of the Vietnam Criminal Procedure Code and the ways in which the
Code could be amended in order to enhance human rights protections within the
Vietnamese criminal justice system. It was clear from the discussions and
presentations that the review and drafting of an amended Code was well under way
(although the expected date for completion of the draft was given as 2015). The
Commission was very impressed by the way the SPP maximised the opportunity
presented by the seminars to explore in detail the potential improvements to the
Code.
A number of specific provisions for strengthening the Criminal Procedure
Code were discussed. These included the right to silence for accused, the
right of defence counsel to access the prosecution evidence/case material, the
right to plea bargain, and stipulation of time limits for detention of suspects.
In addition to canvassing specific recommendations for change to the revised
Code, the seminar also considered other possible changes in policy and practice
to strengthen human rights protection in the criminal justice system. These
included:
- Consultation with defence counsel – the current practice of allowing
  defence counsel just one hour in which to meet with their client following
  arrest and pre-trial, and in circumstances where a prosecution official is
  always present, was viewed as entirely inappropriate by defence lawyers in the
  seminars, who lobbied strongly for change in this
  area.
- Admissibility of confessions – concerns were raised about the value
  and legitimacy of confessions that were not obtained either in the presence of
  an independent third party or in a recorded interview. The Vietnamese experts
  noted that it would be some time before Vietnam would be in a position to have
  sophisticated recording equipment available in each province and, a
  recommendation was made that, in the meantime, confessions only be admissible if
  made in the presence of defence counsel.
- Defence representation – it was noted that around only 20 per cent of
  defendants are represented in court by defence counsel. This appeared to be
  something the SPP was keen to see change, as they mentioned the need for more
  lawyers to be trained in the coming years to help address this problem.
- Review of prosecution guidelines – the current SPP prosecution
  guidelines are also being reviewed under the reform program. The SPP remarked
  that they would be looking to the NSW Prosecution Guidelines for direction in
  their review.

Activity 7.2 Establishment of Women’s
Legal Clubs

Cooperating Organisation: Vietnam Women’s Union
(VWU)

Activity Description

This activity assisted in the establishment of 18 ‘women’s legal
clubs’ in three target provinces of Vietnam: Bac Ninh, Quang Binh, and
Vinh Long. These clubs will have the role of disseminating information on
women’s human rights and women’s rights under Vietnamese law and
providing legal advice and consultation to women and advocacy for women’s
rights in the local community.
The activity establishing the legal clubs included a one-day training course
in each province for officials and staff of each of the 6 clubs. The trainees
were all people who have responsibilities for managing the club and carrying out
club activities. The activity also involved the provision of resources and
materials for use by the clubs, including copies of Vietnamese laws, legal texts
and other relevant training materials and resources and equipment such as
loudspeakers for use in training and dissemination activities.
The training course in Bac Ninh Province was held on 10 June 2010, in Quang
Binh on 15 July 2010 and in Vinh Long on 15 August 2010. There were 90
participants in total (30 at each training course). The participants were made
up of the management board for each newly established club. The training
provided the management boards of the clubs with information and guidance on the
running of the clubs and implementing projects for women in their respective
communities.

Key Outcomes

It is difficult to make definitive claims about the outcomes from the legal
clubs as they are only newly established. However, the AHRC considers it likely
that they will achieve outcomes towards greater awareness of women’s
rights in local communities and enhanced ability on the part of women to assert
and exercise their rights. Reasons for this optimism include the fact that the
legal club model appears to have very strong support within the VWU and its
nationwide network.
Feedback from the Vietnamese participants supports the conclusion that the
activity was a success. Their feedback noted that the training was considered
practical and relevant to their work. This is very positive, as it indicates a
high likelihood that they will use the information and knowledge and that it
will be integrated into the ongoing operation of the clubs.
In population terms, there is potential for the clubs to achieve an
extremely wide impact in reaching households and families at grassroots level.
However, this will depend on many factors including how accessible they are to
local communities and how dynamic the personnel responsible for the clubs are.
There may be value in conducting a review or assessment of the legal clubs,
after sufficient time has elapsed for them to establish a reasonable track
record of activities. This would enable a more informed assessment of the
outcomes from this activity, and the effectiveness of the legal club model
generally.
We have very recently been advised that in November 2010 the VWU established
legal clubs in another six provinces with their own budget based on the model
supported by the program.

^[1] This was adopted at the
19^th meeting of the Standing Committee of the Eleventh National
People’s Conference of the People’s Republic of China on February
25^th, 2011.

Search

Inquiry into Australia’s Human Rights Dialogues with China and Vietnam (2011)

Inquiry into Australia’s Human Rights Dialogues with China and Vietnam

Australian Human Rights Commission Submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade – Human Rights Sub-Committee

Table
of contents

1 Introduction and
Background

(a) Attendance at
Dialogues

(b) Preparation of
Briefing

(c) Technical Cooperation
Programs with China and Vietnam

2 Response to the Terms
of Reference

2.1 Involvement of
Non-Government Organisations

2.2 Monitoring and
Evaluation of Outcomes

(a) General
Observations

(b) China-Australia
Human Rights Technical Cooperation Program

(i) Outcomes from
Activities of the 2010-2011 China HRTC Program

(ii) Outcomes from Earlier
Years of the China HRTC Program

(c) Vietnam-Australia
Human Rights Technical Cooperation Program

Search

Inquiry into Australia’s Human Rights Dialogues with China and Vietnam (2011)

Inquiry into Australia’s Human Rights Dialogues with China and Vietnam

Australian Human Rights Commission Submission to the Joint Standing Committee on Foreign Affairs, Defence and Trade – Human Rights Sub-Committee

Table of contents

1 Introduction and Background

(a) Attendance at Dialogues

(b) Preparation of Briefing

(c) Technical Cooperation Programs with China and Vietnam

2 Response to the Terms of Reference

2.1 Involvement of Non-Government Organisations

2.2 Monitoring and Evaluation of Outcomes

(a) General Observations

(b) China-Australia Human Rights Technical Cooperation Program

(i) Outcomes from Activities of the 2010-2011 China HRTC Program

(ii) Outcomes from Earlier Years of the China HRTC Program

(c) Vietnam-Australia Human Rights Technical Cooperation Program

Table
of contents

1 Introduction and
Background

(a) Attendance at
Dialogues

(b) Preparation of
Briefing

(c) Technical Cooperation
Programs with China and Vietnam

2 Response to the Terms
of Reference

2.1 Involvement of
Non-Government Organisations

2.2 Monitoring and
Evaluation of Outcomes

(a) General
Observations

(b) China-Australia
Human Rights Technical Cooperation Program

(i) Outcomes from
Activities of the 2010-2011 China HRTC Program

(ii) Outcomes from Earlier
Years of the China HRTC Program

(c) Vietnam-Australia
Human Rights Technical Cooperation Program