Media Contact: please contact Matt Mitchell on 0431 980 365 or media@alhr.org.au

Thematic Federal Report Cards

Refugee Rights – Overall Grade F

Australian Lawyers for Human Rights remains alarmed about Australia’s approach to refugees and people seeking asylum. While its Refugee Rights Subcommittee welcomes a number of positive developments in 2017 — including Australia’s election to the Human Rights Council and the ratification of the Optional Protocol to the Convention Against Torture (OPCAT) — significant and urgent reform is necessary in order for Australia to meet its international obligations and begin to repair its international reputation.

New Lows for offshore processing

The Australian-made humanitarian crisis that has unfolded on Manus Island in 2017 has represented a new low in Australia’s refugee policies. ALHR calls upon the government to take immediate steps to find durable solutions for those on Nauru and Manus Island. While the US resettlement deal will provide a solution for some, genuine solutions must be made available to all refugees subject to the offshore processing policy as a matter of urgency. This should include pursuing all available options, including resettlement to Australia and taking up New Zealand’s offer to resettle 150 refugees.

ALHR considers that detention monitoring mechanisms under the OPCAT must extend to facilities that are utilised as part of Australia’s offshore processing policy. In light of overwhelming evidence of human rights abuses and dysfunction on both Manus and Nauru, it is imperative that these facilities be subject to regular monitoring.

 Unfairness in the “Fast Track Process”

ALHR is concerned about the process for assessing the status of those who arrived in Australia by boat between August 2012 and January 2014 and were not sent to Nauru or Manus Island. These asylum seekers have been invited to apply for a temporary protection visa or a safe haven enterprise visa and processing of these applications continues. Those who are successful are condemned to the uncertainty of only to short-term protection and are permanently dislocated them family members overseas. Further, the Government’s far-reaching withdrawal of legal assistance has had a dramatic impact on the fairness and integrity of the application process. ALHR remains particularly concerned about the legal framework for merits review by the Immigration Assessment Authority, which involves decisions being made on the papers without the opportunity for applicants to be heard or present new evidence. In ALHR’s view, this process gives rise to a substantial risk of incorrect decisions, leading to violations of the international prohibition on refoulement.

ALHR calls upon the government to ensure that people seeking asylum have adequate access to legal and social support throughout the duration of the assessment of their protection status. Under no circumstances should asylum seekers be forcibly repatriated to their country of origin without a proper assessment of their protection claims.

Boat turnbacks continue

Although a lack of transparency has protected the issue from public scrutiny, the Australian government’s policy of intercepting the vessels of people seeking asylum in Australia continues to undermine Australia’s compliance with its international legal obligations. Where people have successfully reached Australian territory to claim refugee status, they have been returned without access to Australia’s formal refugee status determination procedures in circumstances plainly inconsistent with international standards.

Poor progress on regional cooperation

Despite numerous recommendations, little progress has been made on towards the creation of a regional cooperation framework that would help to manage asylum and refugee flows within the region. ALHR urges the Australian government to explore working cooperatively with our neighbours in the region with a view to increasing protection capacity and resettlement opportunities. Contrary to the offshore processing policy, and its objectives of deterrence and deflection; regional cooperation should be focussed on enhancing and expanding the protection.

Proposed citizenship changes

ALHR is deeply concern with the government’s attempt to amend to the Citizenship Act 2007 (Cth). If passed, the proposed changes — including longer waiting periods on permanent residency and more stringent English criteria — would have it extremely difficult for refugees and humanitarian entrants to obtain citizenship. ALHR reiterates that citizenship law and policy should be inclusive and not used as a means to exclude refugees from obtaining formal membership of Australian society.

Freedoms – Overall Grade F

ALHR Freedoms Subcommittee remains concerned about the Australian Government’s approach to the human rights of both citizens and non-citizens under its care and control. The Subcommittee agrees that in this, as in other thematic areas, current policies violate principles of international law and drastic reform is needed to bring Australia into line with its international obligations. The Federal Government has continued to introduce a stream of legislation which unnecessarily infringes upon civil liberties and other human rights, often in the name of national security. It has also repeatedly demonstrated a willingness to enshrine religious discrimination in the name of “freedom of religion”. Sad to say, in general only the minority parties appear willing to oppose the government on its human rights infringements.[1]

Freedom of thought, conscience, religion or belief

Both in the Marriage Equality debates and in other contexts, Federal Parliamentarians including the Attorney General displayed both a lack of understanding of the manner in which human rights must be viewed as a whole and balanced against each other, and a willingness to enshrine religious discrimination in the name of “freedom of religion”. Parliamentarians also demonstrated a lack of understanding that the right to “freedom of religion” encompasses agnosticism, atheism, secularism and other systems of belief, stemming both from the right’s full title as “freedom of thought, conscience, religion or belief” and from interpretations made by human rights courts internationally and particularly in Europe. Logically, freedom of something includes freedom from that thing. Any other interpretation would mean that “freedom of religion” actually means compulsory religion.

Further attacks on human rights of refugees

Proposed amendments to the Commonwealth Migration Act[2]severely impact the human rights of refuge- seekers. The amendments allow dog searches, strip searches and warrantless searches, and allow the Minister to prohibit any item within immigration detention centres if the Minister determines that it might be a risk to health, safety, security or order. The explanatory memorandum contemplates that in practice this power could be used to deprive immigration centre detainees of even their mobile phones, SIM cards, computers, electronic devices, and even their medications or health supplements.

Increases in surveillance /invasions of privacy, diminution in protections

Today, digital rights of free and private communication are essential in order that all human rights can be protected and realised.[3] Indeed many countries have expressed internet access to be a national right. However, digital rights are increasingly restricted by governments, including Australia, in the name of national security. There have been over 66 pieces of counter-terrorism legislation passed in Australia between 2011 and 2017,[4] with negative consequences for our digital privacy.

Despite the Australian Government claiming that the mandatory data retention scheme was purely a targeted and proportional response to perceived security threats and in no way related to civil litigation, the government then asked for public submissions as to what impact there would be if parties were unable to access such data for civil litigation proceedings. Fortunately to date no further action to enable access to the mandatory data retention scheme has been taken.

In 2014 the Australian Law Reform Commission made extensive recommendations in a document of over 300 pages for the introduction of a Commonwealth statutory civil cause of action for serious invasions of privacy, including digital privacy, following from three earlier enquiries which had supported this reform. [5] The recommendations have not to date been implemented.

As has been pointed out in online journal Crikey[6], “the government’s new National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, under the cover of expanding laws to address foreign interference, has radically expanded the capacity of the government to prosecute officials who reveal even unclassified information, under the pretence that it could be “espionage”. If this frightening bill becomes law, even the revelation of the most anodyne information will be treated as spying by the government, incurring long jail sentences. And anyone deemed to have “solicited” or “procured” such information — whether lawyer, or journalist, or even politician — will also be jailed.

Undermining of democratic comment and free speech

The federal government has continued to politically attack and underfund a number of government institutions that provide democratic checks and balances within the Australian system. It has appointed a charities commissioner who is critical of advocacy by charities[7], and has proposed legislation to restrict advocacy by charities and to ban foreign donations to advocacy NGOs, while corporate lobbyists are untouched[8]. It has also commenced a Senate Inquiry into changes to the requirements for tax-deductible donation status for charities. As Michael West says, “The government’s jihad on charities is an assault on free speech whose impact is already felt. It is a slight on democracy, and, even if it can be justified purely from a taxpayer point of view, does not stack up when it comes to the double standard of allowing tax breaks for multinational corporations and their advocacy.”[9]

The federal government has also proposed legislation which will unreasonably restrict political satire with potential penalties of up to five years imprisonment.[10] Television shows like Clarke & Dawe, Mad as Hell, The Chaser and online content like The Juice Media’s “Honest Government Ads” are a potent expression of the free spirit of Australia and our democracy. They should not be traded away so carelessly by overreaching and poorly drafted legislation such as the proposed Bill.

In addition, the political and managerial attacks on the ABC, and defunding of the ABC and SBS, pointed to last year have continued and make it harder for Australians to obtain factual information on which to base their political views and voting decisions.

Continued attacks on the vulnerable

The federal government’s “robo debt” programme has been continued by Centrelink despite extensive evidence that most of the debts claimed by Centrelink are not owed at all. This programme constitutes an attack on the civil liberties and civil rights of vulnerable people and its continuation is a national disgrace.

Encouragement of LGBTI vilification

While Marriage Equality legislation finally passed the Federal Parliament, LGBTI vilification was encouraged by the whole process implemented, and by the many legislative amendments which were sought by Federal Government members in order to allow religious restrictions to be imposed on others (described further in the LGBTI Subcommittee Report card).

Positive progress

A data breach notification scheme is being introduced from February 2018; however it will cover only entities which are already subject to the Privacy Act 1988[11]. The Privacy Act does not address surveillance, which is permitted for law enforcement agencies under various legislation.[12] Nor does it apply to Commonwealth intelligence agencies[13] or State or Territory government agencies such as the NSW Police Force. [14]

Even where the Privacy Act does cover law enforcement agencies, there are many exemptions. An entity covered by the Act can only use or disclose personal information for the purpose for which it was collected (the ‘primary purpose’) unless an exception applies, in which case the entity can also use or disclose that information for secondary purpose(s) (which need not be directly related). There are many exemptions upon which police and security forces can rely.

[1]             See for example Bernard Keane, “Widening terror laws allows government to pursue non-terrorist enemies”, Crikey 9 October 2017, Bernard Keane, “Keane: no politician has the spine to stand up to Australia’s intelligence state” Crikey 21 December 2017, www.crikey.com.au

[2]Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2017 – see https://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r5971

[3]             Association for Progressive Communications, https://www.apc.org/en/pubs/about-apc/apc-internet-rights-charter.

[4]             George Williams and Daniel Reynolds, A Charter of Rights for Australia, UNSW Press, Sydney, 2017, p 37.

[5]             Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (Report 123, 2014), https://www.alrc.gov.au/publications/serious-invasions-privacy-digital-era-alrc-report-123, par 1.17.

[6]             Bernard Keane, “Keane: no politician has the spine to stand up to Australia’s intelligence state”, Crikey, 21 December 2017, www.crikey.com.au

[7]             Anna Henderson, “Government accused of trying to ‘silence’ charity sector with new commissioner”, ABC News website, 7 December 2017, http://www.abc.net.au/news/2017-12-07/governments-new-charity-commissioner-will-silence-the-sector/9237432

[8]Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017, amending the Commonwealth Electoral Act.

[9]             14 November 2017, “Corporate lobby in clover, charities SLAPPED“, https://www.michaelwest.com.au/19282-2/

[10]Criminal Code Amendment (Impersonating a Commonwealth Body) Bill 2017

[11]           “What is the Notifiable Data Breaches scheme?” Office of the Australian Information Commissioner at https://www.oaic.gov.au/privacy-law/privacy-act/notifiable-data-breaches-scheme”

[12]           The States have their own legislation. Relevant Commonwealth legislation includes: Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (‘TIA Act’) (relating to data retention obligations), the Telecommunications Act 1997, the Intelligence Services Act 2001, the Surveillance Devices Act 2004 and the Australian Federal Police Act 1979 (Cth), s 60A(2) of which allows federal police recording and retaining of personal information. The AFP is legally permitted to collect facial images where it is ‘reasonably necessary to fulfil its policing functions’ and share them when it is ‘reasonably necessary for law enforcement purposes’ Attorney-General’s Department (Cth), ‘Face Matching Services’ (Fact Sheet) 3 <https://www.ag.gov.au/ RightsAndProtections/IdentitySecurity/Documents/Fact-Sheet-National-Facial-Biometric-Matching- Capability.pdf>.

[13]           Not covered are: the Office of National Assessments, the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Australian Signals Directorate, the Defence Intelligence Organisation, the Australian Geospatial-Intelligence Organisation. Office of the Australian Information Commissioner, “Which law enforcement agencies are covered by the Privacy Act?” at https://www.oaic.gov.au/individuals/faqs-for-individuals/law-enforcement-surveillance-photos/resources-on-law-enforcement.

[14]           Office of the Australian Information Commissioner, “Which law enforcement agencies are covered by the Privacy Act?” at https://www.oaic.gov.au/individuals/faqs-for-individuals/law-enforcement-surveillance-photos/resources-on-law-enforcement. It should be noted that the Australian Government Agencies Privacy Code (available at https://www.oaic.gov.au/privacy-law/privacy-registers/privacy-codes/privacy-australian-government-agencies-governance-app-code-2017) was registered on 27 October 2017 and comes into effect on 1 July 2018. It is a relatively short document which sets out specific requirements for government agencies to which the Privacy Act applies to assist them in adopting a best practice approach to privacy governance.

 

Indigenous Rights – Overall Grade F-

Indigenous Australians continue to experience racism and ongoing discriminatory outcomes in the enjoyment of many civil, political, economic, social and cultural rights. There is no hiding from the fact that in their daily lives Aboriginal and Torres Strait Islander peoples suffer unequal human rights treatment and outcomes.

in 2017 The Federal government has made little progress on the inequality in outcomes for health, housing, education and life expectancy, ongoing issues relating to policing and imprisonment, public space laws and native title.

In November  the United Nations Committee on the Elimination of Racial Discrimination (CERD) began its two-day review of Australia, asking government representatives to explain their progress in promoting racial equality and tackling racism. In 2010 when the CERD last reviewed Australia’s record, the 21 recommendations made included action by the Australian government toward the recognition of Aboriginal and Torres Strait Islanders as First Nations Peoples and addressing Indigenous contact with the criminal justice system.

As detailed in the Australian NGO Coalition Submission to the CERD, Australia has regressed in a number of areas, or has failed to take steps towards progressing Indigenous rights:

 Rejection of the Uluru Statement

Prime Minister Malcolm Turnbull’s decision to rule out an Indigenous ‘Voice to Parliament’, (as proposed in the Referendum Council’s “Uluru Statement from the Heart”) as “not desirable”, is erroneous and misconceived. ALHR calls on the government to reconsider this misguided position and instead embrace the historic opportunity for substantive reform in Australian race-relations, closing the gap on indigenous disadvantage and repairing the damage wreaked by decades of dispossession and rights-violations. The extensive consultations undertaken around Australia by the Referendum Council demonstrate that a minimalist model, for example, ‘recognition’ of Indigenous peoples as Australia’s First Peoples in the Constitution, is not widely desired among Aboriginal and Torres Strait Islander communities. Rather, as the Referendum Council noted, Indigenous people and communities called repeatedly for more substantial and meaningful Constitutional reform. The proposed Voice to Parliament would consult with government on legislation and policy relating to Indigenous peoples in an innovative and positive pathway forward for a united nation.

The Australian people want the government to take leadership on these important and complex issues rather than backtracking again and again. This nation needs imagination and innovation when it comes to dealing with reconciliation. The government’s position is to focus on purely symbolic efforts. These will never meet the indispensable goals of truth-telling, restorative justice, acknowledgment of continuing Indigenous sovereignty, or gaining the free and informed consent of Indigenous peoples for decisions relating to their lives and communities. The Uluru Statement is a historic opportunity to honour Australian indigenous peoples with empowerment, esteem and self-determination to finally forge forward in building a unified, egalitarian and fair Australia.

Having established the Referendum Council, the government is obliged to listen and hear the voices of Aboriginal and Torres Strait Islander peoples around Australia. ALHR calls on the government to show leadership in building upon the aspirations of Indigenous peoples and sharing with the wider Australian community the value that will be gained for our society by engaging in a meaningful process of listening, learning and agreement-making.

National Action following Royal Commission into the Protection and Detention of Children in the Northern Territory

ALHR is horrified by the abuses and torture of children in detention in the Northern Territory, highlighted throughout the Royal Commission into the Protection and Detention of Children in the Northern Territory (the Royal Commission). The United Nations Special Rapporteur on the Rights of Indigenous Peoples, Ms Victoria Tauli-Corpuz, following her visit to Australia in March 2017 stated that “the routine detention of young indigenous children was the most distressing aspect of [her] visit.” ALHR is proud to be one of nearly 100 organisations  to have joined Change the Record to call for immediate national action so we never see abuse again. We are deeply concerned at the worsening rate at which Australia is locking up Aboriginal and Torres Strait Islander children, which is now 25 times the rate of non-Indigenous children. Aboriginal and Torres Strait Islander children make up more than half the total number of children in prisons Australia-wide.

We note that this abuse is not isolated to the Northern Territory. Throughout the past 18 months there have been independent Inquiries into youth detention in every jurisdiction except South Australia.

In addition to removing children from their families and communities, children are being subjected to prolonged abuse including isolation, restraint chairs, spit hoods and tear gas in youth prisons.

This is unacceptable.

All Australian governments must take immediate measures to reform our youth justice systems and address the recommendations of the Royal Commission. These must be developed collaboratively with Aboriginal and Torres Strait Islander people and communities to ensure that all of Australia’s children thrive.

The undersigned organisations call on the Australian Government, working with the Northern Territory Government and other State and Territory governments through the Council of Australian Governments (COAG), to seize the landmark opportunity presented by the Royal Commission to:

• Work in partnership with Aboriginal and Torres Strait Islander people and their representative bodies to deliver a comprehensive and ongoing response to the recommendations of the Royal Commission

• Lead national reform through COAG of youth justice systems, laws, policies and practices. This must build on the recommendations of the Royal Commission, with a view to developing national minimum benchmarks for laws and policies

• Prioritise this issue as a standing item at future COAG meetings to ensure an ongoing comprehensive Commonwealth, State and Territory response to this pressing national issue
• Ensure there is independent oversight and monitoring of the implementation of the recommendations of the Royal Commission.

Cuts to National Partnership Agreement on Remote Housing (NPARH)

ALHR is deeply concerned by the prospect of Federal Government cuts to the National Partnership Agreement on Remote Housing (NPARH). Just a few days before Christmas it was reported that a $776 million commitment by the Federal government to the National Partnership Agreement on Remote Housing (NPARH) has been cut to just $100 million, and for homes only within the Northern Territory. The original 10-year NPARH partnership was brokered by the federal Labor Rudd government and contributed about $100 million per year to WA. Indigenous leaders are deeply concerned the government is backing away from its commitments to address the critical shortfalls in remote housing during the current Closing the Gap strategy refresh process. Aboriginal and Torres Strait Islander Social Justice Commissioner and fellow Co-Chair of the Close the Gap Campaign, Dr June Oscar, is worried about the impact for Aboriginal and Torres Strait Islander peoples in remote communities.

Instead, the Commonwealth say they provided $5.4 billion over ten years to 2018 through the NPARH and the National Partnernship for Remote Housing. And that this was was one-off National Partnership Agreement to assist states to undertake their own responsibilties for the delivery of housing. “The National Partnership on Remote Housing was always scheduled to cease on 30 June 2018. Under the NPARH the Commonwealth paid the states $5.4 billion to reduce overcrowding yet they abjectly failed to achieve this – this is why we are once again in negotiation with the states,” Mr Scullion said.  In joint statement, Shadow Minister for Housing and Homelessness Doug Cameron and WA Labor Senator Pat Dodson have demanded immediate clarity.

ALHR calls on the Federal government to take immediate steps to ensure the continuation of funding for remote and indigenous housing.

Women and Girls’ Rights – Overall Grade F    

Assessment of Achievement: Limited

Reproductive Rights

The Federal Government has demonstrated less than elementary knowledge of its international human rights obligations in this area. This lack of understanding was most recently evident when the Minister for Women, Michaelia Cash crossed the floor to vote in support of Cory Bernardi’s anti-abortion motion. The Federal Government must consider the impact of its friendships on the quality of its work. It should also urgently revise knowledge of international human rights law and then work with errant team members to ensure a better performance in the New Year. In particular, long term offenders NSW and Queensland both failed to decriminalize abortion during the course of the year – but there are indications that this attitude may be on the improve. The recent appointment of a new Minister for Women, Kelly O’Dwyer, is also a hopeful sign.

Violence against Women

The Federal Government’s lack of understanding in this area is also manifest in its decision to drop domestic violence off the COAG agenda. There has generally been a failure to ensure women’s refuges and other specialized domestic violence services around Australia are guaranteed separate funding and are administered within a feminist framework rather than managed by large religious agencies. The need for the Federal Government to distance itself from bad influences is particularly apparent in view of the findings of the child sex abuse Royal Commission.

Economic Equality                         

Another disappointing result, with the Federal Government demonstrating a decided lack of effort. Cuts and changes to Parenting Payments have prompted a complaint to the United Nations on the basis of sex discrimination. Terese Edwards, the chief executive of the single mothers’ lobby group says the move “condemned women who head up a single-parent family to a life of hardship as they contend with housing stress, deprivation, skip meals and forgo medical treatment”.

The recent appointment of Gary Johns as head of the ACNC also indicates a continuing attitudinal problem, in view of his past comments that recipients of welfare benefits must use contraception and referring to impoverished Aboriginal women as “cash cows”. It is recommended that the Federal Government work hard over the break on understanding the need to acknowledge and fairly compensate women for the domestic and care work that they carry out and which constitutes a mainstay of our economy.

While it is pleasing to see New South Wales close a loophole allowing employers to sack a woman who knew she was pregnant when hired, there is also still a long way to go to end systemic pregnancy and parenting discrimination within the workforce which manifests in the gender pay gap and a shortfall of women in leadership positions.

 General Comment

The Federal Government is outgoing and confident, as apparent in its nomination and appointment to the UN Human Rights Council. Nevertheless, it must maintain focus to reach its full potential in all areas. In particular, the Federal Government must learn to pick its friends carefully and show compassion and understanding for others. It must also conduct itself with respect for the rules set by the human rights conventions to which it is a signatory.

Disability Rights – Overall Grade D

ALHR’s Disability Rights Subcommittee remains concerned about the Australian Government’s approach to persons with disabilities. Overall, the Subcommittee’s view is that the current policies violate principles of international law and drastic reform is needed to bring Australia into line with its international obligations.

Segregated Education

ALHR is concerned that the Australian government is yet to implement an Australia-wide solution to allow the full integration of children with disabilities into regular classrooms. Recent media reports highlight that children with intellectual and behavioural impairments continue to be segregated, isolated, and in some cases, restrained. All children with disabilities are entitled to inclusive education and we call upon the government to abandon segregated education and to find durable solutions for the inclusion of children with disabilities into mainstream education.

Substitute Decision-Making

ALHR is concerned that the Australian government is yet to implement supported decision-making to allow persons with disabilities to express their legal personhood and to make their own decisions. Recent case law (see QDB [2017] QCAT 280), highlights how persons with disabilities are still not being supported to make their own decisions in violation of Australia’s international human rights obligations. We call on the Australian government to abandon substitute decision-making arrangements and to urgently replace them with supported decision-making arrangements to allow persons with disabilities to develop the ability to make their own decisions.

Continued Use of Restraint and Seclusion

ALHR is concerned with the high prevalence of restraint and seclusion upon persons with disabilities in institutional settings, including those with psychosocial disabilities, intellectual impairments, and conditions such as dementia. We call on the Australian government to prohibit the use of seclusion and all forms of restraint to ensure the bodily integrity and liberty of persons with disabilities.

Positive Development

The NDIS is being rolled out. While the NDIS is a positive, it has encountered teething problems. Some persons have complained of inadequate funds to cover the complex care needs of persons with disabilities. Others have complained about the planning process which determines how much funding they can access, with complaints about NDIS planning staff and others about planning meetings being held on the telephone which may be inappropriate for some persons with sensory, psychosocial or intellectual impairments. The Australian government must ensure that the planning process runs more smoothly and that persons with disabilities receive adequate funding for their care needs.

LGBTI Rights – Overall Grade D-

ALHR’s LGBTI Subcommittee remains concerned about the Australian Government’s approach to the human rights of LGBTI citizens and non-citizens under its care and control. 2017 involved many incidences of human rights breaches in relation to the LGBTI community, including breaches of the community’s right to feel safe in our workplaces, educational institutions, public places and homes.

The LGBTI Subcommittee is of the view that 2017 was a brutal year for our community. This was a result of the Australian Government’s refusal to act according to principles of representative, democratic governance.

The marriage postal survey caused the community enormous harm and that took the form of public hate speech from conservative and religious quarters, public and hurtful discussions about the legitimacy of LGBTI relationships, negative debates about the “implications” of marriage equality for broader society and childhood education, conservative and hateful commentary arguing religious “freedoms” would be breached if marriage equality were permitted, and parliamentary debate that often comprised hurtful, homophobic and false statements about the LGBTI community’s relationships and status as a persecuted minority in Australia.

While the LGBTI Subcommittee is grateful for the overwhelming “yes” response to the marriage postal survey, it is still very concerning that 3.8 out of every 10 Australians voted “no” and, in voting “no, either didn’t understand the issue they were being asked to vote on or, alternatively, did not think that LGBTI Australians deserve equal rights.

The LGBTI Subcommittee is of the view that the Australian Government has also repeatedly refused to publicly condone attempts to enshrine, in the name of “freedom of religion”, religious discrimination in legislation, and has given air-time to proponents of “free speech”, erroneously misrepresenting freedom of speech and freedom of religion as superior human rights to other human rights.  

In addition to the human rights issues that were highlighted during the marriage equality debate, the LGBTI Subcommittee is also critical of the Australian Government’s approach to LGBTI refugees seeking asylum because of the significant threats posed by the countries of origin. These people seek safety and it is a sad state of affairs when a country that is a beacon of light and freedom rejects asylum seekers who face harassment, abuse, torture and death because of their status as a sexual minority in their homelands.

On a positive note, the Australian Government should generally be commended for using inclusive wording in marriage laws related to the LGBTI community. It should also be somewhat recognised for facilitating inquiries into the issues faced by LGBTI elders in aged care.

LGBTI Refugees

The Australian government’s treatment of refugees, particularly those suffering on Manus Island, is addressed fully in the Refugee and Asylum Seeker Subcommittee Report Card. But in this report card, the LGBTI Subcommittee draws particular attention to the plight of LGBTI refugees while between 30 to 40 gay or bisexual men sit in indefinite detention in Papua New Guinea under Australian control.

ALHR is particularly concerned that Australia has failed to meet its international obligations to provide protection from persecution to LGBTI refugees, particularly where those refugees are detained in hostile countries such as Papua New Guinea, where same sex sexual activity remains a criminal offence attracting up to 14 years in prison.

Of additional concern to the LGBTI Subcommittee is that refugees from Afghanistan, Iran, Iraq, Bangladesh and Pakistan face the possibility of refoulement and therefore persecution or murder because of their sexual minority status. Each of these countries is known for having criminal laws that sanction homosexuality, and, in some cases, prosecute homosexuality in religious courts before causing LGBTI convicts to be stoned, hanged or beaten to death in public ceremonies.

To date LGBTI refugees on Nauru and Manus Island have reported physical assault, sexual assault, verbal assault and harassment attributed to their visibility as men perceived to be engaging in same-sex sexual activity.

Encouragement of LGBTI vilification

The Australian Government should have permitted a free vote in parliament rather than outsourcing its responsibilities to the public at large. Members of parliament are elected by their constituents to engage in civil debate within a chamber of parliament. The marriage postal survey encouraged LGBTI vilification and was pushed to the public without any publicity / campaigning protections that would ordinarily apply during an election.

The LGBTI community was harmed during the postal survey as its sexual minority status was kicked around a political football ground. Vilification was rife and remedies weren’t available because most public statements were framed politically or within religious contexts, allowing perpetrators of vilification to hide behind statutory defences.  

Freedom of speech over freedom from harassment

The marriage equality debate generated much public discussion about the right to freedom of speech. Many conservative commentators equated marriage equality with a war on freedom of speech. And, once again, freedom of speech was promulgated to new heights above other human rights such as the right to be free from harassment. The LGBTI community was targeted and labelled bullies for campaigning for marriage equality.  

Freedom of religion over freedom from discrimination

The LGBTI Subcommittee is of the view that the Anti-Discrimination and the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (and the resulting amended Marriage Act 1961 (the Marriage Act)) allows discrimination on the grounds of sexual orientation or gender identity, contravening numerous United Nations instruments to which Australia is a party.

Article 2 of the Universal Declaration of Human Rights enshrines the right to non-discrimination (that is, to be free of discrimination on grounds including sex and status). Articles 2(2) and 26 of the International Covenant on Civil and Political Rights (ICCPR) have been determined to include sexual orientation. Sexual orientation (and protection from discrimination on the basis of sexual orientation) has also been found to be the subject of Articles 2(2) and 3 of the International Covenant on Economic, Social and Cultural Rights.

The momentous victory of the marriage postal survey result effectively comes hand-in-hand with attacks on Australia’s international obligations to protect against discrimination because the Marriage Act now carves out new avenues to target the LGBTI community specifically. LGBTI people are now targeted under the guise of “religious freedom” protections, even though civil pathways for LGBTI marriages are also provided.

Intersex Recognition and Rights

The Australian Government has yet to address human rights violations faced by the intersex community.

With the release of the historical Darlington Statement calling for the recognition of human rights for intersex people, public awareness of intersexuality and issues this community faces have risen. Intersex activists and organisations such as the Australian branch of Organisation Intersex International and the Androgen Insensitivity Syndrome Support Group Australia, have called for action to be take in Australia to reduce discrimination.

The United Nations Human Rights Committee has previously supported calls to end medically unnecessary irreversible and invasive medical interventions on infants and children born with intersex variations who are unable to consent.

The LGBTI Subcommittee calls on the Australian Government to implement the recommendations of the Senate Standing Committee on Community Affairs’ 2013 inquiry report on involuntary or coerced sterilisation of intersex people through medically unnecessary procedures. Such action would protect rights under the International Covenant on Civil and Political Rights (1966) relating to non-discrimination (articles 3 and 24), protection from torture and experimentation (article 7), the right to liberty and security (article 9), privacy (article 17), and equality before the law (article 26).

Trans Recognition and Rights

While the Australian Government has again been quiet on the rights of, and issues faced by, the trans community, 2017 has seen a number of improvements for trans people in Australia through the courts and activism.

ALHR strongly supported the trans and intersex inclusive wording of amendments to Dean Smith’s amendment to the Marriage Act. By legislating for consenting adults to marry regardless of their legal gender or sex characteristics, this legislation implements “the right to marry and to found a family” in article 16 of the Universal Declaration of Human Rights.

It should be noted, however, that following the passage of marriage equality, transgender people who married prior to transition are still required to obtain a divorce under state and territory law for the legal gender to be recognised in all states and territories except the ACT and South Australia. This will remain the case until new laws pass when respective parliaments sit, hopefully in the new year.

While not enacted by the federal government, the trans community saw another major win for in November with the the landmark decision of Re Kelvin. This Family Court case reversed the need for trans youth to apply to the Family Court for authorisation to access reversible hormone treatment. As the only nation in the world requiring permission from the courts instead of only medical and psychological professionals, this reversal is a welcome change that will end costly delays to gender affirming treatments. ALHR calls on the Australian Government to support such decisions and to legislative to remove discriminatory practices preventing the need for costly legal activism.

Safe Schools

2017 saw the end of funding of the National Safe Schools program after it was attacked by certain religious and right-wing groups who misrepresented the objectives of the program and won over public opinion in the process. Opponents to the program said that it was designed to groom children to be homosexual, when, in reality, it was a national curriculum based on academic research into the experiences of children identifying as LGBTI and promoted inclusiveness of these children in the school environment while educating the wider population of school children on the difficulties LGBTI children faced in a heteronormative society.

The Australian Government ceased funding the program in mid 2017 and, as a result, the states have variously created their own programs of which some, to varying degrees, address LGBTI culture.

What should be a nationally consistent approach to LGBTI inclusiveness in our schools is fractured and decentralised, seeping back into general, heteronormative anti-bullying schemes.    

Aged Care

ALHR applauds the publication of the Aged Care Diversity Framework by the Federal Government to foster LGBTI inclusion in the aged care sector. This is particularly important for aged trans and intersex people whose identities and medical needs can be poorly understood. The reforms enunciated in the report will provide much-needed improvements to ensure LGBTI seniors accessing services can receive the same level of care and respect as the general population and benefit from reforms to aged care generally.

Business and Human Rights – Overall Grade C

Positive Progress 

In 2017 the Australian Government took a number of positive, preliminary steps towards understanding how Australia can improve its approach to dealing with corporate human rights abuses, through a range of Government Inquiries. However, the recommended outcomes of these Inquiries are yet to be implemented.

Modern Slavery Inquiry

The outcome of the Federal Government’s Inquiry into the introduction of a Modern Slavery Act was a recommendation that that the Australian Government should implement a Modern Slavery Act similar to the United Kingdom’s Modern Slavery Act 2015. The Inquiry’s final report recommended the Act should establish: an Independent Anti-Slavery Commissioner; a compensation scheme for victims; increased protections for migrant workers; and a requirement that large companies report annually on modern slavery risks in their supply chains.[1]

Independent Review of the OECD Australian National Contact Point

The Federal Government commissioned an Independent Review of Australia’s primary complaints body for dealing with corporate human rights abuses, the Australian National Contact Point (ANCP). The ANCP currently lacks transparency and independence, and is generally ineffective. The Independent Reviewer’s December outcome report suggested major reforms to the ANCP to bring it in line with best practices of other OECD National Contact Points.[2]

 Organ Trafficking Inquiry

Following an Inquiry into Human Organ Trafficking and Organ Transplant Tourism, the Federal Government has proposed reforms to organ trafficking laws so that the laws have extraterritorial effect.

More work to be done

The Australian Government should now demonstrate its commitment to addressing and preventing corporate human rights abuses by implementing the above Inquiries’ recommended reforms in 2018.

The Australian Government’s decision in October 2017 not to proceed with the creation of a National Action Plan on Business and Human Rights (NAP) at this time, appears inconsistent with such commitment and has partially undermined positive progress made during 2017. The decision not to proceed with a NAP goes against the unanimous advice of the Government’s expert Multi-Stakeholder Advisory Group on the Implementation of the UN Guiding Principles on Business and Human Rights.[3] It is also out of step with Australia’s international peers such as the United Kingdom and United States that have a NAP. At least 30 countries currently have or are preparing a NAP.[4] NAPs are a tool for providing coherent policy guidance to business on business and human rights issues.

Additionally, the Australian Government continues to fail to adequately address illegal and unethical procurement of organs with trading partners such as China.

[1] Commonwealth of Australia, Joint Standing Committee on Foreign Affairs, Defence and Trade, Hidden in Plain Sight: An inquiry into establishing a Modern Slavery Act in Australia (December 2017) p. xxvii, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Foreign_Affairs_Defence_and_Trade/ModernSlavery/Final_report/section?id=committees%2freportjnt%2f024102%2f25514

[2] Alex Newton, Independent Review: Australian National Contact Point under the OECD Guidelines for Multinational Enterprises (December 2017), http://www.ausncp.gov.au/content/Content.aspx?doc=2017_review.htm

[3] Multi-Stakeholder Advisory Group on the Implementation of the UN Guiding Principles on Business and Human Rights, Advice on the prioritisation of issues and actions to implement the UN Guiding Principles on Business and Human Rights (UNGPs), (August 2017), http://dfat.gov.au/international-relations/themes/human-rights/business/Documents/final-msag-priorities-paper.pdf

[4] Danish Institute for Human Rights, National Action Plans on Business and Human Rights, https://globalnaps.org/country/ (accessed January 2018)

State and Territory Report Cards

Australian Capital Territory – Overall Grade B

In 2017 there were some great improvements especially with the Discrimination Act amendments, amendments to make sharing of intimate images illegal and recognizing same sex marriages overseas in the ACT. However, there were also major setbacks the most concerning being the recent amendments which allows police expanded powers in relation to warrants which may be abused.

Refugee Rights 

A motion was introduced in the ACT Legislative Assembly declaring the ACT Government’s willingness to settle refugees from Manus Island and Nauru. The motion acknowledges that refugees in offshore processing centres have been subjected to violent attacks, sexual violence, inadequate medical care, and harassment. It requests the Federal Government immediately remove all refugees and asylum seekers from Manus Island and Nauru and bring them to Australia’s 148 Refugee Welcome Zones.

Disability Rights 

• 32 recommendations were made from the report by the Standing Committee on Health, Ageing and Community Services to be immediately applied across all organisations in the Australian Capital Territory to ensure people with disabilities have equal opportunities to employment. The recommendations need to be implemented urgently.
• In 2018 the Standing Committee on Health, Ageing and Community Services today announced that it is inquiring into the implementation, performance and governance of the National Disability Insurance Scheme (NDIS) in the ACT.

LGBTI Rights

Same sex unions formally recognized in ACT – Same-sex marriages and other same-sex relationships with formal recognition in other jurisdictions will now be automatically recognised in the ACT as civil unions under new laws passed in 2017.

Indigenous Rights

The ACT Government became the first Australian state or territory to gazette Reconciliation Day as a public holiday. The inaugural holiday will be held on 28 May 2018 at the start of National Reconciliation Week and will replace Family and Community Day in the Territory. However, the next step is to resolve the debate regarding the appropriateness of celebrating Australia Day on 26 January which for many Indigenous peoples in Australia is a date synonymous with invasion and marginalisation.

Freedoms

2017 also saw recent changes to expand discrimination law in the ACT. The Discrimination Amendment Bill 2016 (ACT) expands discrimination law to now include extra grounds on which discrimination is prohibited including where it is based on a person’s accommodation status, employment status, intersex status, status as a victim of family or domestic violence, immigration status or their physical features, genetic information or a record of their sex having been altered.

The Crimes (Intimate Image Abuse) Amendment Bill 2017(ACT) was introduced in 2017 which now makes it illegal to share an intimate photo without consent. The Act makes it a crime to publish, or threaten to publish, intimate photos and images. The punishment is up to three years in jail or a $45,000 fine with that sentence and fine increasing if the victim is under 16 years. The change brings the Territory’s laws up to date with today’s technology and reflects the unfortunate capacity for intimate images to be shared, without consent, rapidly and widely. It provides a system for victims to seek recourse in circumstances where there has been a deliberate act to humiliate and control them.

There are new expanded police powers under the Crimes (Police Powers and Firearms Offence) Amendment Bill 2017 which recently passed in the Australian Capital Territory. The Act has created a new offence of “drive by shootings” and will expand police powers by allowing entry of a person’s home without a warrant for minor crimes such as shoplifting. Currently a person’s home can only be entered with a warrant, where a dangerous situation exists or where the person has given their permission. It potentially ignores long standing civil protections and invades one’s right to privacy.

Human Rights Act 

There was an Inquiry into Housing in the ACT however this was cancelled. It was expected to look into whether there should be a right to housing under the ACT Human Rights Act.

Miscellaneous

ALHR made calls for the ACT Government to raise the age of criminal responsibility from 10 years to an absolute minimum of 12 years of age in line with the UN Committee on the Rights of the Child has stated very clearly that anything below 12 years of age is not internationally acceptable and the Royal Commission.

There was a death of a man after a taser was used on him by ACT police officers. In some Australian states, due to their high volatility and danger, the use of tasers by police is restricted special operations groups. Despite the incident, the ACT Police Service is continuing with its taser rollout with all officers expected to have tasers within four years.

New South Wales – Overall Grade E+

Abandoning rule of law does not make us safer

During 2017 the NSW Government rushed through several knee-jerk anti-terror proposals. ALHR fears the Berejiklian Government is abandoning vital principles that form the bedrock of our criminal justice system with virtually no opportunity for an appropriate level of scrutiny. The measures rammed through in 2017 deal with police using force in a situation labelled as ‘terrorist’ or ‘likely to be terrorist’ and with parole. ALHR is concerned by the idea that the Police Commissioner should be empowered to give blanket permission to police to use lethal force simply by labelling a situation as ‘likely to be terrorist’. The provisions about parole mean that people with no direct links to terrorism and who have never been charged with a terrorism related offence may be denied parole purely on the basis of links that their friends, families or workmates are alleged to have. The measures make it virtually impossible for the Parole Board to grant parole to people alleged to have associations with extremists, by requiring the Board to be ‘satisfied that the person will not engage in, or incite or assist others to engage in, terrorist acts or violent extremism’ – an impossible test. Moreover it is unclear what happens to people who are denied parole under these measures. Are they to be imprisoned indefinitely or released without the very important close supervision offered by parole? Setting impossible tests for parole undermines the very important principles of judicial discretion and the presumption of innocence. It is therefore inconsistent with Australia’s obligations under international human rights law and ignores the potential for serious miscarriages of justice to result.

Growing emphasis on prisons and increasing imprisonment rates, especially for Indigenous people in NSW

The number of Aboriginal people imprisoned in NSW has increased by 35% since 2011. The NSW Government is set to spend 3.8 billion on extra prison beds yet evidence based policy would recognise that much could be done to reduce the overrepresentation of Indigenous people in NSW prisons by simply addressing the State’s failing bail laws, over-policing and discretionary police powers that appear to be used disproportionately against Indigenous Australians.

NSW Pre-Emptive Policing Program

A secretive New South Wales Police program which disproportionately targets young people, particularly Aboriginal youth, for pre-emptive policing called the Suspect Target Management Plan raises serious human rights concerns in NSW. The STMP enables any NSW police officer to place people, including minors, who have never been convicted of an offence but who police suspect to be at risk of committing future crimes as well as recidivist offenders, on a list whereby they are targeted for intensive policing. Once placed on this list a person is subjected to intensive policing practices such as being repeatedly stopped on the street and searched, and having police officers regularly visit their home to request that they present.

A recent report led by lawyers from the Public Interest Advocacy Centre and the University of New South Wales found the program has targeted children as young as 10 years of age, over a year-long period where over half of the total targets were under 25 years of age and 44% were Indigenous. The research also found that young people with minor offending histories such as shoplifting, graffiti, or drug possession had been placed on the plan.

Intensively policing people who have never been convicted of any offence, based on secretive algorithms is inconsistent with fundamental human rights and rule of law principles such as the presumption of innocence. Such people are effectively being punished prospectively via significant police intrusions into their day-to-day life based on an assumption that they might commit a crime at some point in the future. Furthermore, the program and the way in which it appears to disproportionately target the Aboriginal community in NSW as well as young people is discriminatory and offends the principle that all persons are equal before the law and are entitled to the equal protection of the law.

Failure to Decriminalise Abortion

During 2017 the New South Wales parliament again failed to protect the rights of women and girls’ by passing legislation to decriminalise abortion. Abortion is currently a criminal offence under the NSW Crimes Act, punishable by 10 years imprisonment. The current NSW laws are archaic and not reflective of community values or of internationally recognised human rights principles. According to the Convention on the Elimination of Discrimination Against Women (CEDAW), Australia has an obligation to protect the rights of women and girls to access health services, including family planning and to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights. Decriminalisation of abortion has already occurred in the ACT, Victoria, Tasmania and most recently the NT. NSW is lagging behind the rest of Australia and the Western world in protecting reproductive rights.

Anti-Protest Laws

NSW’s harsh and unnecessary anti-protest laws remain in place despite the High Court of Australia finding very similar Tasmanian legislation to be unconstitutional on the grounds that it breached the implied right of political communication. The NSW laws give police excessive powers to stop, search and detain protesters and seize property as well as to shut down peaceful protests that obstruct traffic. They expand the offence of “interfering” with a mine, which carries a penalty of up to seven years’ jail, to cover coal seam gas exploration and extraction sites and increase by tenfold the penalty applying to unlawful entry to enclosed land.  Three protesters are currently before the courts and face up to 14 years in jail after becoming the first people charged under laws introduced by the NSW government last year.

NSW victims of crime compensation inadequate:

ALHR strongly supports calls made by Community Legal Centres for higher payments, the removal of time limits and acceptance of wider evidence in relation to claims for victim compensation for domestic violence, sexual assault and child abuse. The inadequacy of current victims of crime compensation in NSW is inconsistent with international human rights standards, including the International Covenant of Economic Social and Cultural Rights (ICESCR) the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which respectively guarantee the right of everyone to the highest attainable standard of physical and mental health and substantive equality between men and women. Moreover, the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Powerstates that victims should have their right to redress mechanisms fully respected, and that the strengthening and expansion of national funds for compensation to victims should be encouraged.

Northern Territory – Overall Grade F

The Royal Commission into the Protection and Detention of Children in the Northern Territory and the Government’s response 

The Royal Commission’s Final Report, released in November 2017, documents serious and repeated breaches of the fundamental human rights of children in youth detention and out of home care in the Northern Territory since 2006.

On the release of the Royal Commission’s Final Report, Chief Minister Michael Gunner responded by stating ‘It will live as a stain on the Northern Territory’s reputation’. Mr Gunner apologised on behalf of the Government and called for ‘the most comprehensive overhaul of youth justice and child protection in NT history’.

However, these words are yet to be followed by positive change in the approach to youth justice and child protection in the Northern Territory. Of particular concern is the decision by the Police Commissioner to order the Northern Territory’s counter-terrorism police unit to patrol Darwin and Alice Springs at night to reduce youth crime, while ignoring calls to put in place an immediate moratorium on arrests of children under 12 years old. This move, occurring just days after the Royal Commission’s Final Report was released, is in direct conflict to the approach recommended by the Royal Commission.

The failure by Commonwealth and Northern Territory Governments to quickly agree on how to fund the Royal Commission’s achievable recommendations is also troubling.

Too many Aboriginal children remain in out of home care with non-Aboriginal carers away from family, culture and country

The 2016-17 Annual Report for the Northern Territory’s child protection agency, Territory Families, has revealed the number of Aboriginal children in care has continued to grow and the number of Aboriginal children placed with Aboriginal carers has continued to fall. In 2016-17, there were 938 Aboriginal children in out of home care, with just 31.9% of those children living with Aboriginal carers. In 2012-13, there were 623 Aboriginal in care, with 51.47% of those children living with Aboriginal carers.

These figures represent a clear failure by Territory Families to take the legislated Aboriginal Child Placement Principle seriously, and to respect the fundamental human rights of Aboriginal children in the Northern Territory.

The incarceration rates in the Northern Territory remain disturbingly high

The Northern Territory consistently has the highest incarceration rates for both adults and children in the country, with Aboriginal and Torres Strait Islander adults and children being disproportionately affected by this extreme over incarceration. In 2016, Aboriginal and Torres Strait Islander peoples made up 84% of the adult prison population and, as estimated by the Royal Commission, 94% of the youth detention population.

In April 2017, the Northern Territory adult prison population reached a new record high. Despite the focus on incarceration rates brought about by the Royal Commission, documents obtained by the ABC revealed that ‘the Department of Justice advised the Attorney-General it was unlikely to attract media interest’ and ‘offered no new ideas on how to bring the figure down’.

The housing crisis in remote communities in the Northern Territory continues

The ongoing housing crisis in remote communities in the Northern Territory continues, with hundreds of Aboriginal people not having their right to adequate housing realised. Despite the Northern Territory Government’s efforts over the last 12 months through its ‘Room to Breathe’ program, much more needs to be done and the Commonwealth Government needs to step in to make this happen.

Queensland – Overall Grade C-

Grade A – Homosexual expungement laws

• Legislation passed in May 2017 to expunge convictions over historical homosexual convictions
• The Historical Homosexual Convictions Expungement Bill was passed with the bipartisan support of the house.
• The Government said the bill was introduced to Parliament as part of their 2015 election commitment to the LGBTI community to “write a historical wrong”.
• Those with convictions relating to “illegal homosexual activity” dated before January 19, 1991, will be able to apply to the Department of Justice and Attorney-General to have the historical charges removed and will be judged on a case-by-case basis.

QLD Human Rights Act

• Following consideration of the Legal Affairs and Community Safety Committee’s Report No. 30, Inquiry into a possible Human Rights Act for Queensland delivered on 30 June 2016, the Queensland Government committed to implementing a Human Rights Act for Queensland.
• However, in the past 18 months there has been no action or implementation of a Human Rights Act despite Premier Palaszczuk publicly promising on 29 October 2016 that legislation modelled on the Victorian Charter of Human Rights and Responsibilities Act 2006 would be implemented.

Youth Detention

• The Independent Review into Youth Detention, conducted between August and December 2016, contained very narrow terms of references which were revised after public scrutiny. A report was provided to the Attorney-General and Minister for Justice on 14 December 2016 but was not publicly released until 26 April 2017. The first release was heavily censored with the Government refusing to un-redact the Report. However, after a public/media backlash the government backtracked and re-released the Report on 28 June 2017 with less redactions.
• The Report contained significant and damning evidence of cultures of widespread abuse and brutality in Youth Detention in Queensland. The Report found evidence of systemic mistreatment of young people in Queensland youth detention centres. The report also found that youth detainees were used by staff as “enforcers” by staff to intimidate other troublesome youth due to resource3 shortages and low staffing levels.
• As at late 2017, the progress of implementation of the recommendations has been slow.

17yo Out of Adult Prisons

• In September 2017 the Qld government announced that it would start moving 17yo’s out of adult prisons from February 2018.
• ALHR has campaigned on this issue over the years and it was a very exciting announcement on the back of the damning revelations of the Independent Review into Youth Detention
• Whilst this is very exciting news, this has taken some twenty years for both major parties to implement.

Decriminalization of Abortion Laws

• Queensland failed to decriminalize abortion when it had the chance in early 2017. Throughout 2016, ALHR had advocated robustly with a coalition of other organisations that abortion should be dealt with as a women’s health and human rights issue and not a criminal issue.
• In February 2017, the bills introduced by independent member for Cairns Rob Pyne MP failed to pass. Subsequently, the Queensland government referred the issue to the QLD Law Reform Commission (QLRC) and pledged that they would “modernize” the laws based on the QLRC’s recommendations. However, this all seems to be delay tactics by the government, who had many opportunities to legislate abortion decriminalisation in the past two years. Terms of reference for the report and draft legislation appeared on the QLRC website on 20 June 2017 and submissions are due mid-February 2018.

Additional funding for Community Legal Centres

• In May, the PalaszczukGovernment has announced immediate interim funding to give Community Legal Centres more certainty while we await further details from the Federal Government – a further $565,000 of Queensland funding will be allocated as an interim measure to the 22 impacted community organisations.
• In September 2017, the Palaszczuk Government also announced the allocation of an additional $4.796 million in funding for Queensland Community Legal Centres to ensure Queenslanders have access to legal services. Attorney-General and Minister for Justice Yvette D’Ath MP said the additional funding would support 10 organisations from 2017 to 2020.

South Australia – Overall Grade D

Treatment of prisoners in SA prisons

ALHR SA is disappointed by the ongoing mistreatment of prisoners in South Australian prisons. The South Australian Ombudsman, Wayne Lines, told the Crime and Public Integrity Policy Committee that the majority of complaints received related to the poor treatment of prisoners. The Department of Correctional Services only recently made the move to using soft shackles for prisoners receiving medical treatment, despite a number of complaints that prisoners had been inhumanely restrained. ALHR SA is hopeful that in light of the Federal Government’s recent ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment more thorough audits of prisons may take place.

Freedom of information laws

South Australia’s Freedom of Information legislation requires reform to ensure people are able to access digital data and audiovisual recordings where entitled to do so. The current Freedom of Information Act 1991 (SA) was enacted before digital documents and recordings became widespread.

Amendments to the Bail Act

Amendments to South Australia bail and parole laws (with the Statutes Amendment (Terror Suspect Detention) Act 2017) have the effect of enacting a presumption against bail and parole for ‘terror suspects’. ALHR SA is concerned with this reversal of the presumption in favour of bail. The presumption in favour of bail is a fundamental right, giving substance and effect to the presumption of innocence in criminal law. Accused persons will unnecessarily deprived of their personal liberty.

Amendments to sentencing laws

The South Australian Parliament has also passed the Statutes Amendment (Youths Sentenced as Adults) Bill 2017 which inserts a provision into the Young Offenders Act 1993 (SA) that provides that if a sanction is imposed on a youth who is being dealt with as an adult, the paramount consideration of the court in imposing a sentence must be the safety of the community. This consideration therefore takes priority over the need to rehabilitate the youth. It also violates the United Nations Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice which provide that, when considering changes to sentencing laws, the “best interests of the child shall be a primary consideration”.

Tasmania – Overall Grade D

Attempts to weaken Anti-Discrimination Act

2017 saw several attempts to weaken the Anti-Discrimination Act 1998. The amendments proposed by the Tasmanian Government in April 2017 and again when the marriage equality postal survey was announced would have had widespread negative implications for many individuals and minority groups. ALHR was highly critical of the very limited timeframe allowed for community consultation and feedback. The proposed changes to the Act failed to pass but ALHR is highly concerned that the current Government sought to leave the LGBTI community and other individuals and minority groups open to hate speech and offensive, humiliating, intimidating, insulting or ridiculing conduct on the basis of “religious purpose”, the proposed definition of which was ambiguous and without limitation. Based on the recent overwhelming public support for section 18C of the federal Racial Discrimination Act there is no case for the weakening of Tasmanian protections against hate speech.

Attempts to introduce mandatory sentencing regime

The Tasmanian Government also pressed ahead in 2017 with an agenda of mandatory minimum sentencing,despite broad opposition from the Sentencing Advisory Council and the legal community. ALHR is strongly opposed to mandatory minimum prison terms on the basis that they impose unacceptable restrictions on judicial discretion and independence, undermine fundamental human rights and rule of law principles and amount to arbitrary detention in breach of Australia’s obligations under Article 9(1) of the International Covenant on Civil and Political Rights.   Judicial discretion is absolutely critical to ensuring the integrity of our criminal justice system. ALHR recognises the gravity of child sex offences and the very serious enduring harm they cause to victims. Unfortunately however, the reality is that mandatory minimum sentencing has no deterrent effect and does not reduce rates of offending. It is all too often a populist move, rather than an evidence-based response. A mandatory minimum sentencing regime that prohibits the court from attributing the weight it deems appropriate to the seriousness of the offending and the circumstances of the offender is bound to result in terms of imprisonment that are arbitrary. Ultimately the Bill was defeated in the Legislative Council but ALHR remains concerned that the Government introduced it at all and continued throughout 2017 to press this reform.

Anti-protest laws

After a challenge brought by former federal senator Bob Brown and nurse Jessica Hoyt against Tasmania’s anti-protest laws, the High Court robustly struck down the anti-protest laws as un constitutional and in violation of the implied freedom of political communication including because they were confusing, overly broad, vague and demonstrated “Pythonesque absurdity”. Whilst in the absence of a bill of rights, the High Court was not required to consider international human rights law standards, ALHR has found that the laws aggressively infringed on many fundamental human rights including the right to political participation, freedom of expression and freedom of association and peaceful assembly as protected by Articles 19, 21, and 22 of the ICCPR, amongst others. ALHR emphatically campaigned against the laws and hopes that the High Court’s ruling will discourage future governments of attempting the same. The right to protest is a fundamental human right that should be protected and cherished by all Australians and by Australian governments on their behalf.

Human Rights Act

It has been 10 years since the Tasmanian Law Reform Institute recommended the state should establish a human rights Act, with the THRA launching a petition about the issue this year. The Campaign for a Tasmanian Human Rights Act has been gaining momentum throughout 2017 and ALHR was very disappointed that a Government spokesperson stated in October 2017 that “The Government has no plans to introduce a human rights Act. We have a long-term plan for Tasmania which prioritises jobs, health, education and supporting the vulnerable.” ALHR calls on the Government to listen to the community and introduce legislation to protect the rights of all Tasmanians during the 2018 sitting term.

Child Protection

Safe Pathways allegations – Child protection workers in Tasmania broke ranks to detail a system they say is worse now than it has ever been, making a bad situation worse for at-risk children. There have been dozens of reviews and recommendations over the years for how to fix Tasmania’s child protection system. The Safe Pathways scandal also gave rise to concerns over compliance with the Right to Information Act 2009. 

Right to Housing

According the Rental Affordability Index released in May 2017, Hobart is the second most unaffordable Australian city in which to rent, after Sydney. This disproportionately impacts on young people, who are also being priced out of home ownership. The waitlist for public housing accommodation has grown by 1,000 applicants in a year wth over 4,000 Tasmanians waiting for housing.  Households with low incomes are being squeezed out of the rental market or are paying the bulk of their income on rents In this context, the State government passed laws to allow housing to be converted to visitor accomodation, exacerbating these pressures. Housing is a human right and families should not need to forgo other fundamental rights such as to food, health care and education in order to keep a roof over their heads.

Victoria – Overall Grade C

 Voluntary Assisted Dying Legislation

After a 26-hour parliamentary debate and much controversy, Victoria has now passed a Euthanasia law. This makes Victoria as the first state in Australia to legalise voluntary assisted dying. This new law gives patients the option to self-induced the drug themselves or with a help of medical practitioner if it is physically impossible for them to so doing. This law includes 68 safeguards to ensure vulnerable patients are protected from abuse as well as creating a special review board to hear cases that fall under its jurisdiction.

Excessive police force

Heavily armed police force clashed with anti-racist protesters outside the venue where Milo Yiannopoulos gave a public speech in early December. Flemington housing residents were reportedly paper sprayed and were not allowed get into the building where they live. Some children who living in the estate were too afraid to leave home for school the next day because the violent protest left them distressed.

First indigenous woman elected to Parliament

Lidia Thorpe, a Gunnai-Gunditjmara woman, has been elected to Victorian Legislative Assembly in November 2017. Ms Thorpe is the first indigenous woman to be elected in the Victorian parliament. Prior entering the parliament, Ms Thorpe has been heavily involved in the Victoria’s treaty discussion.

 Ruling on Child detainees

 The Supreme Court of Victoria has ruled that the government must remove young offenders from adult prisons. Justice John Dixon said that placing young offenders in adult prisons is incompatible with the children’s rights to be treated with humanity and respect for the inherent dignity of the human person and to have their best interests protected.

Rights organisations, including ALHR, have unequivocally expressed concern at how the Victorian government has been persistent in sending young people to adult prisons regardless of numerous judicial orders against its policy and the practice being in breach of the Convention on the Rights of the Child. The punitive approach employed by the Victorian government to law and order has been politically motivated and not compatible with the Victorian Charter of Human Rights.

 Safe injecting rooms

 Premier Andrews finally gave a green light for an 18-month trial of a safe and medically supervised injecting room for drug addicts in inner Melbourne. Previously the Andrews government blocked this initiative despite 46 of 49 submissions to the proposal from various health and community practitioners as well as twice from the Coroners’ Court. Whilst the premier’s change of heart is welcomed, some argue that this move has been politically motivated to win over the Northcote by-elections from the Greens. Although the Andrews’ government shows its compassionate towards the affected, this announcement is not without compromising the violation of other rights. This trial plan includes tougher penalties for drug traffickers.

 Support for refugees

 The Victorian government will spend $600,000 for the asylum seekers living in Victoria after the Federal government cut income and accommodation support to 400 asylum seekers in Australia. The Victorian government confirmed the fund will cover accommodation costs and it also pay for other necessities, including food, clothes, Myki cards and medicine.

Western Australia – Overall Grade B

Rights of Victims of Child Sex Abuse

In November, the Labor Government introduced a bill called the Civil Liability Legislation Amendment (Child Abuse Actions) Bill 2017. The purpose of this legislation is to amend the Civil Liability Act 2002 and the Limitation Act 2005 in order to remove the limitation periods in respect of civil actions for child sex abuse claims. This legislation is an important corollary to the criminal claims that can be brought against perpetrators of child sex abuse and is timely in light of the findings of the Royal Commission into child sex abuse, which found that victims are often reticent to come forward with their stories until many years after the abuse has occurred.

Youth Detention

In 2017, the Western Australian Department of Corrective Services continued its review of the Young Offenders Act 1994 (YOA) to ensure that the Act is achieving its objectives in the context of contemporary research and evidence including the report of the Royal Commission into youth detention. As the Royal Commission highlighted there are systemic deficiencies in the way Australian corrective facilities deal with youth imprisonment.

Whilst ALHR commends the State Government for undertaking the YOA review and is hopeful that it yields positive recommendations to help rectify those deficiencies, ALHR is concerned about behaviour management practices that continue to be used in youth detention. In July 2017, Inspector of Custodial Services, Neil Morgan, released a damning report detailing the frequent use of restraint and isolation practices at Banksia Hill Detention Centre. Given the reported high levels of self-harm among detainees, more urgent Government action is needed to address these alarming findings.

Fine defaulting and imprisonment

In Western Australia, people who are unable or who refuse to pay fines issued by the courts can have additional penalties applied in order to “pay out the balance” of their fine, including a term of imprisonment. In the event an individual is unable to “pay out the balance” of their fine in one of the other ways provided, a warrant may be issued for their arrest and imprisonment and fines may be “cut out” at a notional rate of $250 per day in custody.[1] According to the “Fine Defaulters Report” issued by the WA Inspector of Custodial Services in April 2016, of the 7,025 people imprisoned for fine defaulting from July 2006 to June 2015:

• 64% of female fine defaulters in custody were Aboriginal women; and
• 38% of male fine defaulters in custody were Aboriginal men.

The disproportionate affect of Fine Defaulting provisions on the Indigenous community is incredibly concerning and the WA Parliament has not yet addressed this issue.

LGBTI Rights

This year, the Labor Party introduced legislation to expunge historical criminal convictions for homosexuality. When the legislation was introduced in October, Mark McGowan issued a public apology to the hundreds of people who were convicted under state laws that banned homosexual acts describing it as active discrimination which ruined lives. The WA Labor Government also threw its support behind the successful camp

[1] Australian Human Rights Commission, Social Justice and Native Title Report 2016, <https://www.humanrights.gov.au/sites/default/files/document/publication/AHRC_SJNTR_2016.pdf>, pp.42-45.