By Adam Fletcher
Last week (on Human Rights Day) the Government released the final version of its National Human Rights Action Plan – a major piece of the puzzle known as the Human Rights Framework. In adopting an Action Plan rather than a charter of rights, Australia joins a mixed bag of countries which, with few exceptions, prefer non‑binding statements of intent to legally enforceable rights. Even where there are actual commitments in this Plan, only a third have definite timeframes.
Still, the Plan is a welcome initiative which at least shows that the federal Government, along with the States and Territories featured in the Plan, are paying attention to the implications of their policies for human rights. The most disappointing aspect of the Action Plan is that NSW, WA & Queensland “elected not to contribute.” So if you live anywhere on the east or west coast of Australia, your State Government clearly does not believe it is worth contributing to a national plan to “create an inclusive society where all are valued and all have the opportunity to participate fully regardless of factors, such as age, gender, race, religion or disability.” Does that sound right to you? To me, it sounds scandalous.
Representatives of those State Governments might protest that the Action Plan is a needless exercise in restating existing policy. Yet how can we even know whether they have policies in place to improve human rights outcomes if they refuse to engage in such an exercise? It is certainly a lot more accessible and convenient than checking their media releases in the hope of finding relevant announcements and pledges. The Action Plan also sets accountability benchmarks and timeframes – at least for some of the policies it contains. Perhaps the Governments refusing to participate dislike this aspect of it.
Having said that, the plan contains many positive measures which the Government should be encouraged to implement as soon as possible. For example, there is significant funding for the Australian Human Rights Commission to help it in its anti‑discrimination and disability work as well as its education function. There is also funding for an expanded Family Violence program, including new specialist federal court services.
There is provision for more human rights education in primary and secondary schools, which is crucial to developing a culture of respect for human rights. Unfortunately though, this is not accompanied by a comprehensive review of what is currently being taught and how much teachers already know, which the Castan Centre has consistently recommended.
Victims of Federal or Victoria Police violence can expect better accountability, although there is no commitment to truly independent investigations of police misuse of force, which I have previously argued is sorely needed, nor are there any pledges from other Police forces.
There’s more funding for programs to assist victims of people trafficking, though not free Legal Aid as recommended by the UN Special Rapporteur on Trafficking in Persons. $3.4 billion is committed to the Stronger Futures scheme, though many would dispute whether that program complies with human rights given it involves continuing intervention in NT Indigenous communities. There is also funding for immigration detention, which is an even less appropriate inclusion in a Human Rights Action Plan.
There is a commitment to achieve 40% representation of women in Government Boards by 2015, and the Government has also undertaken to encourage the Defence Forces and the private sector to do more for gender equality.
Another vital – if not particularly sexy – measure is the commitment to improve data collection and analysis. This is a constant issue for Government in Australia, which is highlighted when it has to report to the UN Human Rights Treaty Bodies. The data collection and analysis done by, for example, the Institute of Criminology or the Institute of Health and Welfare provide invaluable raw material for policy development in the areas of criminal law and health policy, and those developing human rights and social welfare policies need similar resources to ensure they get it right.
Naturally there are omissions, and it would be remiss of me not to point some of them out here.
For example, those who are unable to get a remedy through domestic channels for human rights abuses, yet find vindication by making successful complaints to the UN Treaty Bodies, still don’t have any commitment from the Government to provide effective remedies (as the treaties require). Still, there is at least a commitment to maintain a database of Treaty Body recommendations, which allows the public to see what the UN experts have recommended.
Although Optional Protocols to the Convention against Torture and the Convention on the Rights of the Child get a guernsey, the Optional Protocol to the International Covenant on Economic, Social and Cultural (ESC) Rights is left out. Australia has voluntarily assumed obligations under the Covenant, so it should be prepared to permit UN oversight of its implementation of those obligations, just as it does from other treaty bodies on other obligations. Instead, it seems that the government is sticking to the outmoded view of ESC rights as being non-justiciable, leaving itself far behind many States which have far fewer resources, such as South Africa and most of South America. Incidentally, the Government’s attitude towards ESC rights is also reflected in the Exposure Draft of the new Anti-discrimination Bill, which says the Commonwealth cannot be sued for breaches of ESC rights.
Overall, the National Human Rights Action Plan is a useful document, which was developed after a praiseworthy consultation process. Yet the failure of Governments representing more than 60% of the Australian population to contribute, along with the lack of performance measures or accountability measures for the majority of the commitments in the Plan, mean it is no substitute for strong legal human rights protections.
PS This will be my last post as Manager of the Accountability Project. Thanks to all who have been reading over the past 18 months; it has been a pleasure.