The World Reviews Australia’s Human Rights Record

By Marius Smith

In the early hours of Tuesday, east coast time, Australia’s human rights record will be reviewed by the UN’s Human Rights Council in Geneva as part of the Universal Periodic Review. For the first time, the Castan Centre will be on the floor of the Council to witness the Review.

The UPR subjects every UN member state to a review every 4.5 years. Australia is being reviewed at this session of the Council along with 14 other countries including Rwanda, Nepal and Burma.

UN GenevaDuring Australia’s appearance, representatives from other countries will comment on Australia’s human rights record and make suggestions as to how it can be improved. This time, 110 states have signed up to speak at Australia’s review, which is the fifth greatest number of states for this entire cycle; clearly our human rights record has generated considerable interest around the world.

At the end of the day, Australia will walk away with a long list of recommendations from other nations – in 2011, when Australia had its first review, there were 145 (see paragraph 86). According to an Australian Human Rights Commission report prepared for the 2015 UPR, Australia has fully implemented 10% of those recommendations and partially implemented a further 62%*. Clearly, once the 2015 review is completed, we will need to see a stronger  commitment from the Australian Government to ensure that the new set of recommendations is addressed.

The government submitted its preliminary report for this year’s UPR as required some time ago, but the document does not address many of our nation’s failings. Not surprisingly, a comprehensive report by a coalition of Australian NGOs, which has been endorsed by almost 200 Australian organisations, including ours, and the Australian Human Rights Commission report (link above) pull far fewer punches.

Other states rely on these reports – as well as many face-to-face meetings over the past few months, including with a delegation from the NGO coalition – to help them understand the issues, ask pertinent questions and make important recommendations. A number of countries have also submitted advanced questions to Australia, which helps to give an idea of the problems occupying their attention.

So, what issues are likely to arise when Australia takes its place before the UN’s member states? It is likely to be a diverse set of recommendations on a range of high profile and less mainstream topics, including:

Asylum seekers: The plight of those seeking asylum in Australia has been a high profile topic overseas, and recommendations may include closing the detention centres in PNG and Nauru and processing all claims in Australia, using detention only as a last resort, removing children from detention and ensuring that both processing and detention are subjected to proper legal processes, including judicial review. Concern will likely also be expressed over the lack of transparency, and the harsh secrecy laws surrounding the detention of asylum seekers.

Indigenous affairs: There is likely to be a high level of concern about Indigenous Australians, including the potential closure of remote Indigenous communities; failures in the Native Title system and the Northern Territory Intervention; the need for meaningful Constitutional recognition; the lack of funding for legal services and the National Congress of Australia’s First Peoples; the gap between Indigenous and non-Indigenous Australians in health, education, housing and other areas, and the lack of compensation for the Stolen Generations and Stolen Wages.

Disability: The problems facing people with a disability or mental illness in Australia are myriad. Possible topics for discussion include the need for full funding of the National Disability Insurance Scheme (though the adoption of the NDIS will also attract praise); indefinite detention of people who haven’t been convicted of a crime; the legal gaps allowing sterilisation and treatment of people with a disability without their consent; the need for an independent inquiry into violence in institutional and residential settings; and the need for better supported decision making, better employment support and better access to mental health services.

Women: The shameful level of violence against women is likely to be of great concern to several countries, as are the need for gender equality in the workplace and the gap in retirement savings between women and men.

LGBTI people: In addition to Australia’s failure to enact marriage equality, recommendations may relate to unacceptable levels of harassment and violence against LGBTI Australians, unnecessary surgical interventions on intersex people, adoption by same sex couples and expungement of convictions for consensual homosexual sex nationwide.

Business and Human Rights: In the lead up, a number of countries have taken an interest in Australia’s lack of a National Action Plan on business and human rights.

The Australian Human Rights Commission: A number of states are likely to take an interest in the welfare of the AHRC, as we have seen a reduction in funding for the Commission as well as attacks on the Commission’s independence.

Terrorism laws: Australia’s hyper-legislative approach to counterterrorism will attract interest, with regard to its impact on human rights, including freedom from arbitrary detention, freedom of movement, the right to privacy, and the right to a nationality.

Older persons: There was a lack of emphasis on issues relevant to older persons during Australia’s 2011 review. Indeed, elder rights have been conspicuous in their absence from UPR recommendations generally. This time, we hope to see a focus on the need for laws to prevent elder abuse, the lack of workforce participation by older Australians, and issues of poverty and social isolation in old age.

Many other issues are likely to be raised during the review, including prisoners’ rights, homelessness and poverty, cuts to legal aid funding, children’s rights and the need for a comprehensive national Equality Act (which was begun under the previous government).

Despite the excellent work of the NGO coalition, the AHRC and others, ultimately the list of recommendations that emerge from the review will reflect the issues that are considered most important by the 110 countries slated to speak. Asylum seeker and Indigenous issues are likely to be prominent in Australia’s review, and hopefully we will see recommendations that cover the broad range of human rights issues facing the country. But, even more importantly, the Government must implement more of the recommendations this time around.

Sarah Joseph and Marius Smith have travelled to Geneva thanks to the SACS Consulting Group’s Leadership Awards and the Monash Law Faculty. They will be live tweeting Australia’s appearance from @Castancentre using the hashtag #AusUPR

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 * An earlier version of this post stated that the NGO coalition calculated Australia’s partial implementation of the 2011 recommendations  at 20%, however this may have been a reference to an earlier AHRC figure. The coalition adopts the AHRC’s final figure of 62%.

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