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Chapter 10

HUMAN RIGHTS

The Government's fundamental commitment to human rights underpins the Justice Statement.

To ensure that all Australians are able to enjoy basic human rights, the Government will:

The Commonwealth Government is committed to doing all that it can to make the enjoyment of fundamental human rights a reality for all Australians. The Federal Labor Government has a proud record of ongoing achievement over its twelve years in office. Our primary focus is equality of opportunity.

While the enactment of the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984 are long-standing Labor achievements, the Government has continued to work actively to protect human rights in recent years. In 1992, the Government enacted the Disability Discrimination Act to provide a comprehensive national regime of protection against discriminatory practices for people with a disability. The Government also established an office of the Disability Discrimination Commissioner as part of the Human Rights and Equal Opportunity Commission, and set up a network of specialised legal centres to assist people to make complaints under the Act. The legislation has already had a significant impact. For example, partly as a result of complaints received under the Act, the Australian Transport Ministers recently announced the establishment of a process designed to lead to a more accessible public transport system.

In 1993, the Government legislated to create the office of the Aboriginal and Torres Strait Islander Social Justice Commissioner. We recognised that there was a need to ensure that the focus and momentum to achieve real change for Aboriginal and Torres Strait Islander people, started by the Royal Commission into Aboriginal Deaths in Custody, was not lost. The Commissioner appointed to that office has already played a major role in keeping Aboriginal and Torres Strait Islander social justice issues in the forefront of public debate.

The Government has demonstrated its firm commitment to ensuring that existing anti-discrimination legislation remains relevant and effective. The Sex Discrimination Act was amended in 1992 and the Government has recently introduced further amendments.[1]

There is a continuing review into the operations of the Human Rights and Equal Opportunity Commission. Legislation has been introduced to streamline the administrative operations of the Commission as the first stage of the Government's response to that review. One of the functions of the review is to examine the delays in hearing complaints and address ways to overcome this problem. The review is expected to be finalised shortly.

There has also been other significant legislative reform, such as the Human Rights (Sexual Conduct) Act 1994. The Act asserts the freedom of private adult sexual conduct from arbitrary interference by government. Passed by large majorities in both Houses of Parliament, this legislation made apparent our resolve to ensure that fundamental privacy rights are protected for all Australians.

The introduction of the Racial Hatred Bill is a further example of this Government's commitment to protect racial and ethnic minorities from racist violence and slurs.

The States and Territories have now agreed with the Commonwealth to specifically ban female genital mutilation. All States and Territories have now moved towards enacting specific legislation. New South Wales and South Australia have already passed legislation, others such as Victoria, Queensland, Tasmania, the Australian Capital Territory and the Northern Territory have announced that they will legislate and the Western Australian Attorney-General has now advised that specific legislation may also be appropriate for Western Australia. The States have agreed with the Government that the commencement of the legislation should be preceded by an appropriate education program. A model uniform offence is being prepared by the Model Criminal Code Officers Committee of the Standing Committee of Attorney-Generals which should become the basis for a uniform approach. The model provision will be considered by the Standing Committee at its July 1995 meeting.

In 1993, the Human Rights and Equal Opportunity Commission reported on the Human Rights of People with Mental Illness. The Government's response to that report included a doubling of its financial commitment with some $250 million over a four year period, targeted to improving mental health services. The Commonwealth is also involved with State and Territory Governments in the review of current mental health legislation. In this regard, the Commonwealth has funded the development of a model mental health code. The model code will address the rights and responsibilities contained in the United Nations' Principles for the Protection of People with Mental Illness and for the Improvement of Mental Health Care and the National Mental Health Statement of Rights and Responsibilities, and will help to promote uniformity across Australian jurisdictions.

Another major achievement was the enactment, in 1993, of the Native Title Act. The High Court has recently endorsed resoundingly the constitutional validity of this landmark legislation. The High Court's decision in the Mabo case - that the common law of this country had always recognised the native title of its first inhabitants - presented the nation with a challenge. That challenge was to recognise and embrace native title. At the same time, it was necessary to create a system whereby these rights and the rights of all Australians to certainty of land ownership could operate in harmony. The Commonwealth Government accepted that challenge and the creative and innovative Native Title Act was the result.

The High Court has handed the Commonwealth a further significant challenge with its decision in Brandy v the Human Rights and Equal Opportunity Commission. That decision requires changes to the procedures for the determination and enforcement of discrimination complaints. The Government has expanded the review of the Human Rights and Equal Opportunity Commission to enable these issues to be considered. The review is currently consulting with interested groups about reform options. The Government anticipates introducing legislation later this year to respond to the High Court's decision. The Commonwealth remains committed to ensuring that adequate cost-effective mechanisms exist to enforce orders relating to breaches of anti-discrimination legislation.

Equality of access to the justice system for all is a fundamental human right. All of the initiatives announced in this Justice Statement will help to make that a reality. There are, however, a number of proposals that focus on breaking down barriers for particular sections of the community.

DISCRIMINATION

HUMAN RIGHTS AND DISCRIMINATION LAW CENTRE

A Human Rights and Discrimination Law Centre will be established as a new specialist community legal centre.[2] The Centre will service a wide range of clients across a variety of areas of discrimination and human rights law - including women, older people, clients from racial, ethnic or religious minorities, Aboriginal and Torres Strait Islander clients, lesbians, gay men, people with disabilities, children and the mentally ill.

In light of the Brandy case, new mechanisms for discrimination complaints will have to provide for a greater role for courts in discrimination claims. The need for specialist advice and legal assistance to parties involved in discrimination complaints is therefore expected to increase with the introduction of new processes for determining complaints. The establishment of the Human Rights and Discrimination Law Centre is a significant step towards meeting those needs, making advice and legal assistance more readily available for parties involved in such proceedings.

The Centre will provide advice, as well as undertake advocacy and representation of clients. It will also collect information relating to discrimination and human rights issues, making primary United Nations material and other key human rights publications available, and assisting individuals and groups in their claims.

The Centre will also carry out community legal education, providing training and developing materials for other lawyers and organisations in discrimination and human rights law and practice. The Centre will be expected to undertake a range of different projects across a broad spectrum of human rights issues. In its first year of operation, the Centre will be provided with additional funding to undertake a project reviewing the issue of discrimination on the grounds of sexual preference, including financial and property-related issues.

The Government will provide funding for four staff to establish the Human Rights and Discrimination Law Centre.[3] This Centre will significantly enhance the availability of advice on discrimination and human rights law matters in the community.

The new centre will be funded on the basis of established criteria and submissions will be sought from community groups interested in providing this service.

DISABILITY STANDARDS UNDER THE DISABILITY DISCRIMINATION ACT

Access to justice for people with a disability must be about providing, to the maximum extent possible, equality of opportunity. The Disability Discrimination Act seeks to promote recognition and acceptance of the principle that people with disabilities have the same fundamental rights as the rest of the community. Under the Act, people with a disability who are discriminated against can make a complaint to the Human Rights and Equal Opportunity Commission.

The experience of anti-discrimination law in Australia dealing with disability discrimination suggests that complaints-based mechanisms do not effectively address systemic discrimination. Such mechanisms focus primarily on a particular situation and rely on those who may be marginalised victims of discrimination to bring a complaint and follow it through the process.

The Disability Discrimination Act provides for Disability Standards to be set in certain areas covered by the Act. These areas are employment, education, accommodation, public transport, and the administration of Commonwealth laws and programs. These Standards are designed to deal with systemic discrimination without the need to resort to a complaints-based process through the Human Rights and Equal Opportunity Commission.

A Disability Discrimination Act Standards Working Group, which includes representatives from the disability community, has been established to advise on the development of Standards. The Working Group has sought the assistance of established groups with suitable expertise in relation to specific standards. For example, parties such as the Australian Chamber of Commerce and Industry, the Business Council of Australia and the Australian Council of Trade Unions, as well as the disability community and governments, are represented on a group considering the issue of Standards in employment.

Over time, the development of Disability Standards should reduce significantly the number of complaints being handled by the Commission under the Disability Discrimination Act. The Standards should save people with a disability the cost and difficulty of litigating individual cases. They also should reduce costs to both Government and industry, and provide greater certainty for business and industry in relation to their responsibilities under the Act.

The Government will ensure that wide-ranging consultation takes place to develop Disability Standards. In particular, consultation will occur with the States and Territories, the disability community, business and industry, unions and the general community. By involving all elements of the community in the Standards development process, it is expected that the resulting Standards will have the widest possible acceptance.

The development of Disability Standards is designed to build upon the Commonwealth's own plan to make mainstream Commonwealth Government services accessible for people with a disability. That plan, entitled the Commonwealth Disability Strategy, was endorsed by the Government in November 1994.

REVIEW OF THE RACIAL DISCRIMINATION ACT

This year sees the 20th anniversary of the enactment of the Commonwealth Racial Discrimination Act 1975. The Act established a mechanism by which people can make complaints regarding discrimination on the basis of race, colour, descent or national or ethnic origin, and it continues today to serve an important function of safeguarding racial tolerance in Australia.

In recognition of the significance of this landmark Commonwealth legislation in the area of discrimination law, the Race Discrimination Commissioner is undertaking a review of the legislation. The Review will examine the procedures and operation of the Act, and consider the need to amend the legislation to ensure that it provides an efficient and effective mechanism for dealing with race discrimination.

Together with other activities that the Government and the Human Rights and Equal Opportunity Commission are planning to mark the anniversary of the Racial Discrimination Act, the review of the legislation should increase the level of public awareness and understanding of racial discrimination, and the role of the legislation in dealing with racism.

The Racial Discrimination Act will be reviewed to examine the procedures and operation of the Act, and consider the need to amend the legislation to ensure that it is an efficient and effective mechanism to deal with race discrimination.

CHILDREN

Australia's children embody the promise of our future as a nation. We hold a privileged position of trust and authority with respect to our children, and we must respond to that position with protection and care, both by recognising their vulnerability and by protecting their rights. That dual focus underlies a series of steps that the Government is proposing with the objective of reinforcing that protection and care. A number of initiatives have already been undertaken. In January 1991, the Convention on the Rights of the Child entered into force for Australia and our first Report under that Convention is nearing completion.

In this Statement, specific attention has been given to the legal needs of children. The reforms that substantially extend access to family services will benefit thousands of children by improving their home environments and reducing family conflicts.[4] Concern for the legal needs of children is also reflected in the decision to designate four children's/youth advocates within the Community Legal Centre Program who will provide a range of legal services to children including advice and legal representation.[5]

Important research has been done and remains to be done, in examining the best ways that the Commonwealth can act to protect the interests of children. The Australian Law Reform Commission has just completed a Report, For the Sake of the Kids, which is a comprehensive review of the problem of complex access cases in the Family Court. The Commission recommends a range of the repetitive applications and court appearances that such cases of entrenched conflict and protracted litigation involve.

The thrust of the Commission's recommendations support the refocusing of the Family Law Act 1975 onto the rights of children and the responsibilities of parents. This will be accomplished by the Family Law Reform Bill. Two of the Commission's recommendations specifically support other initiatives in this Statement - the establishment of an alternative dispute resolution advisory council,[6] and the establishment of handover assistance and facilitated handover centres contact arrangements,[7] are among the initiatives that will help provide better access to services for children caught up in difficult disputes about contact with separated parents.

The Commonwealth will soon table the Commission's Report and seek public response to the Report's recommendations.

Australia has an obligation to protect children in their dealings with the justice system. In order to understand how we can best meet these obligations, it is necessary to review the position of children before courts and tribunals in Australia, examine such questions as whether children are adequately and effectively represented in court in matters concerning them, and examine whether our legal system deals appropriately with the special position, needs and interests of children.

The Commonwealth will provide the Australian Law Reform Commission with new terms of reference to examine and report on children and the legal process.
Children are often forgotten when we consider how effectively the legal system serves the needs of our community. We will ask the Commission to review the way our courts and tribunals serve the interests of children.

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES

INQUIRY INTO THE REMOVAL OF ABORIGINAL AND TORRES STRAIT ISLANDER CHILDREN

Under past assimilationist policies, many Aboriginal children were separated from their families. The 1994 Australian Bureau of Statistics survey of Aboriginal and Torres Strait Islander people revealed that over 10% of Aboriginal people over the age of 25 reported being separated and raised in isolation from their natural families.

The Minister for Aboriginal and Torres Strait Islander Affairs indicated after the `Coming Home' conference in 1994 that the Government would consider a study into the effects of this policy and related social welfare issues.

The Human Rights and Equal Opportunity Commission is an ideal body to undertake an inquiry into this issue. The Commission's functions include reporting to Government on issues relating to human rights. The Commission has conducted a number of inquiries over the years, including the recent inquiry into the Human Rights of People with Mental Illness.

The Inquiry will be established to trace the practices that resulted in the compulsory separation of Aboriginal and Torres Strait Islander children from their families, and examine the need for any changes in current laws or practices to assist people in locating and reunifying their families. The Inquiry also will examine policies relating to the placement of Aboriginal and Torres Strait Islander children today, and advise on any appropriate changes.

It is hoped that the inquiry will be a significant step towards healing and reconciliation between indigenous and non-indigenous Australians.

ABORIGINAL AND TORRES STRAIT ISLANDER
SOCIAL JUSTICE COMMISSIONER

The position of the Aboriginal and Torres Strait Islander Social Justice Commissioner (the Social Justice Commissioner) was established in the Human Rights and Equal Opportunity Commission in 1993.

The role of the Social Justice Commissioner is integral to the advancement of basic human rights for Aboriginal and Torres Strait Islander people.

The Social Justice Commissioner's statutory functions are wide-ranging. They include promoting discussion and awareness of human rights in relation to Aboriginal and Torres Strait Islander peoples. They also include the undertaking of research and educational programs, and the examination of legislation to assess its impact on human rights for Aboriginal and Torres Strait Islander peoples.

In practical terms, this can encompass activities as broad as scrutiny of the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody. The Commissioner makes an active contribution to the objectives of the Council for Aboriginal Reconciliation Act 1991. He also is active in advising on the Native Title Social Justice package. In April 1995, the Social Justice Commissioner sent a submission, Indigenous Social Justice Strategies and Recommendations, to the Commonwealth Parliament. The Social Justice package is the third stage of the Government's response to the decision of the High Court in the Mabo case. In consultation with the Race Discrimination Commissioner, the Social Justice Commissioner also monitors complaints made by indigenous peoples under the Racial Discrimination Act 1975.

This is a challenging mandate for which the Social Justice Commissioner is not adequately resourced at present. With additional resources, the Social Justice Commissioner will be better able to fulfil his core statutory functions.

It is expected that the Commissioner will better fulfil his statutory duties by:

The Government will provide $1.3 million over four years to enable the Aboriginal and Torres Strait Islander Social Justice Commissioner to properly carry out his statutory functions.

NATIONAL ABORIGINAL JUSTICE ADVISORY COMMITTEE

The Royal Commission into Aboriginal Deaths in Custody recommended that each State and Territory establish an Aboriginal Justice Advisory Committee. The role of these committees is to provide governments with independent advice on Aboriginal perceptions of criminal justice matters and on the implementation of the recommendations of the Royal Commission.

Most States and Territories now either have established such committees or have committees that carry out similar roles. The Government recognises that there would be merit in greater coordination and communication between these State and Territory committees, which would be facilitated by a National Aboriginal Justice Advisory Committee.

The role of such a Committee would be to provide a mechanism for representatives of State and Territory Aboriginal Justice Advisory Committees to meet in a regular national forum. The National Committee would provide the State and Territory Attorneys-General with broad strategic advice on national Aboriginal criminal justice issues. It also would provide an opportunity for State and Territory representatives to exchange information on current issues and implementation of the Royal Commission's recommendations. It is envisaged that such a committee would meet three times per year.

HUMAN RIGHTS CONSULTATION AND COORDINATION

AUSTRALIA'S NATIONAL ACTION PLAN

Australia has a National Action Plan for human rights that proposes government measures across a full range of civil, political, economic and social rights. The Plan represents Australia's statement to the international community about Australia's human rights objectives.

Some of the rights included in the National Action Plan are the rights of indigenous peoples, of children and women, as well as the right to health and education.

The Plan identifies the features of current Australian policy in particular areas and most importantly identifies the challenges ahead and possible future action to be taken by the Australian Government.

Australia's Plan was tabled in Geneva in February 1994 at the 50th session of the Commission on Human Rights. The Plan is updated each year, and will be reviewed in five years time. The Plan is prepared jointly with the Department of Foreign Affairs and Trade, after consultation with other relevant Commonwealth departments and peak non-government organisations.

HUMAN RIGHTS FORUM FOR NON-GOVERNMENT ORGANISATIONS

Human rights issues affect all Australians. The Government has the responsibility for protecting and monitoring human rights in Australia, and for providing comprehensive reports to United Nations treaty bodies. The Government liaises extensively with the States in preparing those reports, and also consults with non-government organisations within Australia. Non-government organisations play an important role in notifying the Federal Government of specific human rights concerns.

Non-government organisations currently meet regularly in a Forum to consider human rights from the international perspective. Such a forum would be useful for the discussion of human rights issues from a domestic perspective.

The Government will establish a regular Forum for non-government organisations to participate in and to discuss domestic human rights concerns.
The Forum will provide non-government organisations with a new and focussed opportunity to exchange information, and to discuss domestic human rights issues and developments. Also, the Forum will enable the Government to involve non-government organisations more directly in the process of the preparation of Australia's treaty reports. Reports from non-government organisations could be presented at the Forum, providing additional information for the development of the treaty report.

SCAG WORKING GROUP ON HUMAN RIGHTS

Human rights is an area of State and Commonwealth responsibility. Internationally, Australia speaks with one voice on human rights matters while, at home, in addition to the Commonwealth, each State has human rights responsibilities and programs.

As well as the Commonwealth, virtually all Australian States have legislation prohibiting discrimination. The States also have responsibilities for areas raising human rights issues on which the Commonwealth provides international reports to United Nations treaty bodies. The Government currently liaises extensively with the States in the preparation of Australia's treaty reports. The Government also liaises with the States in preparing Australia's responses to communications to these treaty bodies by individuals.

Greater co-operation between the Commonwealth and the States in this area could advance the human rights of all Australian citizens. To this end, at the next meeting of the Commonwealth and State and Territory Attorneys-General, the Commonwealth will propose the establishment of a Working Party on Human Rights.

The Commonwealth will propose the establishment of a Working Party on Human Rights at the next meeting of the Commonwealth and State and Territory Attorneys-General. The aim of this Working Party will be to improve national coordination on human rights issues.
The Working Party on Human Rights would have the task of working towards a coordinated national strategy on human rights, and would also provide a firm base for future co-operation in satisfying Australia's international human rights responsibilities.

FAMILY FINANCIAL VULNERABILITY

The issue of financial decision-making within families, and the possibility that some family members may be inappropriately pressured into financial arrangements that are to their personal detriment, have been the subject of recent debate and concern in the community.

The Australian Law Reform Commission Report, Equality Before the Law, found that within families, women were sometimes pressured by their partners into guaranteeing financial obligations that their partners incurred, possibly with later serious financial repercussions for the women. Women in these circumstances may inherit this `sexually transmitted debt' - in the form of loan guarantees, mortgages, hire purchases and so on - without their consent and even without their knowledge. In its Second Report the Commission made a series of recommendations on this issue and the Government is currently seeking views on these recommendations.

The Government has responded to concerns about women and debt recently with reforms in corporate law and in bankruptcy law.[8]

Problems of inappropriate financial pressure within families have also been reported in research examining the legal needs of older Australians. Older members of our community may find themselves vulnerable to financial demands or pressure from family members which they find difficult to resist, but which may have a direct and dramatic effect on their own opportunities, lifestyle and financial security. Older people already face the prospect of dealing with a wide range of Government bodies and other services, and may have difficulty obtaining appropriate advice and assistance which would properly equip them to evaluate their options and make informed choices in their financial decision-making. Both groups need mechanisms and structures to provide a greater range of advice and guidance on such matters as who they can ask about where they can get help, and safeguards to protect them in their financial dealings.

The Government is concerned to ensure that the Commonwealth is taking all the steps which are appropriate to protect the interests of both women and older people in these situations. To achieve this goal, the Government is proposing to bring together an Expert Group of people with a background and expertise in financial law and policy.

The Government will establish an Expert Group to review the options for Commonwealth action responding to the particular financial problems faced by certain family members, namely women and older people.
The Expert Group will prepare a report to Government, assessing the most appropriate and effective options for implementing reforms in this area that will provide greater protection for the financially vulnerable.

LEGAL ISSUES FACING OLDER AUSTRALIANS

Our legal system needs to reflect a greater concern to ensure that the legal needs of older people are properly identified and adequately met. Older people may face particular problems in accessing the legal system - perhaps in locating services which have the necessary expertise to provide the advice or assistance they require, or perhaps in the way they are treated by service providers. New legal issues also arise for people as they grow older, such as retirement accommodation issues, or financial decision making issues.

For example, the death of the spouse of an older person has a range of legal and financial repercussions. Often, without preparation, a person can be left to cope with the mystifying issue of probate and to operate in an increasingly complex market for financial retirement products. The Federal Bureau of Consumer Affairs has updated a guide containing helpful information on issues from financial planning to funeral arrangements for older citizens left without their partner. The guide, `On the Death of a Partner', has been put together with the support of a number of community and other organisations.

This cooperative effort should be followed in other areas. The first step towards ensuring that the legal needs of older people are met is to identify the particular concerns and issues that arise for older Australians. We need to hear the views of older people about the legal problems they encounter.

The Government will organise a Forum later this year to review the legal needs of older people, and to discuss appropriate action to meet those needs.
The program for the Forum will be finalised after consultation with relevant organisations. Possible topics for discussion include the accessibility of legal services, the expertise and attitudes of legal professionals, and the availability of information on the key legal issues affecting older people.

The Government's initiatives in this area demonstrate our continued commitment to ensure that fundamental human rights are enjoyed by all Australians.

The establishment of a new discrimination law centre will make anti-discrimination rights more meaningful as they will provide services to assist people to pursue their anti-discrimination law claims. The Government's commitment to the development of Disability Standards is a step towards addressing the problems of systemic discrimination in our society. A number of initiatives in this Statement are part of the Government's continuing commitment to reconciliation with Aboriginal and Torres Strait Islander peoples.

Improved coordination between government and non-government organisations on human rights matters will flow from initiatives in this Statement. In particular, measures in this Statement will ensure that the particular financial problems experienced by women and older people will be addressed, and a forum on issues concerning older people will help identify possible action to meet these problems.


Endnotes

[1] See `National Women's Justice Strategy'

[2] See `Legal Aid'

[3] See `Legal Aid'

[4] See `Families'

[5] See `Legal Aid'

[6] See `Resolving Disputes'

[7] See `National Women's Justice Strategy'

[8] See `National Women's Justice Strategy'


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