1. Ratifying the Optional Protocol to the Convention Against Torture (Item 2) 1
2. Reviewing reservations to the ICCPR: Article 20 (Item 3) 2
3. Declaration to the ICCPR 3
4. Reservation to CEDAW: Paid maternity leave (Item 3) 4
5. People trafficking (items 43-58) 4
6. National Plan to Reduce Violence Against Women and their Children (Item 100) 5
7. People with disabilities (Items 154-173) 7
8. Right to life 7
9. Endnotes 8
The Government has released an exposure draft of Australia’s National Human Rights Action Plan.
Public comments on the exposure draft have been invited and are due by 29 February 2012.
The draft National Human Rights Action Plan contains 220 action items.
This submission comments on selected items in the action plan that raise concerns.
Ratifying the Optional Protocol to the Convention Against Torture (Item 2)
Australia signed the Optional Protocol to the Convention Against Torture (OPCAT) on 19 May 2009.
If Australia were to ratify OPCAT then Australia would be required to establish a national preventative mechanism (NPM) with powers to visit without warning any place of detention in Australia and to set standards for all aspects of detention facilities.
This would allow unwarranted Commonwealth interference in the running of State detention facilities.
Additionally, Australia would have to allow visits to any place of detention by the International Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
In an address to the Samuel Griffiths Society’s 2010 conference Western Australian Attorney General, the Hon Christian Porter warned that the notion of “torture” likely to be adopted under OPCAT was at odds with the commonly understood meaning of torture.i
He cited a case from the European Court of Human Rights in which it was found that a strict security regime for hardened criminals considered high escape risks in the Dutch prison system violated the right not to be “tortured”. The Court concluded that “the combination of routine strip-searching and the other stringent security measures … amounted to inhuman or degrading treatment”.ii
Mr Porter warned that ratification of OPCAT is likely to make “the safe running of Australian prisons … practically more difficult, particularly if the most dangerous prisoners in the system – imprisoned accordingly in special handling units – cannot be subject to intensive security regimes including regular and random strip-searches”.iii
The States should be left free to manage their own detention facilities without interference from a Commonwealth body mandated under OPCAT, let alone by a UN subcommittee.
The Optional Protocol to the Convention Against Torture should not be ratified.
Reviewing reservations to the ICCPR: Article 20 (Item 3)
Article 20 (2) of the International Covenant on Civil and Political Rights (ICCPR) requires that “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
Australia’s current reservation to this article properly acknowledges that there is a tension between this provision and the rights to hold an opinion, to free expression, to freedom of assembly and freedom of association enunciated in Articles 19, 21 and 22 of the ICCPR.
Removing the reservation could have the effect of requiring the Commonwealth to pass broad anti‑religious vilification laws that could impact adversely on the rights to freedom of belief and expression.
The Victorian Racial and Religious Tolerance Act 2001 already unduly restricts freedom of speech and freedom of religion in Victoria by penalising speech that “incites hatred against, serious contempt for, or revulsion or severe ridicule of incite severe ridicule” of a class of persons based on religious belief or activity.iv
The use of the Racial and Religious Tolerance Act 2001 to date has illustrated the impact of such provisions on fundamental freedoms.
The prolonged action against pastors Daniel Scot and Danny Nalliah in relation to a religious seminar on Islam represents a low point of freedom of religion in Australia. The initial adverse decision by Judge Higgins illustrated the profound hazards to religious freedom posed by laws prohibiting religious vilification.
“VCAT found the seminar was not a balanced discussion, that Pastor Scot presented the seminar in a way that was essentially hostile, demeaning and derogatory of all Muslim people, their God, their prophet Mohammed and in general Muslim beliefs and practices, that Pastor Scot was not a credible witness and that he did not act reasonably and in good faith.”v
Pastor Scot was also prohibited from repeating in speech or writing anywhere in Australia or on the internet any of the statements, and, or alternatively, information, suggestions and implications, to the same or similar effect as those found by the Tribunal to have breached the Racial and Religious Tolerance Act 2001 (Vic).
If Pastor Scot had breached this order he could have faced imprisonment.
The financial burden, time and stress imposed on these two pastors were an intolerable assault on freedom of religion.
Notably, the VCAT findings and orders against the pastors were eventually quashed by the Court of Appeal of the Supreme Court of Victoria.vi
The Court found that Judge Higgins had made numerous errors in his consideration of strictly religious matters and at times had completely misrepresented Pastor Scot’s comments. For example, the Court of Appeal found that Judge Higgins had wrongly asserted that Scot had claimed that “Muslims are demons”. Judge Higgins had failed to follow Scot’s citations from the Quran about jinns (demons) becoming Muslims.
The Supreme Court also found that Judge Higgins had ignored significant sections of Pastor Scot’s seminar which were favourable to Muslims “and ex facie calculated to persuade an audience of non‑Muslims to love … Muslims”.vii
If the pastors had lacked the courage, determination and financial support to initiate a court appeal, Judge Higgins’ orders would have had a chilling effect on any future public statements about Islam, whether accurate or not. The freedom to make statements of a religious nature, not in breach of the provisions of the Racial and Religious Tolerance Act 2001, would have been severely inhibited.
Other cases brought under the Racial and Religious Tolerance Act2001, if less well-known, are just as disturbing. For example, a case was brought by a self-identified witch, against the Salvation Army for delivering an introductory course on Christianity to prisoners who freely chose to participate.viii
Although this case was dismissed reasonably quickly, it nonetheless involved an unnecessary imposition of time, stress and legal costs for the Salvation Army.
Religious vilification laws potentially have a chilling effect on freedom of religion as well as the freedom of expression. They are intolerable in a free society.
Australia was wise to make a reservation to Article 20. Rather than reviewing this reservation with a view to withdrawing it the Commonwealth should be encouraging Victoria to restore the right to freedom of religion and to free expression by repealing the Racial and Religious Tolerance Act 2001.
Australia’s reservation to Article 20 of the ICCPR should be maintained, rather than reviewed.
Declaration to the ICCPR
As well as the reservations to the ICCPR Australia has made an important declaration that states:
Australia has a federal constitutional system in which legislative, executive and judicial powers are shared or distributed between the Commonwealth and the constituent States. The implementation of the treaty throughout Australia will be effected by the Commonwealth, State and Territory authorities having regard to their respective constitutional powers and arrangements concerning their exercise.
Although action item 3 only specifies a review of the reservations it is important to note that this declaration should be retained. The United Nations treaty bodies have a tendency to ignore the federal nature of nations like Australia and to treat them as unitary states making inappropriate demands that the national government does something for which it often has no constitutional power.
This declaration rightly points out the division of power in Australia’s federalist structure.
Australia’s declaration to the ICCPR should be maintained.
Reservation to CEDAW: Paid maternity leave (Item 3)
Australia currently has a reservation to article 11 (2) (b) of the Convention for the Elimination of Discrimination Against Women (CEDAW). The article obliges States Parties:
To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances.
The reservation states that:
maternity leave with pay is provided in respect of most women employed by the Commonwealth Government and the Governments of New South Wales and Victoria. Unpaid maternity leave is provided in respect of all other women employed in the State of New South Wales and elsewhere to women employed under Federal and some State industrial awards. Social Security benefits subject to income tests are available to women who are sole parents.
"The Government of Australia advises that it is not at present in a position to take the measures required by article 11 (2) to introduce maternity leave with pay or with comparable social benefits throughout Australia.
Notwithstanding that the Commonwealth has now introduced a form of paid maternity leave, it is inappropriate to seek to bind future governments to maintaining this hotly contested social policy by means of removing the reservation to this article of CEDAW.
The Gillard government’s Paid Parental Leave scheme is overtly discriminatory against women who choose to be fulltime carers of their children, and particularly against women having a second or subsequent child. It encourages women to return to work about six months after the birth of a child, notwithstanding that there are health benefits to both mother and child from a longer period of time together.
Future governments should be free to formulate public policy on this matter without being hampered by an international obligation favouring paid maternity leave.
Australia’s reservation to Article 11 (2) of CEDAW should be maintained rather than reviewed.
People trafficking (items 43-58)
As early as 2000 the US State Department drew attention to the connection between legalised prostitution in parts of Australia and the trafficking of East Asian women.
Trafficking in East Asian women for the sex trade is a growing problem. Immigration and federal police have developed profiles and identified trends in the industry, but lax laws – including legalized prostitution in parts of the country – make enforcement difficult at the working level.ix
The Age has reported extensively on how:
Chinese organised crime syndicates are running multimillion-dollar prostitution rackets across Melbourne by bribing officials and exploiting abysmal regulation. The syndicates are linked to human trafficking and arrange for dozens of Asian women to travel from interstate and overseas – often on student visas – to work in brothels. In several instances, figures linked to the illegal prostitution syndicates – including Mulgrave woman Xue Di Yan – are also licensed by the Victorian government to run legal brothels.”x
As part of the review of Australian policy and practices on people-trafficking, the Commonwealth should review the link between State laws that permit legalised prostitution and people-trafficking for prostitution.
As part of the review of Australian policy and practices on people-trafficking the Commonwealth should review the link between State laws that permit legalised prostitution and people-trafficking for prostitution.
National Plan to Reduce Violence Against Women and their Children (Item 100)
The National Plan to Reduce Violence Against Women and their Children claims that:
While a small proportion of men are victims of domestic violence and sexual assault, the majority of people who experience this kind of violence are women — in a home, at the hands of men they know.xi
However, the Australian Bureau of Statistics 2005 Personal Safety Survey reports the following data:xii
73,800 women (77.7%) and 21,200 men (22.3%) were physically assaulted in the previous 12 months by a current or previous partner;xiii
125,100 women (67.3%) experienced physical assault by a male perpetrator in a home in the previous 12 months while 60,900 men (32.7%) experienced physical assault by a female perpetrator in a home in the pervious 12 months;xiv
Since the age of 15 years, 105,600 women (69.6%) had experienced physical assault by a current male partner and 46,200 men (30.4%) had experienced physical assault by a current female partner;xv
Since the age of 15 years, 674,700 women (72.2%) had experienced physical assault by a previous male partner and 259,300 men (27.7%) had experienced physical assault by a previous female partner;xvi and
Children of 463,300 women (84.3%) witnessed their mother being subjected to violence by a partner and children of 86,500 men (15.7%) witnessed their father being subjected to violence by a partner.xvii
Overall nearly one in three victims of domestic violence is a male victim of a female perpetrator. In over one in six cases it is “men and their children” who need protection from a female perpetrator.
David Fergusson and his colleagues have reported on an in-depth analysis of women’s and men’s experience of domestic violence at age 25 as part of the Christchurch longitudinal study.xviii
Their findings include:
37.4% of women reported that they perpetrated acts of domestic violence compared to 30.9% of men;
3.9% of women were injured as a result of domestic violence compared to 3.3% of men;
2.5% of women reported being fearful as a result of partner violence compared to 0.3% of men;
Overall adverse mental health outcomes (depression, anxiety and suicidal ideation) are as frequent for men as for women, although women are more likely than men to suffer depression and anxiety;
In many cases there was mutual violence leading Fergusson and his colleagues to observe that “commonly occurring domestic violence may be better conceptualized as an issue relating to violent partnerships rather than violent individuals”.
In considering the policy implications of this study the authors note:
The present study has a number of implications for policies relating to domestic violence. First and foremost, the results provide a further challenge to the dominant view that domestic violence is a "women’s issue" and arises predominantly from assaults by male perpetrators on female victims.
What the findings suggest is that among young adult populations, men and women are equally violent to intimate partners on the basis of reports of both victimization and perpetration for the range of domestic violence examined within this study. Furthermore, the spectrum of violence committed by men and women seems to be similar and there is evidence suggesting that both men and women engage in serious acts of physical violence against their partners. Finally, the consequences of domestic violence in terms of injury and psychological effects were similar for both men and women.
In 2007-08 of a national total of 78 intimate-partner homicides 18 victims were male (23%).xix In 2006-08 one in three (32.3%) victims of intimate partner homicide was male.xx
In the light of this data it is completely inappropriate to assert that only “a small proportion of men are victims of domestic violence” and to have a national plan targeted only at protecting “women and their children” rather than all persons at risk of family violence. This runs the risk of obscuring the reality of family violence perpetrated by women and making male victims of family violence invisible or more likely to be overlooked. Both men and women are victims of family violence. Both men and women are perpetrators of family violence. Perpetuating and entrenching a one-sided, gendered, discriminatory account of family violence will not help reduce family violence or assist government agencies to respond adequately to all victims of family violence regardless of the sex of the victim or of the perpetrator.
The National Plan to Reduce Violence Against Women and their Children should be replaced by a National Plan to Reduce Family Violence which aims at protecting all victims of family violence including men and their children.
People with disabilities (Items 154-173)
Article 10 of the Convention on the Rights of Persons with Disabilities which has been ratified by Australia provides that:
States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.
This provision is not reflected in the practices of eugenic abortion and pre-implantation genetic diagnosis of human embryos which, sadly, are not only widespread in Australia but in some jurisdictions explicitly permitted by law.
The National Human Rights Action Plan should include reflection on the entrenched discrimination against persons with disabilities inherent in these practices and a resolution to amend laws and policies which permit them to continue.
At the Commonwealth level the payment of Medicare benefits for abortion includes payments for eugenic abortions. As all intentional direct abortions are a violation of the right to life the appropriate policy response would be to remove the relevant items (16525 and 35643) from the General Medical Services Table.xxi
Commonwealth law also permits non-beneficent, destructive experimentation on human embryos diagnosed as having a disability as one category of so-called “excess ART human embryos”.xxii This provision should be repealed.
A review of all laws which permit or fund eugenic abortions or which authorise experimentation on human embryos with disabilities should be undertaken with the goal of protecting fully the right to life of all persons with disabilities, including human embryos and unborn children.
Right to life
More broadly, laws in various jurisdictions positively permit abortion – the killing of a child before birth and destructive experimentation on human embryos. Medicare funds abortions including in the second trimester of pregnancy.
These laws are incompatible with the most fundamental human right – the right to life.
Any National Human Rights Action Plan which fails to review laws which permit the widespread violation of the right to life is not worthy of the name.
The National Human Rights Action Plan should include a review of all laws which permit or fund abortions or which authorise experimentation on human embryos, with the goal of protecting fully the right to life of all persons, including human embryos and unborn children.
i. Porter, C, “ Parliamentary Democracy, Criminal Law and Human Rights Bodies”, Upholding the Australian Constitution, Samuel Griffith Society, 2010, Vol 22, Ch 11, pp 126-149: http://samuelgriffith.org.au/docs/vol22/vol22chap11.pdf
ii. Van der Ven v The Netherland  ECHR 50901/99 (4 February 2003).
iii. Porter, C, “ Parliamentary Democracy, Criminal Law and Human Rights Bodies”, Upholding the Australian Constitution, Samuel Griffith Society, 2010, Vol 22, Ch 11, pp 145: http://samuelgriffith.org.au/docs/vol22/vol22chap11.pdf
iv. Section 8.
v. Islamic Council of Victoria v Catch the Fire Ministries Inc (Anti Discrimination - Remedy)  VCAT 1159 (22 June 2005), Annexure: http://www.austlii.edu.au/au/cases/vic/VCAT/2005/1159.html
vi. Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc  VSCA 284 (14 December 2006): http://www.austlii.edu.au/au/cases/vic/VSCA/2006/284.html.
vii. Ibid., para 77.
viii. Fletcher v Salvation Army Australia (Anti Discrimination)  VCAT 1523 (1 August 2005): http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2005/1523.html
ix. “Australia. F. Trafficking in Persons”, 1999 Country Reports on Human Rights Practices, Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Released February 25, 2000.
x. Nick McKenzie and Maris Beck, “The secret world of Melbourne's sex trade “, The Age, 5 Mar 2011: http://www.theage.com.au/victoria/the-secret-world-of-melbournes-sex-trade-20110304-1bi88.html
xi. National Plan to Reduce Violence Against Women and their Children, 2011, p 1: http://www.fahcsia.gov.au/sa/women/progserv/violence/nationalplan/Documents/national_plan.pdf
xii. Personal Safety Survey Australia 2005, Australian Bureau of Statistics, Cat. No. 4906.0, Reissued 21 August 2006: http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/056A404DAA576AE6CA2571D00080E985/$File/49060_2005%20(reissue).pdf
xiii. Ibid., p 9.
xiv. Ibid., p 10.
xv. Ibid., p 30.
xvii. Ibid., p 40.
xviii. Fergusson D M, Horwood L J, Ridder E M., “Partner violence and mental health outcomes in a New Zealand birth cohort”, Journal of Marriage and the Family, 2005, 67, pp 1103-1119: http://www.ingentaconnect.com/content/bpl/jomf/2005/00000067/00000005/art00001
xix. Virueda M and Payne J, Homicide in Australia: 2007-08 national homicide monitoring program annual report, Australian Institute of Criminology, 2010, Table 10, p 20: http://www.aic.gov.au/documents/8/9/D/%7B89DEDC2D-3349-457C-9B3A-9AD9DAFA7256%7Dmr13_003.pdf
xx. Dearden J & Jones W, Homicide in Australia: 2006-07 national homicide monitoring program annual report, Australian Institute of Criminology, 2008, p 57: http://www.aic.gov.au/documents/F/F/B/%7BFFB9E49F-160F-43FC-B98D-6BC510DC2AFD%7Dmr01.pdf
xxi. Health Insurance (General Medical Services Table) Regulations 2011, Select Legislative Instrument 2011, No. 187.
xxii. Research Involving Human Embryos Act 2002, Section 20.