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					Achieving SMART Action on Human Rights
Submission on the Exposure Draft of the National Human Rights Action Plan




March 2012




                                                             www.hrlc.org.au
                                       Freedom. Respect. Equality. Dignity. Action.
Contact
Anna Brown and Rebekah Farrell
Human Rights Law Centre Ltd
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Melbourne VIC 3000



T:   + 61 3 8636 4456
F:   + 61 3 8636 4455
E:   anna.brown@hrlc.org.au
W:   www.hrlc.org.au




About the Human Rights Law Centre
The Human Rights Law Centre is an independent, non-profit, non-government organisation
which protects and promotes human rights.

We contribute to the protection of human dignity, the alleviation of disadvantage, and the
attainment of equality through a strategic combination of research, advocacy, litigation and
education.

The HRLC is a registered charity and has been endorsed by the Australian Taxation Office as a
public benefit institution. All donations are tax deductible.




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                  Human Rights Law Centre | Submission: Achieving SMART Action on Human Rights




Contents
1.   Executive Summary                                                                        1
     1.1   Scope of this submission                                                            1
     1.2   HRLC input into NHRAP process                                                       1
     1.3   Summary of Recommendations                                                          2
2.   General Comments on the Draft NHRAP                                                      6
     2.1   The importance of structure                                                         6
     2.2   Actions need to be goal and objective orientated and drafted with specificity       7
     2.3   Actions should fall within the responsibility of an agency                          8
     2.4   Actions should have projected target dates for completion                           9
     2.5   Actions should be monitored through a comprehensive set of indicators.             10
     2.6   Gaps in thematic areas addressed by the NHRAP                                      11
     2.7   Intersectionality                                                                  11
     2.8   UPR recommendations                                                                12
     2.9   State and Territory actions                                                        12
3.   Protection and Promotion of Human Rights in Australia                                    13
     3.1   Improving data collection and analysis                                             13
     3.2   Australia’s international human rights commitments                                 13
     3.3   Legal protections                                                                  15
     3.4   Australia’s Human Rights Framework                                                 15
4.   The Human Rights Concerns of the General Community                                       17
     4.1   Torture                                                                            17
     4.2   Access to justice                                                                  17
     4.3   Counter-terrorism                                                                  18
     4.4   The use of force by police                                                         18
     4.5   Poverty                                                                            19
     4.6   Mental health care                                                                 20
5.   Human Rights Experience of Specific Groups in Australia                                  21
     5.1   Aboriginal and Torres Strait Islander Peoples                                      21
     5.2   Women                                                                              23
     5.3   Children and young people                                                          23
     5.4   Older people                                                                       23
     5.5   Gay, Lesbian, Bisexual and Sex and/or Gender Diverse People                        24
     5.6   People at risk of experiencing homelessness                                        25
     5.7   People with disability                                                             26
     5.8   People in prisons                                                                  27
     5.9   Refugees, asylum seekers, migrants and people from culturally and linguistically
           diverse backgrounds.                                                               28
6.   Governance, Monitoring & Evaluative Mechanisms                                           29
     6.1   The importance of governance and monitoring of implementation                      29
     6.2   Inter-departmental committee                                                       29
     6.3   Ministerial taskforce                                                              29


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     6.4    Public annual report                                                         30
     6.5    State and Territory Governments                                              30
     6.6    Civil society participation                                                  30
     6.7    National conference                                                          31
     6.8    Evaluation                                                                   31
     6.9    Performance indicators                                                       32
     6.10   OHCHR Framework as the foundation for monitoring and evaluation.             34
7.   Resourcing the NHRAP                                                                34
     Appendix A                                                                          36




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1.      Executive Summary
1.1     Scope of this submission

The Human Rights Law Centre (HRLC) welcomes the opportunity to provide this submission to the
Commonwealth Attorney-General’s Department on the exposure draft of a new National Human
Rights Action Plan (the Draft).

The HRLC considers the NHRAP to be a central to achieving sustained practical action and improved
policy development to increase the protection and promotion of human rights in Australia. To be
effective, the NHRAP must avoid the mistakes of past action plans and strike the balance between
responding to key human rights issues while ensuring that actions are developed that are achievable
and realistic within defined timeframes. It is also important that the NHRAP not add to the complexity
of government bureaucracy and complement rather than duplicate existing government policies and
processes.

The NHRAP should also provide an effective and transparent basis for evaluation and reporting on
compliance with international human rights law standards. It provides an opportunity to ‘operationalise’
the commitments made by the Australian Government through the Universal Periodic Review (UPR)
by the Human Rights Council in 2011.

The HRLC welcomes the Labor Government’s leadership and commitment to developing the NHRAP
and the substantial investment and work undertaken by the Attorney-General’s Department to date in
developing the Baseline Study and Draft. Overall, the NHRAP is a positive development for Australia
and the Draft is a substantial document which is warmly welcomed by the HRLC. This submission
identifies areas in which the Exposure Draft to the National Human Rights Action Plan (the Draft)
currently falls short of effectively performing its stated functions and makes recommendations as to
how the Draft can be improved to address these shortfalls.

1.2     HRLC input into NHRAP process

The HRLC has significant expertise and experience in both domestic and international human rights
concerns. The primary mandate of the HRLC is to promote legal protection of human rights within
Australia. The HRLC has undertaken a range of NGO engagement activities in relation to a NHRAP,
including raising awareness of the NHRAP process and facilitating discussion among the NGO sector
through a series of workshops with NGOs across Australia. In addition the Centre has developed a
dedicated website to facilitate education and information sharing among NGOs and the broader
community.

This submission does not seek to replicate the extensive recommendations made in previous
submissions provided to the Attorney-General’s Department by the HRLC throughout the NHRAP
process.

The first is Making Rights Real: A National Human Rights Action Plan for Australia (Making Rights
Real), written as a response to the Background Paper entitled A New National Human Rights Action
Plan for Australia, released by the Attorney-General on 16 December 2010 (the Background Paper).

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The second is A Sound Baseline for Human Rights in Australia which was prepared in response to the
consultation draft of the Baseline Study released by the Attorney- General in July 2011.

The HRLC reiterates its support for the recommendations made in these submissions. This
submission builds on the recommendations in these submissions with comments specifically targeted
to the content of the Draft.

1.3       Summary of Recommendations

The HRLC makes the following recommendations for the NHRAP as discussed in more detail
throughout this submission.

Recommendation 1:
The Draft should be restructured to include six headings under each priority area in accordance with
the UN Handbook: goal, objectives, activities (or actions), relevant agencies, completion target dates
and performance indicators
The Draft should be amended so the approach to ‘priorities’ is consistent throughout.
Recommendation 2:
The HRLC recommends that the Draft be amended to ensure that all actions are goal and objective
orientated, and drafted with specificity. In particular, the drafters should:
         Break down the steps involved in particular policy initiatives and/or detail future actions to be
          taken to avoid the NHRAP becoming a list of existing initiatives.
         Avoid expressing actions as objectives.
         Consider whether some actions would be more appropriately characterised as performance
          indicators.
Recommendation 3:
Actions should not be included in the NHRAP if they do not clearly protect or promote human rights.
Recommendation 4:
The heading ‘lead agency’ should be added to or replaced with ‘relevant agencies’
Further detail should be provided of the relevant agencies in relation to each action with particular
attention paid to specifying relevant State and Territory agencies or departments and identifying
additional non-government partners to be involved in the delivery of actions.
Recommendation 5:
The timeframes in the Draft should be amended to provide more detailed information and due dates
for completion of various steps involved in the actions. The description “ongoing” should be avoided
where possible.
Recommendation 6:
Actions need to be monitored and evaluated through a comprehensive set of indicators.
Recommendation 7:
Sections dealing comprehensively with the topics of torture and ill-treatment; business and human
rights; and Australia’s extra-territorial obligations should be inserted into the NHRAP.
The section dealing with business and human rights should contain a range of hard and soft law
initiatives to implement the framework and guidelines developed by John Ruggie.




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Recommendation 8:
Where relevant, references to actions relevant to different affected communities should be included in
the chapters which deal specifically with those communities.
Recommendation 9:
All UPR recommendations accepted by the Australian Government should be referenced and
‘actioned’ in the NHRAP.
Recommendation 10:
The NHRAP should contain actions directed toward generating commitment and action from State and
Territory Governments and their agencies.
Recommendation 11:
Given that adequate data collection is critical in order to determine priorities for action and to measure
the effectiveness of future action, the Government should take urgent action to identify and address
gaps in current data collection.
Recommendation 12:
The HRLC reiterates its support for actions proposed in Making Rights Real and submits these actions
should be incorporated into the Draft.
Recommendation 13:
The HRLC recommends that the NHRAP:
       Include more detailed information regarding the steps and timelines involved in the proposed
        ratification of the OP-CAT.
       Include actions to ratify the following instruments with appropriate timeframes and consultation
        periods:
            o   OP-CRC
            o   OP-ICESCR
            o   CMW
            o   CED
            o   ILO Convention 169
       Include greater specificity of timeframes and nature of the review to be conducted of
        Australia’s reservations.
Recommendation 14:
The HRLC recommends that the NHRAP:
       Amend Action 18 to include additional commitment to strengthening the laws or enhancing
        their effectiveness in addressing discrimination and promoting equality;
       The AHRC Act be amended to schedule all seven core treaties;
       The mandate of the Joint Parliamentary Committee on Human Rights (the Committee) be
        extended to include the consideration, follow up and oversight of implementation of
        recommendations and views of UN human rights mechanisms or, alternatively, refer the issue
        to the Committee for inquiry and report.
       Include actions directed at facilitating civil society input into the Committee processes.
       Amend Action 23 to an explicit commitment to incorporation of human rights values and
        timeline for delivery.


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Recommendation 15:
Action 37 should be amended to provide for the review of legislation for consistency with international
human rights obligations.
Recommendation 16:
The NHRAP should include actions directed towards remedying the absence of independent
investigation into police-related deaths in many Australian jurisdictions. For example, including raising
the issue at inter-governmental forums.
The NHRAP should also include actions directed at reducing and preventing the excessive use of
force by police. For example, initiatives directed at improving monitoring of use of force incidents.
Recommendation 17:
The NHRAP should include a greater number of actions directed at the issues relating to poverty
raised in the Baseline study, including a national poverty reduction strategy underpinned by a human
rights framework and abolishing compulsory income quarantining.
Recommendation 18:
The NHRAP should also include actions directed toward:
       undertaking to include Indigenous and Torres Strait Islander peoples in the development,
        implementation and review of all other action points outlined in this section;
       development of a set of comprehensive guidelines for “best practice” engagement with
        Aboriginal and Torres Strait Islander peoples in decision-making about matters which affect
        them;
       incorporation of the rights and standards contained in the UN Declaration on the Rights of
        Indigenous Peoples into all aspects of policies and decisions that relate to Aboriginal and
        Torres Strait Islander peoples;
       adopting “justice” as a closing the gap building club and committing to targets regarding
        indigenous de-incarceration and contact with the criminal justice system; and
       adequately responding to the RRCADC.
Recommendation 19:
The NHRAP should expand the focus of the anti-discrimination initiatives beyond workforce
participation.
The NHRAP should also include actions directed toward addressing a greater number of the human
rights issues facing older people in Australia as identified in the Baseline Study and NGO
submissions. For example, actions relating to increasing education on the rights of older people and
reform to laws affecting the self-determination of older people (eg. Powers of Attorney).
Recommendation 20:
The NHRAP should:
       include an action expanding the passport guidelines to all cardinal documents;
       specify timeframes for Action 143.
       Include actions directed at:
            o   improvement of social services for people living with HIV;
            o   developing training and reporting on the promotion of sexual diversity in the
                workplace;
            o   initiatives to address homophobic and sex and gender related violence as well as
                same sex domestic and family violence; and
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            o   appoint a specialist commissioner within the AHRC.
Recommendation 21:
Consider renaming the priority area ‘Legal Capacity’ to ‘Access to Justice’.
Adopt the recommendations of specialist disability NGO’s such as the Australian Centre for Disability
Law.
Recommendation 22:
This section of the NHRAP should include actions directed towards diversion and justice re-investment
programs.
Recommendation 23:
The NHRAP should be amended to accurately reflect existing government policy and practice in the
area of immigration detention and adopt actions which reflect the recommendations of treaty bodies.
Recommendation 24:
The governance and monitoring arrangement outlined in the Draft should be supplemented with
additional processes which ensure continued momentum to achieve progress, including:
       The establishment of an NHRAP Interdepartmental Committee to meet every three months, or
        more regularly, and oversee the implementation of the NHRAP.
       The establishment of a Ministerial Taskforce to meet every six months and drive
        implementation within Government.
       Preparation of an annual report by the Attorney-General’s Department which reports on
        progress of the NHRAP, including a “traffic light system” to highlight both positive and negative
        outcomes.
       Regular, at least annual, discussion at inter-governmental forums including Ministerial Council
        meetings.
       Civil society input via an annual national conference on the NHRAP.
The implementation of the NHRAP should be undertaken in consultation with civil society and affected
communities and, where appropriate, partnership with NGOs.
Recommendation 25:
An evaluation process should be included in the NHRAP and should provide for an independent,
properly resourced evaluation of the success of the NHRAP against its stated objectives. The
Australian Human Rights Commission would be well placed to conduct such an evaluation if it were
properly resourced for the function.
Recommendation 26:
Performance indicators should be developed for each of the actions as a matter of priority.
Recommendation 27:
The NHRAP should include commitments to adequately resource the entities involved in monitoring
and evaluation functions as well as ensuring that ‘programme implementation costs’ are adequately
budgeted by relevant Departments and agencies.




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2.        General Comments on the Draft NHRAP
2.1       The importance of structure

The HRLC recognises that the Draft is a work in progress and looks forward to the development of a
NHRAP which reflects input received through this consultation process and aligns more closely with
international best practice.

The Office of the High Commissioner for Human Rights Handbook on National Human Rights Plans
                                 1
for Human Rights (UN Handbook) states that an effective action plan should promote and protect
human rights through the endorsement of human rights improvements as practical goals, the creation
of programs to ensure the achievement of these goals, the engagement of government and civil
society sectors and the allocation of sufficient resources. When assessed against these criteria, there
are a number of improvements that could be made to improve the effectiveness of the Draft.

In order to fulfil these necessary functions the NHRAP must be strategic in its approach. A strategic
approach requires a strong framework by which time-bound actions can be practically implemented
and monitored. The UN Handbook provides a workable framework by which this can be achieved. The
pillars of this framework are the six elements of goals, objectives, activities (or actions), relevant
                                                                   2
agencies, completion target dates and performance indicators.

Adopting a structure which insufficiently addresses these elements hampers the effectiveness of the
Draft from the outset. Many of the weaknesses of the Draft could be remedied by some relatively
simple reworking to draft the actions in accordance with the framework proposed by the
UN Handbook. In other priority areas the reduction of the recommended six categories to four
categories masks more fundamental or significant gaps in content or conceptual confusion. For
example, performance indicators are required for each of the 220 actions in the NHRAP but an
examination of the content contained in the ‘timeline/performance indicator’ column of the Draft
reveals a significant absence of sufficient performance indicators and/or timelines for many actions.

In addition, the characterisation of the ‘priorities’ is Draft is inconsistent. For example, some ‘priorities’
are described as classes of people or communities, others describe particular policy initiatives (eg.
‘Australia’s Human Rights Framework’), others describe goals (‘improving data collection’) or human
rights principles (‘freedom from violence’). The Draft would be improved by conceptualising each
priority area as encompassing both an overarching goal and specific objectives which form part of that
goal. This process would assist in the development of actions which are goal oriented. To illustrate the
benefits of adopting this approach an example of the practical application of this framework to a
priority area raised in the Draft can be found at Appendix A to this submission.




1
 Office of the High Commissioner for Human Rights Handbook on National Human Rights Action Plan of Action,
UN Doc. HR/P/PT/10, 29 August 2002 (the UN Handbook).
2
    UN Handbook, 75 (Figure 11).

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    Recommendation 1:

    The Draft should be restructured to include six headings under each priority area in
    accordance with the UN Handbook: goal, objectives, activities (or actions), relevant
    agencies, completion target dates and performance indicators

    The Draft should be amended so the approach to ‘priorities’ is consistent throughout.

2.2        Actions need to be goal and objective orientated and drafted with specificity

Many of the 220 actions contained in the Draft are not sufficiently specific, goal orientated and
implementable. There are four general criticisms that can be made of a number of the actions
contained in the Draft.
First, the Draft frequently makes reference to current government policies and initiatives, without
indicating specific actions to be taken in the future and/or breaking down the initiative, programme or
proposal into its component steps or parts. One of the key criticisms of previous NHRAPs adopted by
Australian Governments has been their tendency to simply list a number of existing Government
initiatives. This third NHRAP must avoid this flaw. The HRLC submits that more accurately identifying
the relevant goal and objectives to be addressed would also assist in the process of developing
appropriately drafted action points.

Secondly, a number of the actions contained in the Draft in fact constitute objectives. For example, the
action to be taken in the priority area of poverty is to continue implementing policy by ‘reducing
disadvantage and increasing social, civic and economic participation’. This should be termed as an
objective and a corresponding action should be developed for implementation to meet this objective.

Thirdly, consideration should be given to whether some actions listed may be more appropriately
classified as performance indicators. For example, one of these actions identified in relation to the
ratification of OP-CAT is to lodge the instrument of ratification with UN. This step may be an activity
undertaken in relation to ratification but, in our view, is more appropriately characterised as a
performance indicator. An example of how a NHRAP may deal with the goal of ‘extending
implementation of international standards’ and the associated objectives, actions, and performance
indicators is illustrated in the UN Handbook. In this illustration, deposit of the ratification instrument
                                                 3
with the UN is an indicator of performance.
Fourth, actions should not be included in the NHRAP if they do not promote and protect human rights.
For example, the reform of anti-discrimination law is expressed as an action which will ‘consolidate
Commonwealth anti-discrimination laws to remove unnecessary regulatory overlap, address
inconsistencies across laws and make the system more user-friendly. It will also consider the design
                                               4
of compliance regime and complaints processes’. In its current terms this action does not promote the
human right to equality or freedom from non-discrimination and unless this action is recast to include




3
    UN Handbook, 75.
4
    The Draft, Action 18, 7.

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an additional commitment to strengthening the laws or enhancing their effectiveness in addressing
discrimination and promoting equality it should be removed from the NHRAP. The review of the
Charter of Human Rights and Responsibilities 2006 (VIC) is a particularly salient example of where a
review conducted of this instrument may result in substantially weakening or repeal of legislative
                          5
human rights protections.


    Recommendation 2:

    The HRLC recommends that the Draft be amended to ensure that all actions are
    goal and objective orientated, and drafted with specificity. In particular, the drafters
    should:

             Break down the steps involved in particular policy initiatives and/or detail
              future actions to be taken to avoid the NHRAP becoming a list of existing
              initiatives.

             Avoid expressing actions as objectives.

             Consider whether some actions would be more appropriately characterised
              as performance indicators.



    Recommendation 3:

    Actions should not be included in the NHRAP if they do not clearly protect or promote
    human rights.


2.3          Actions should fall within the responsibility of an agency

The HRLC welcomes the nomination of the responsible entity for each action in the Draft. However, to
fully ensure that implementation of the NHRAP is effectively carried out, the HRLC recommends the
Draft identify a wider range of agencies and do so more explicitly.

The UN Handbook emphasises that an action plan must make explicit reference to the various
                                             6
institutional responsibilities of agencies. This is to ensure that stakeholders and the general public are
aware of the relevant agency for implementation as well as it being clear to the designated agencies
themselves. When compared to the action plans of other jurisdictions, the Draft addresses the
requirement to designate agencies in a relatively effective manner. However, we note that
improvement is required in some priority areas. In particular, State and Territory contributions to the
Draft should identify which department has the designated responsibility over the action within their
jurisdiction. For example, in the area of use of force by police, the Victorian government commits to




5
    See Scrutiny of Acts and Regulations Committee, Review of the Human Rights and Responsibilities Act 2006,
    2011.
6
    UN Handbook, 87.

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making changes to the oversight process by designing an investigation framework and principles. The
relevant agencies should be identified for the purposes of the NHRAP.

Secondly, the agency identification process should extend to various implementing partners, such as
civil society organizations and local government agencies who have ultimate responsibility in certain
areas. The OHCHR regards the identification of potential partners to further the plans objectives as a
necessary requirement of a NHRAP, given that “the range of issues to be covered by a plan is so wide
                                                                7
and the need for broad participation and involvement so great”.

The UN Handbook illustrates this identification process using the example of the administration of
justice and suggests professional associations of jurists, police and security personnel, social workers
and community organisations as relevant agencies in this context.
The Draft evidences this approach in some areas. For example, the agencies identified in relation to
the provision of health care to immigration detainees include health services and contracted health
service providers, as well as relevant government departments. Similarly, the Draft identifies the
certain agencies to be responsible for providing torture and trauma counselling to people in
immigration detention including the State and Territory Forum of Australian Services for Survivors of
Torture and Trauma Organisations, Indian Ocean Territories Health Service, local hospitals, health
services and contracted health service providers.

Consideration should also be given to developing partnerships with international and regional
organisations and other national governments and their agencies where appropriate. One example of
where this could be adopted in the Draft is the proposed action to work with the ILO to protect
migrants from labour exploitation in the South–East Asian region. Thought should be given to detailing
relevant partner organisations that will be involved with delivering the action, including the ILO and
relevant international organisations as well as state governments in South East Asia.

This approach should be applied to all priority areas in NHRAP. If it were adopted the existing heading
of ‘lead agency’ should be supplemented with or replaced by the heading ‘relevant agency’.


    Recommendation 4:

    The heading ‘lead agency’ should be added to or replaced with ‘relevant agencies’

    Further detail should be provided of the relevant agencies in relation to each action
    with particular attention paid to specifying relevant State and Territory agencies or
    departments and identifying additional non-government partners to be involved in
    the delivery of actions.



2.4       Actions should have projected target dates for completion

Projected target dates are an essential component of an action plan to ensure that the actions are
progressive and time bound and can therefore be implemented, monitored and evaluated effectively.




7
    UN Handbook, 87.

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The inclusion of projected target dates for completion requires significant attention in the Draft. There
are 220 action points contained in the Draft and 88 of these actions simply state that the performance
indicators and timeframes are “ongoing”. An additional 17 actions simply describe the timeframe as
“ongoing” and briefly discuss performance indicators. In most of these cases, a timeframe of “ongoing”
is inadequate and should be avoided in favour of specific timeframes and descriptions of processes.
For example, while the decision making process for the ratification of the International Convention for
Protection of all Persons from Enforced Disappearances may be “ongoing”, the review itself should
have a set date within which it needs to be completed.

If actions listed are current initiatives they should be assigned timeframes for development, evaluation
and expansion. Alternatively, the various steps involved in rolling out the initiative should be described
in greater detail and assigned expected timeframes for completion. For example, in relation to women
in the Australian Defence Force, the Draft provides that the Australian Human Rights Commission will
undertake a review into the treatment of women. While the Draft states that this review was initiated in
April 2011, there is no set timeframe for completion or a Government response.
                                                                 8
In contrast, most actions contained in the Swedish Action Plan have corresponding timeframes for
implementation and deadlines for completion. This is particularly the case for reviews and reports,
which have all been assigned due dates for completion.


    Recommendation 5:

    The timeframes in the Draft should be amended to provide more detailed information
    and due dates for completion of various steps involved in the actions. The description
    “ongoing” should be avoided where possible.


2.5       Actions should be monitored through a comprehensive set of indicators.

Ongoing monitoring and the creation of appropriate indicators is a crucial element of any action plan.
The development of a set of comprehensive indicators is essential to produce measureable
achievements in the experience of human rights in Australia. Indicators are discussed in greater detail
below. However, in respect of the overall structure of the NHRAP, it should be noted that the
conflation of the “indicator” and “timeframe” elements into one column results in significant
inadequacies in relation to each.


    Recommendation 6:

    Actions need to be monitored and evaluated through a comprehensive set of
    indicators.




8
 National Action Plan for Human Rights 2006-2009 2005/06:95 (Sweden) (available at
http://www2.ohchr.org/english/issues/plan_actions/docs/Swedish2.pdf )

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2.6        Gaps in thematic areas addressed by the NHRAP

It is imperative that the NHRAP is comprehensive in addressing the most pressing issues affecting
human rights in Australia. While we acknowledge that the NHRAP must be politically viable and
capable of being implemented by the executive, action taken pursuant to the plan must make real
progress towards better enjoyment of human rights in Australia. The plan should not seek merely to
justify the status quo.
In Making Rights Real, the HRLC submitted that the NHRAP should include concrete actions for
improving human rights in a variety of areas. While it is pleasing to see that ‘poverty’ has been added
as a focus point in the Draft, other priority areas are yet to be incorporated comprehensively into the
NHRAP. They include the following:

           (a)      Torture and ill-treatment;

           (b)      Business and human rights;

           (c)      Australia’s extra-territorial obligations.
For specific recommendations regarding actions that should be taken in these areas see the relevant
                               9
sections of Making Rights Real. In addition, a new section dealing with business and human rights
could include a range of hard and soft law initiatives to implement the framework and guidelines
developed by the Special Representative of the Secretary-General on the issue of human rights and
                                                                             10
transnational corporations and other business enterprises, John Ruggie.


     Recommendation 7:

     Sections dealing comprehensively with the topics of torture and ill-treatment;
     business and human rights; and Australia’s extra-territorial obligations should be
     inserted into the NHRAP.

     The section dealing with business and human rights should contain a range of hard
     and soft law initiatives to implement the framework and guidelines developed by
     John Ruggie.



2.7        Intersectionality

The issue of intersectionality was a major concern raised by numerous participants in HRLC’s
workshops. It is essential that human rights are viewed as being interdependent and indivisible. In
particular, the action plan should seek to avoid imposing a hierarchy between civil and political rights
on the one hand, and economic, cultural and social rights on the other. While the discussion of




9
    Making Rights Real, chapters 9, 17 and 24.
10
   John Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, 2008 (available at
http://www.business-humanrights.org/Links/Repository/965591)

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intersectionality was much improved in the final version of the Baseline Study, the HRLC is
disappointed to see that this has not been translated into the approach taken to the Draft.

The Draft could acknowledge and address this issue in an efficient manner by inserting cross-
references to other actions where appropriate. This approach was taken in the Swedish Action Plan,
                                                                                                        11
where actions from various priority areas are cross-referenced to actions in other priority areas.           For
example, the chapters dealing with affected communities could reference the Prejudice Motivated
Crime Strategy currently found in Chapter 1 under the heading ‘Legal Protections’.


     Recommendation 8:

     References to actions relevant to more than one affected community should be
     referenced under each section and actions in chapter one of particular relevance to
     specific communities should also be cross-referenced.


2.8        UPR recommendations

The HRLC commends the Australian Government’s acceptance and explicit inclusion of a large
number of UPR recommendations. However, a small number of the recommendations do not appear
                                12
in the NHRAP’s references.           All accepted UPR recommendations should be discussed and
addressed in the NHRAP.


     Recommendation 9:

     All UPR recommendations accepted by the Australian Government should be
     referenced and ‘actioned’ in the NHRAP.


2.9        State and Territory actions

The HRLC expresses its disappointment with the lack of input from State and Territory Governments
to the Draft. In order to be a truly national undertaking the NHRAP must achieve progress on human
rights issues within areas of State responsibility.

The Commonwealth should demonstrate leadership in promoting the NHRAP and the NHRAP itself
should outline actions to be taken by the Commonwealth to encourage and direct State and Territory
action. Inter-governmental forums such as COAG, SCLJ, and any other relevant Ministerial Councils
should be utilised to enhance co-operation and deliver the actions and outcomes in the NHRAP.




11
     National Action Plan for Human Rights 2006-2009 2005/06:95 (Sweden) available at
     http://www2.ohchr.org/english/issues/plan_actions/docs/Swedish2.pdf
12
     Human Rights Council, Report of the Working Group on the Universal Periodic Review, UN Doc A/HRC/17/10
     (24 March 2011) (UPR), recommendation 86.5., 86.122 - 123, 86.127., 86.122 - 123, 86.127., 86.17., 86.42.,
     86.43., 86.57., 86.96.

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Where actions are in areas of sole State responsibility, the Commonwealth can and should
nevertheless play a role in raising these issues at inter-governmental forums and via bi-lateral
dialogue with State and Territory Governments.


 Recommendation 10:

 The NHRAP should contain actions directed toward generating commitment and
 action from State and Territory Governments and their agencies.



3.       Protection and Promotion of Human Rights in Australia
3.1      Improving data collection and analysis

The HRLC welcomes the commitment to establish an advisory group to provide advice on matters
related to the collection and interpretation of data. The HRLC refers to the outstanding
recommendations relating to data contained in A Sound Baseline for Human Rights in Australia. It is
hoped that this advisory group will oversee work addressing the following issues:

      a) identify the gaps in relevant data and take steps to collect and publish missing data;

      b) effective use of existing data collected by NGOs and other bodies;

      c) identification of key gaps and where data sets should be gathered; and

      d) development of disaggregated data sets based on race, sex, disability, age, CALD
         background, sexual orientation, sex and/or gender identity or expression, socio-economic
         status and other factors.

Given that adequate data is critical in order to determine both priorities for action and to measure the
effectiveness of future action, these issues should be addressed as matter of priority.


 Recommendation 11:

 Given that adequate data collection is critical in order to determine priorities for
 action and to measure the effectiveness of future action, the Government should take
 urgent action to identify and address gaps in current data collection.



3.2      Australia’s international human rights commitments

Previous recommendations

The HRLC made a number of recommendations proposing actions in this area in its submission
Making Rights Real and does not seek to repeat those recommendations. Instead, we make a number
of comments on existing actions proposed in the Draft and a small number of suggestions for
additional actions. The outstanding recommendations contained in Making Rights Real are
summarised below where particularly useful or appropriate.

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Treaty body recommendations database (Action 6)

The HRLC welcomes Action 6 which relates to the establishment and maintenance of a publicly
accessible database of UN Human Rights Treaty body recommendations. However, we reiterate that
all recommendations of the UN human rights mechanisms should be implemented by the Australian
            13
Government.

Ratification of OP-CAT (Action 2)

The HRLC welcomes the Government’s proposed ratification of the Optional Protocol to the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (OP-CAT) and
submits that the NHRAP should contain more detailed information regarding the steps to be taken and
timelines involved. For example, a timeline for the establishment of a National Preventative
Mechanism should be included. The model legislation developed for consideration by jurisdictions
should also include guidelines on appropriate principles, roles, functions and powers for NPMs.

The HRLC also endorses the inclusion of a target date for ratification in the NHRAP, whilst
acknowledging that some steps involved in ratification fall outside the control of the Commonwealth
Government. A target date is particularly important for this action given that the Commonwealth has
been “working with States and Territories” to progress ratification of OP-CAT for a number of years.

Ratification of additional international instruments

The NHRAP should also include commitments to ratify the following instruments:

       a) Third Optional Protocol to the Convention on the Rights of the Child
       b) Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

       c) Convention on Migrant Workers (CMW)

       d) International Convention for the Protection of All Persons from Enforced Disappearances
          (CED)

       e) ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries (ILO
          Convention 169)

Where reviews have been specified (for example, in respect of ratification of the CED) the NHRAP
would be strengthened by the inclusion of more detailed information on the nature and timeframes for
the reviews. If the adoption of a treaty has been rejected previously by Government (for example, the
CMW), the NHRAP should at least specify actions directed towards monitoring the issue and review of
the Government’s position on a regular basis.
The HRLC notes that ILO Convention 169 is currently being considered by workplace relations
Ministers. The HRLC suggests that a timeframe and consultation process around this consideration be
included in the NHRAP.




13
     Making Rights Real, 18.

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Review of reservations (Action 3)

We take note of the Government’s undertaking to review its reservations to international human rights
treaties. However we urge the Government to commit to and expedite withdrawals of these
reservations. A timeline should be provided for the review, including consultation with civil society, and
the purpose of the review should be to determine whether the reservations are appropriate and
required, with a review to removing reservations where possible.


 Recommendation 13:

 The HRLC recommends that the NHRAP:

          Include more detailed information regarding the steps and timelines involved
           in the proposed ratification of the OP-CAT.

          Include actions to ratify the following instruments with appropriate
           timeframes and consultation periods:

               o   OP-CRC

               o   OP-ICESCR

               o   CMW

               o   CED

               o   ILO Convention 169

          Include greater specificity of timeframes and nature of the review to be
           conducted of Australia’s reservations.


3.3       Legal protections

Anti-discrimination law reform (Action 18)

As discussed above, the action regarding the consolidation of anti-discrimination laws requires
evidence of an intention or commitment to reform the laws in a manner which would promote the right
to equality and freedom from non-discrimination. Otherwise, this action point is not appropriate for
inclusion in the NHRAP.

3.4       Australia’s Human Rights Framework

Australian Human Rights Commission Act 1986 (Cth) (AHRC Act)

The HRLC recommends that the AHRC Act be amended to schedule all seven core treaties. This
would harmonise the AHRC Act with the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).




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Joint Parliamentary Committee on Human Rights

As previously recommended, the NHRAP should contain an action to amend the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth) to extend the mandate of the Joint Parliamentary Committee
on Human Rights to include the consideration, follow up and oversight of implementation of
recommendations and views of UN human rights mechanisms. A non-legislative alternative to this
action would be to refer the issue of Australia’s responses to UN human rights mechanisms to the
Joint Parliamentary Committee on Human Rights for inquiry and report.

Steps should also be taken to ensure civil society input into the work of the committee.

APS Values (Action 23)

The Australian Public Service values were revised in 2011 and do not incorporate human rights
values. This action needs to be framed as a commitment to explicit incorporation and a timeline for the
delivery of this action or removed from the NHRAP altogether.


 Recommendation 14:

 The HRLC recommends that the NHRAP:

         Amend Action 18 to include additional commitment to strengthening the laws
          or enhancing their effectiveness in addressing discrimination and promoting
          equality;

         The AHRC Act be amended to schedule all seven core treaties;

         The mandate of the Joint Parliamentary Committee on Human Rights (the
          Committee) be extended to include the consideration, follow up and
          oversight of implementation of recommendations and views of UN human
          rights mechanisms or, alternatively, refer the issue to the Committee for
          inquiry and report.

         Include actions directed at facilitating civil society input into the Committee
          processes.

         Amend Action 23 to an explicit commitment to incorporation of human rights
          values and timeline for delivery.




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4.         The Human Rights Concerns of the General Community
4.1        Torture

Previous recommendations

In Making Rights Real the HRLC made various recommendations for actions to be taken in relation to
                     14
the use of torture. It is concerning to see that none of these recommendations were accepted in the
Draft, nor was this topic included as an area of concern in the Draft.
The HRLC reiterates the need to amend the Migration Act, the Extradition Act and the Mutual
Assistance in Criminal Matters Act 1987 (Cth) to ensure that no person can be deported to a country
where they face torture. In addition we recommend the establishment of an independent review into
torture allegations with the power to award reparations, the enactment of legislation to prohibit the use
of evidence obtained as a result of torture, the repeal of ASIO powers to detain without charge or legal
                                                                                              15
access for 7 days and repeal of the Criminal Code, which provides for preventative detention.

4.2        Access to justice

Funding of specialist community legal services (Action 31)

The HRLC welcomes the Government’s commitment to continue funding the specialist Aboriginal and
Torres Strait Islander Legal Services and Family Violence Legal Services. However, we reiterate our
recommendation in Making Rights Real that funding should be substantially increased to meet unmet
legal need.

Previous recommendations

We further reiterate our recommendations in Making Rights Real, for the development of programs to
ensure interpreters are provided to CALD communities in court disputes and to work with community
legal service providers including Aboriginal and Torres Strait Islander Legal Services, to determine
and meet the minimum level of funding required.

Additional actions

We further support the recommendations made by the Young People’s Legal Rights Centre that the
government fund and coordinate court based diversion services for young people with minor and more
serious offending behaviour; improve bail support for children by auditing of the effectiveness of the
Intensive Bail Support Program and introduce legislation that imbeds diversion as an alternative




14
     Making Rights Real, 46-49.
15
     Making Rights Real, 46-49.

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sentencing option in the Children’s Court and supports Magistrates and police to divert young people
                                                                      16
into programs that provide appropriate intervention and support.

4.3        Counter-terrorism

National Security Legislation Monitor (Action 37)

The HRLC notes that the Independent National Security Legislation Monitor’s power to review the
practical operation of counter terrorism legislation appears to be poorly focused. Rather, the power
should concentrate on reviewing legislation for its consistency with Australia’s international human
rights obligations and to implement recent recommendations of UN treaty bodies and Special
Rapporteurs.

Previous recommendations

The HRLC is disappointed that none of its recommendations in the area of counter terrorism were
included in the Draft. Making Rights Real recommended a number of proposed actions centred around
the repealing and amendment of criminal laws, including:

          remove the presumption against bail;

          ensure the definition of terrorist is confined to acts which are indisputably terrorist acts;

          allowing for independent merits review of decisions and address the restrictions of movement
                                                                                     17
           and interim control orders placed on suspects pending investigations.
Additionally, we recommend ensuring that conditions of detention are in compliance with international
human rights standards.


     Recommendation 15:

     Action 37 should be amended to provide for the review of legislation for consistency
     with international human rights obligations.


4.4        The use of force by police

Independent investigations of police related deaths (Action 38)

The actions contained in this section of the fall far short of operationalising UPR Recommendation 89
which called for “…setting up appropriate mechanisms in order to ensure adequate and independent
investigation of police related deaths”. Currently the Draft contains proposals for actions which deal
with oversight rather than investigation.




16
     Comments on the Exposure Draft of the National Human Rights Action Plan, Young People’s Legal Rights
     Centre, March 2012.
17
     Making Rights Real, 51-64.

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The actions should include proposals to deal with the issues raised by the lack of independent
                                  18
investigation of police deaths. This issue should be tabled for discussion at meetings of the Standing
Council on Law and Justice and an attempt should be made to co-ordinate a national approach to the
issue in order to promote action by State and Territory Governments which currently lack independent
investigation mechanisms.

Additional actions

The Draft should also contain actions directed towards the prevention of excessive use of police force
rather than limiting actions to the investigation of incidents. The HRLC recommends an action that
would assist in this regard would be to develop improved systems for monitoring the use of force by
police agencies.


     Recommendation 16:

     The NHRAP should include actions directed towards remedying the absence of
     independent investigation into police-related deaths in many Australian jurisdictions.
     For example, including raising the issue at inter-governmental forums.

     The NHRAP should also include actions directed at reducing and preventing the
     excessive use of force by police. For example, initiatives directed at improving
     monitoring of use of force incidents.


4.5        Poverty

The HRLC welcomes the inclusion of poverty as a priority area in the final version of the Baseline
Study and the Draft.

Additional actions

It is disappointing that a greater number of actions have not been proposed to address this issue. The
HRLC recommends that actions should be developed to respond to the issues canvassed in the
Baseline Study. These actions include the development and implementation of a comprehensive
national poverty reduction strategy to enhance adequate levels of social security and abolishing
compulsory income quarantining in all communities.

Social Inclusion Agenda (Acton 62)

This action appears to be the expression of an objective rather than an activity and should be refined
further. In addition, we express our concern that the Government’s Social Inclusion Agenda does not
use a human rights framework to underpin its agenda. We recommend that the Government commit
to developing a poverty reduction strategy that is underpinned by a human rights framework, in




18
     Making Rights Real, 80-81.

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accordance with recommendations by the Committee on Economic, Social and Cultural Rights in its
Concluding Observations in 2009.


     Recommendation 17:

     The NHRAP should include a greater number of actions directed at the issues
     relating to poverty raised in the Baseline study, including a national poverty
     reduction strategy underpinned by a human rights framework and abolishing
     compulsory income quarantining.


4.6        Mental health care

Comments

While mental health care is addressed in various sections throughout the NHRAP, we note that it has
not been included as a discrete issue. We recommend that mental health be addressed as a stand
alone priority area with actions directly addressing the human rights issued raised in the consultation
on the Baseline Study.

The HRLC welcomes the government’s commitment to ensure that all persons in immigration
detention have access to appropriate physical and mental health care.

We also welcome the National Mental Health reform package, which improves access to the health
care system and further creates a Mental Health Commission.

Previous recommendations

However, the HRLC reiterates its recommendation that resources and support measures should be
brought into line with the United Nations Principles for the Protection of Persons with Mental Illness
and the Improvement of Mental Health Care.
The HRLC made further recommendations in relation to people with disability in Making Rights Real,
relevant to this priority area. These include:

          implementing recommendations of the Australian Medical Association and Senate Select
           Committee;

          addressing issues associated with detention of people suffering from mental illness including:

               o    by reducing the rate of incarceration of people suffering from mental illness;

               o    increasing engagement with community health providers in prison

               o    increasing resource allocation for prevention and treatment of mental illness within
                                                     19
                    prisons and immigration centres.




19
     Making Rights Real, 65-68.

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Further the HRLC recommends that the government take action to ensure that mental health
involuntary admissions are for as short a period of time as possible.



5.         Human Rights Experience of Specific Groups in
           Australia
5.1        Aboriginal and Torres Strait Islander Peoples

Comments

The HRLC welcomes the government’s action to support initiatives promoting the inclusion and
participation of Aboriginal and Torres Strait Islanders in any process of decision making, which may
affect their interest through the Aboriginal Inclusion Framework, Local Indigenous Networks,
Aboriginal Heritage Council and Enabling Choice for Aboriginal People living with Disability. We also
welcome the action to provide funding to the First Peoples Congress until 2013-2014.

Previous recommendations

However, the HRLC expresses its disappointment in number of recommendations submitted in Making
Rights Real having not been implemented. These recommendations pertain to the consultative
process of the implementation of “Closing the Gap” framework, strengthening indigenous language
and culture and taking positive steps to remove the intervention measures, remove difficulties inherent
in the native title system and adopting legislation to reduce discrimination. It further includes ensuring
better regulation and oversight of the police force and criminal justice system in relation to indigenous
persons including use of police force against indigenous peoples, investigating deaths in custody and
                                                                                              20
improving conditions of detainees, strengthening culturally appropriate legal aid services.

Additional actions

In addition to reiterating our previous recommendations we make further submissions in response to
the Draft.

We recommend the development of a set of comprehensive guidelines for “best practice” engagement
with Aboriginal and Torres Strait Islander peoples in decision-making about matters which affect them.
We do not believe that Australia can rely exclusively on the National Congress to ensure that it
adequately fulfils its human rights obligations regarding consultation with and participation of
Aboriginal and Torres Strait Islander peoples. These guidelines should be developed to provide
guidance and assistance to all Australian governments on how to best and most effectively ensure
that Aboriginal and Torres Strait Islander peoples can participate effectively in policy-making and
decision-making about matters which affect them. The development of consultation guidelines should
itself involve the participation of Aboriginal and Torres Strait Islander organisations and communities




20
     Making Rights Real, 26-45.

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and incorporate the standards and principles contained in the UN Declaration on the Rights of
Indigenous Peoples.

We recommend the addition of an overarching action which commits the government to an
undertaking to include Indigenous and Torres Strait Islander peoples in the development,
implementation and review of all other action points outlined in this section.

We note that there is no specific action point regarding Australia’s commitment to and incorporation of
the rights and standards contained in the UN Declaration on the Rights of Indigenous Peoples into all
aspects of policies and decisions that relate to Aboriginal and Torres Strait Islander peoples and
recommend that the NHRAP includes a broad action to include this obligation.

In relation to the Government’s undertaking to continue monitoring Indigenous deaths in custody
through the Australian Institute of Criminology’s Deaths in Custody Monitoring Program we express
concerns that a very large number of recommendations contained in the report of the Royal
Commission into Aboriginal Deaths in Custody (RRCADC) which have not been adequately
addressed by a Monitoring Program.

We recommend the NHRAP include the action of adopting “justice” as a closing the gap building club
and committing to targets regarding indigenous de-incarceration and contact with the criminal justice
system.


 Recommendation 18:

 The NHRAP should also include actions directed toward:

         undertaking to include Indigenous and Torres Strait Islander peoples in
          the development, implementation and review of all other action points
          outlined in this section;

         development of a set of comprehensive guidelines for “best practice”
          engagement with Aboriginal and Torres Strait Islander peoples in
          decision-making about matters which affect them;

         incorporation of the rights and standards contained in the UN Declaration
          on the Rights of Indigenous Peoples into all aspects of policies and
          decisions that relate to Aboriginal and Torres Strait Islander peoples;

         adopting “justice” as a closing the gap building club and committing to
          targets regarding indigenous de-incarceration and contact with the
          criminal justice system; and

         adequately responding to the RRCADC.




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5.2        Women

Comments and previous recommendations

The HRLC welcomes the Draft’s inclusion of a number of the actions recommended by the HRLC with
regard to women’s rights. These include: adopting targets for representation of women on public and
private boards, implementing and funding a national plan to reduce violence against women and
children, and funding legal assistance services for Indigenous women. However, the HRLC reiterates
its recommendations made in Making Rights Real to amend the family law system to protect women
                                                                                           21
and further to ensure that legal assistance provided to women is culturally appropriate.

5.3        Children and young people

Comments

The actions devoted to the protection and promotion of child’s rights in the Draft are notably limited.

While the HRLC is encouraged to see that the Government will explore options in appointing an
independent National Children’s Commissioner and enact legislative protection for the safety of
children in family law proceedings, we remain concerned that many of our recommendations have not
been included in this area.

Previous recommendations

These recommendations, detailed in Making Rights Real address: issues of children in detention -
both in the criminal system and migration, issues regarding children in the justice system such as
raising the age of criminal responsibility to an internationally accepted level and repealing laws
permitting preventative apprehension of children and the development of a national policy framework
for children’s rights with the objective of embedding the Convention on the Rights of the Child into
domestic law and policy. HRLC further supports recommendations for the development of measures
to ensure that children with disability are able to obtain primary and secondary education without
                  22
discrimination.

5.4        Older people

Comments

The HRLC welcomes the actions in the Draft which seek to address some of the human rights issues
facing older people. However, additional actions should be included to address a greater number of
the human rights issues facing older people in Australia, for example the issues raised in A Sound
                                        23
Baseline for Human Rights in Australia.




21
     Making Rights Real, 84-87.
22
     Making Rights Real, 68-74,
23
     A Sound Baseline for Human Rights in Australia, 49-51.

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Additional actions

For example, an action point could be developed to regarding education on the rights of older people.
The action points relating to discrimination could be improved by expanding their focus beyond
workforce participation, given the prevalence of ageism in many other settings in Australia. Self-
determination and independent decision-making is an issue of importance for older people, whether in
institutional or non-institutional settings. Reform to the legal framework dealing with these issues, for
example, laws relating to powers of attorney, is also needed and would form the basis of an
                                                    24
appropriate action for the NHRAP to progress.


     Recommendation 19:

     The NHRAP should expand the focus of the anti-discrimination initiatives beyond
     workforce participation.

     The NHRAP should also include actions directed toward addressing a greater
     number of the human rights issues facing older people in Australia as identified in
     the Baseline Study and NGO submissions. For example, actions relating to
     increasing education on the rights of older people and reform to laws affecting the
     self-determination of older people (eg. Powers of Attorney).



5.5        Gay, Lesbian, Bisexual and Sex and/or Gender Diverse People

Discrimination law reform (Action 120)

The HRLC welcomes the government’s implementation of a national law which prohibits discrimination
and harassment on the grounds of sexual orientation and gender identity. However, the HRLC
reiterates its recommendations for legal rights to exist for same sex partner marriage and parenting.

Passport guidelines (Action 145)

Further the HRLC takes note of the action to support implementation of guidelines which will make it
easier for gender diverse persons to get a passport in their preferred gender. However, the HRLC
recommends that these guidelines be implemented for all cardinal documents.

Legal recognition of sex (Actions 143 & 144)

The HRLC welcomes the timeframe for release of the draft guidelines in relation to Action 144.




24
     A Sound Baseline for Human Rights in Australia, [170]-[172], Law Reform Committee of Victorian Parliament,
     Final Report - Inquiry into Powers of Attorney, August 2010.

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The HRLC notes that Action 143 has been continuing for a number of years now without any visible
outcomes or progress and suggests it is particularly important for this action to be assigned a
timeframe for completion.

Additional actions

The HRLC endorses the submission of the NSW Gay & Lesbian Rights Lobby and further
recommends the following actions be adopted in the NRHAP:

•          Improvement of access to social services for people living with HIV;

•          Development of organisational diversity training and reporting on the promotion of sexual
           diversity in the workplace;

•          Funding of initiatives to address homophobic and sex and gender related violence as well as
           same sex domestic and family violence; and

•          The appointment of a specialist commissioner responsible for sexuality related human rights
           should be appointed within the Australian Human Rights Commission.


    Recommendation 20:

    The NHRAP should:

           include an action expanding the passport guidelines to all cardinal
            documents;

           specify timeframes for Action 143.

           Include actions directed at:

                 o   improvement of social services for people living with HIV;
                 o   developing training and reporting on the promotion of sexual diversity
                     in the workplace;

                 o   initiatives to address homophobic and sex and gender related
                     violence as well as same sex domestic and family violence; and

                 o   appointing a specialist commissioner within the AHRC.



5.6        People at risk of experiencing homelessness

Comments

The HRLC endorses the submission of the Public Interest Clearing House in response to the Draft.

Freedom from discrimination (access to legal assistance – action 152)

The HRLC comments that increasing access to justice for those at risk of or experiencing
homelessness appears to be of limited value in achieving freedom from discrimination given that this
particular grouping are not protected under anti-discrimination laws in any Australian jurisdiction.
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Previous recommendations

The HRLC has made various recommendations for actions to be adopted by the government in
combating homelessness, as outlined in Making Rights Real. Our central recommendation is that the
government should fully realise the right to adequate housing as defined in international law and over
the course of 10 years ensure that this right is appropriately implemented into Australian law. This
includes protection of persons from homelessness, the provision of remedies for breach of the right,
the adoption of a national housing strategy, which deals with housing construction, addressing cultural
needs, addressing discrimination and ensuring the consultation and participation of persons facing
homelessness. In order to ensure the full realisation of this right, the HRLC has recommended the
establishment of a Housing Commission with an Independent Housing Commissioner to investigate
                                                 25
and conciliate complaints regarding the right.
The HRLC specifically recommends the development of a Homelessness act which enshrines the right
to adequate housing in accordance with a bi-partisan parliamentary committee recommendation in
        26
2009.

5.7          People with disability

Comments

The HRLC welcomes the Government’s introduction of the Impairment Tables which endeavour to
bring DSP assessments into line with contemporary medical and rehabilitation practice and the UN
Convention on the Rights of Persons with Disabilities. However, the HRLC reiterates its
recommendation for a broad reference to the full incorporation of the Convention into all laws and
policies relating to people with disability.

Legal capacity (Actions 170 & 171)

The priority area ‘legal capacity’ does not appear to be correctly titled and should perhaps be renamed
“access to justice”.

Exercising the right to vote

The NHRAP should adopt the HRLC recommendation to take action to ensure people with disability
                                                        27
can fully and equally participate in electoral process.

Additional actions

                                                                                        28
The HRLC supports recommendations made by the Australian Centre for Disability Law including the
introduction of a non means tested national disability allowance in order to offset the additional costs




25
     Making Rights Real, 75-80.
26
     Making Rights Real, 75-80.
27
     Making Rights Real, 88.

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associated with disability and the provision of additional funding to a specialist Community Legal
Centre to assist persons with disability to make CRPD related human rights claims.

In addition, the NHRAP should include the development of a national strategy aimed at the prevention
of removal of children based on their parent’s disability and for the provision of practical parenting
supports for parents with disability.


     Recommendation 21:

     Consider renaming the priority area ‘Legal Capacity’ to ‘Access to Justice’.

     Adopt the recommendations of specialist disability NGO’s such as the Australian
     Centre for Disability Law.


5.8        People in prisons

A concerning omission in the Draft is the lack of emphasis on the importance of diverting people away
from the criminal justice system.

Additional Actions

As discussed above, the HRLC welcomes the government’s proposed commitment to ratify the
OPCAT. However, the HRLC is concerned that other recommendations contained in Making Rights
Real were not accepted in the Draft. These include:

          providing appropriate health care to people in prisons and implementing the recommendations
           of the Special Rapporteur on the right to health, the ICESCR and the CAT in this regard;
          placing greater emphasis on access to education and rehabilitative services in prison; and
          conducting independent inquiries on the interaction of Aboriginal and Torres Strait Islander
                                                     29
           Peoples with the criminal justice system.
In addition, the HRLC supports recommendations for the government to develop a comprehensive
strategy to ensure the humane treatment of prisoners with disability.


     Recommendation 22:

     This section of the NHRAP should include actions directed towards diversion and
     justice re-investment programs.




28
     Comments on Australia’s National Human Rights Action Plan Exposure Draft; Australian Centre for Disability
     Law, 1 March 2012.
29
     Making Rights Real, 98-100.

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                         Human Rights Law Centre | Submission: Achieving SMART Action on Human Rights




5.9       Refugees, asylum seekers, migrants and people from culturally and linguistically
          diverse backgrounds.

Immigration detention for families and young children (Action 195)

The HRLC welcomes the government’s commitment to make greater use of community detention for
families with young children. However, we hope to see legislative changes made to enforce this
practice. Additionally, while we note that the Government has recently made efforts in moving families
and children into community based detention, children still remain in immigration detention centres.

Arbitrary detention (Action 192)

The HRLC expresses concern as to the action to “continue to ensure that detention is not indefinite or
otherwise arbitrary” and only applicable to specific groups. We submit that this does not adequately
reflect current law or practice, which does in fact provide for mandatory, indefinite detention without
judicial oversight and as a number of human rights cases have indicated, is not always used as a last
resort or for the shortest practicable time.

Previous recommendations

The HRLC expresses its disappointment that overall, only a small number of the HRLC’s
recommendations in relation to refugees, asylum seekers and migrants were reflected in the Draft.

These recommendations as detailed in Making Rights Real address such issues as:

         the abolishment of mandatory detention and offshore processing including the closing down
          of Christmas Island;

         legislative changes to ensure strict time limits on detention;

         amendments to the Migration Act to ensure that visa’s of permanent residents can only be
          cancelled in defined circumstances; and

         review the operation of s 501 Migration Act to ensure long term permanent residents are not
          deported.

The Australian Government, by virtue of being a state party to a treaty, has obligations under
international human rights law to implement recommendations provided to it by a treaty body. The
Government’s action to implement only those recommendations, which are accepted as consistent
with already existing immigration detention policies falls far short of meeting this obligation. The HRLC
therefore recommends for the appropriate action to be the implementation all treaty body
recommendations in the area of immigration detention.


 Recommendation 23:

 The NHRAP should be amended to accurately reflect existing government policy
 and practice in the area of immigration detention and adopt actions which reflect the
 recommendations of treaty bodies.



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                            Human Rights Law Centre | Submission: Achieving SMART Action on Human Rights




6.        Governance, Monitoring & Evaluative Mechanisms
6.1       The importance of governance and monitoring of implementation

It appears from the Draft that the Government has assigned responsibility for overseeing
implementation of the NRHAP to the Attorney-General’s Department. The monitoring arrangement
proposed by the Draft could be expanded upon and strengthened significantly. The “interim report”
and “final report” stages proposed in the Draft should be supplemented with more regular monitoring
and mechanisms to promote on-going implementation.

The UN Handbook emphasises the crucial role of monitoring and evaluation in an action plan and
warns that all efforts need to be made to avoid the situation wherein “human rights objectives are
                                                                                               30
launched with great fanfare but are then left to wither because of lack of follow through”.

Regardless of which mechanism is eventually employed, it is important that the NHRAP and
monitoring mechanism enjoy a high level of support within government so that agencies respond to its
recommendations and proposals. It is also important that monitoring involve all relevant layers of
government in order to ensure that appropriate responsibility is taken for ensuring the plan’s
                  31
implementation.        Ideally, the monitoring process should also involve civil society in order to increase
levels of transparency and legitimacy of the monitoring process.

6.2       Inter-departmental committee

An inter-departmental committee (NHRAP IDC) should be established to oversee implementation of
the actions, particularly the actions within the responsibility of the Commonwealth Government. This
committee should meet at least every 3 months to discuss progress and report on any issues arising
in the implementation of the NHRAP’s initiatives.

6.3       Ministerial taskforce

The NHRAP would also benefit from the establishment of a Ministerial Taskforce to oversee the
implementation of the plan’s actions. Ministers should meet every 6 months to discuss progress of the
NHRAP following briefings from their relevant departments and agencies. This process would provide
impetus for continued action and demonstrate “buy-in” to the NHRAP at the highest levels of
Government. Any cross-departmental issues unable to be resolved through the NHRAP IDC could be
dealt with by Ministers at these meetings. The Human Rights Ministerial Taskforce meetings could
also address any other human rights issues requiring cross-portfolio discussion and co-operation
between Ministers and foster agenda setting discussions in the area of social policy.




30
     UN Handbook, 20.
31
     UN Handbook, 20.

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                              Human Rights Law Centre | Submission: Achieving SMART Action on Human Rights




6.4        Public annual report

Responsible agencies and organisations should report annually to the Attorney-General’s Department
on NHRAP implementation. These reports should address the relevant ‘priority’ (or objective and goal
if the structure of the NHRAP is to be improved), performance indicator and the action taken to
achieve the objective. The report should explain how the performance indicator has been satisfied. If
the indicator has not been met the report should include an assessment of why this was the case and
further actions to be taken in this regard.

The Attorney-General’s Department should prepare a report on the status of the NHRAP’s
implementation based on these agency reports and this report should be released publicly following
discussion at the NHRAP Ministerial Taskforce. A “traffic light system” could be used to clearly
highlight where program and policy initiatives were delivering improved human rights compliance and,
conversely, where further attention was needed.
“A Fairer Victoria” is an example of a comprehensive “whole of government” social policy initiative and
annual reporting initiative which was undertaken by the Victorian Government in recent years. “The
“Closing the Gap” Prime Ministers Report is an example of a similar process undertaken at the federal
level. These processes demonstrate a much more robust approach to measurement of progress
against a number of indicators dealing with a range of policy areas, and should be drawn upon as
models existing or past government practice.

6.5        State and Territory Governments

State and Territory Governments should feed into the annual reporting process and the NHRAP
should, as necessary, be included on the agendas for discussion at meetings of the Council of
Australian Governments, Standing Council on Law and Justice and/or any other relevant Ministerial
Councils.

6.6        Civil society participation

The UN Handbook suggests that monitoring be conducted by a national co-ordinating committee or
other designated follow-up body. In Making Rights Real, the HRLC recommended that a steering
committee comprised of a broad range of actors and independent experts from across all relevant
fields should have the responsibility of developing the NHRAP and thereafter be responsible for the
                                      32
monitoring of its implementation.

The HRLC maintains that such a steering committee would remain an appropriate forum for oversight
and monitoring of the NHRAP. This steering committee should be comprised of non-government
representatives such as NGO peak bodies, NGOs with subject-matter expertise, academics,
representatives of vulnerable groups, trade unions, human rights educators and other community
representatives. Broad participation from across sectors will give the process greater credibility and
will also allow for the provision of expertise and experience in relevant areas. The involvement of




32
     Making Rights Real, 3.

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                         Human Rights Law Centre | Submission: Achieving SMART Action on Human Rights




academics and civil society with expertise in indicators and monitoring is essential to ensure effective
implementation.
As stated in Making Rights Real, we support the recommendation made by Mr Bill Barker in his
submission on the National Action Plan that the Attorney-General, who is currently charged with
overseeing the project, also be the chairperson of the steering committee. As Mr Barker states, this
would emphasise the weight and significance of the project, provide political guidance and promote
                             33
public and media interest.

Regardless of the monitoring mechanism adopted and whether a national co-ordordinating committee
is established, the NHRAP should be implemented in consultation and, where appropriate,
partnership, with civil society.

6.7        National conference

The HRLC recommends the holding of a national conference as part of the monitoring and evaluation
process. This would see the collaboration of key stakeholders from a range of interest groups
discussing the progress of the plan, improvements to be made and positive steps taken. In Sweden, a
number of national conferences have been held to discuss their NHRAP as part of its monitoring
              34
evaluation.

6.8        Evaluation

Evaluative mechanisms remain a critical feature absent from the Draft.

The UN Handbook emphasises the importance of an independent evaluation being carried out in order
                                                                                                35
for the plan’s achievements to be assessed and recommendations made for improvement. The
purpose of the evaluation is to determine the degree of success of the plan in terms of achievements
measured against objectives. The UN Handbook considers the evaluation process to be a significant
aspect of the plan and recommend that the final review be issued as a public document for
government agencies, non governmental agencies and organisations and the general public.

The evaluation is an important accountability mechanism and will promote greater rigour in the
delivery of the NHRAP’s initiatives and development of future NHRAPs. The most important aspect of
the evaluation is the making of recommendations for further actions to be taken, or, if appropriate, the
establishment of a successor national action plan.

Evaluation of the NHRAP must be conducted separately to the monitoring process and, therefore, if
monitoring is to be undertaken by the Attorney General’s Department then it is critical for the
evaluation to be undertaken by an independent body, panel or individual. The HRLC recommends that
the Australian Human Rights Commission assume this role in evaluating the progress of implementing




33
  Bill Barker, A New National Human Rights Action Plan for Australia: Comments on the Attorney-General’s
Department Background Paper, 2.
34
   National Action Plan for Human Rights 2006-2009 2005/06:95 (Sweden) available at
http://www2.ohchr.org/english/issues/plan_actions/docs/Swedish2.pdf
35
     UN Handbook, 20.

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                        Human Rights Law Centre | Submission: Achieving SMART Action on Human Rights




the NHRAP. The OHCHR supports external evaluation, stating that it may be difficult for the
overseeing committee to maintain a rigorous and credible independent approach.




 Recommendation 24:

 The governance and monitoring arrangement outlined in the Draft should be
 supplemented with additional processes which ensure continued momentum to
 achieve progress, including:

          The establishment of an NHRAP Interdepartmental Committee to meet every
           three months, or more regularly, and oversee the implementation of the
           NHRAP.

          The establishment of a Ministerial Taskforce to meet every six months and
           drive implementation within Government.

          Preparation of an annual report by the Attorney-General’s Department which
           reports on progress of the NHRAP, including a “traffic light system” to
           highlight both positive and negative outcomes.

          Regular, at least annual, discussion at inter-governmental forums including
           Ministerial Council meetings.

          Civil society input via an annual national conference on the NHRAP.

 The implementation of the NHRAP should be undertaken in consultation with civil
 society and affected communities and, where appropriate, partnership with NGOs.




 Recommendation 25:

 An evaluation process should be included in the NHRAP and should provide for an
 independent, properly resourced evaluation of the success of the NHRAP against its
 stated objectives. The Australian Human Rights Commission would be well placed to
 conduct such an evaluation if it were properly resourced for the function.


6.9       Performance indicators

An effective monitoring and evaluation process requires the establishment of a set of indicators that
map out the extent to which human rights are being realised in Australia. Establishing these indicators
is a crucial step in providing an important and necessary structure to properly measure the NHRAP
over time.

While there is some attempt to incorporate performance indicators at various stages of the Draft, many
actions have merely been assigned timeframes without an explicit statement of how performance will
be measured. In many instances, the indicators that have been provided are not sufficiently detailed.



                                                                                                 Page 32
                                Human Rights Law Centre | Submission: Achieving SMART Action on Human Rights




In some instances, such as the action point which details the Government’s “Closing the Gap” policy,
much more detail is provided.

The HRLC welcomes the Government’s recognition of the importance of data to enable the
measurement of progress and the commitment to the establishment of a joint government and NGO
advisory group on indicators. These actions represent positive steps to which will contribute to the
effective monitoring and evaluation of the NHRAP. However the Draft proposes that the indicators are
to be developed by the advisory group and included in the interim report to be produced in three
years. Given their foundational importance in providing a basis on which to measure progress, a set of
human rights indicators should be developed and put in place in a much shorter time frame.

The HRLC made a number of recommendations in Making Rights Real as to the development of
                                                                                                       36
indicators, which drew upon the UN Handbook. Indicators should include the following subsets:

          structural indicators, that is, the structures that are already in place, or that should be put in
           place, to protect rights, such as laws and policies;
          process indicators, such as the extent to which people actually use laws or agreements
           already available to defend their human rights; and
          outcome indicators that show the impact of laws or policies or gaps in laws and policies,
           such as the numbers of people whose human rights are either being respected or denied
           (rather than input based measures which discuss what actions have been taken, irrespective
                               37
           of their effect).

More recently, these categories have been adopted by the UK Equality and Human Rights
                 38
Commission. For further discussion and explanation of these categories, we refer the Government to
the UN Guidelines as well as the more recent publication by the UK Equality and Human Rights
Commission.

The inclusion of indicators will provide an effective and transparent basis for evaluation and reporting,
including future appearances by Australia in the UPR process, and for ongoing review, improvement
and further development in subsequent NHRAPs.

As discussed above, indicators have been developed and utilised in other areas of Government policy
in Australia and should be developed as a priority for the NHRAP. For example, “A Fairer Victoria”
provides for the measurement of progress against a number of indicators and publishes data which
                                                                          39
clearly maps the areas of improvement as well as areas of concern.             This transparent measuring of
progress should be replicated in the NHRAP.




36
     Making Rights Real, 12.
37
     See UN Handbook for further discussion.
38
   See Equality & Human Rights Commission, Human Rights Measurement Framework: Prototype panels,
indicator set and evidence base, Winter 2011 (available at
http://www.equalityhumanrights.com/uploaded_files/humanrights/HRMF/hrmf.pdf)
39
   Victorian Government, A Fairer Victoria: Real Support – Real Gains (May 2010) (available at
http://www.dpcd.vic.gov.au/__data/assets/pdf_file/0016/33226/A_Fairer_Victoria_2010.pdf)

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                          Human Rights Law Centre | Submission: Achieving SMART Action on Human Rights




6.10       OHCHR Framework as the foundation for monitoring and evaluation.

The framework outlined by the OHCHR in the UN Handbook and demonstrated in Appendix A
provides the foundation for the successful monitoring and evaluation of an action plan. It achieves this
by setting out the goals and objectives to be met, the action to be taken, the timeframe within which
this must be completed, and the relevant agencies and organisations responsible for its
implementation. Additionally, it includes performance indicators, which are a crucial instrument in
evaluating whether or not a particular activity has been implemented successfully.

Monitoring and evaluation underscores the importance of taking time when drafting the plan to
establish clear and realistic performance indicators.


     Recommendation 26:

     Performance indicators should be developed for each of the actions as a matter of
     priority.




7.         Resourcing the NHRAP
A prerequisite to the success of any national action plan is the dedication of resources to support the
implementation of the actions within it. Lack of funding of a NHRAP not only raises concerns
associated with implementation but also with the government’s commitment to the plan as a whole.
The UN Handbook supports this, stating “a failure to provide reasonable resources will raise questions
                                                                             40
about the government’s seriousness and about the credibility of the plan.”

The OHCHR considers funding to be a crucial component in two areas of an action plan’s operations.
They term the first “development and monitoring costs”, which relate to the costs associated with the
development and ongoing monitoring and evaluation of the plan. These include such expenditures as
the costs of the coordinating committee, consultations and evaluative measures.
The second are termed the “programme implementation costs”, which relate to the implementation of
the plan’s actions themselves. Given that actions fall within the responsibility of designated agents, the
regular budgets of these agencies should provide the required funding and resources. This includes
dedicating funds to new expenditures for specific purposes, which have not been allocated funding
previously and may involve the re-prioritisation of funds and resources to ensure an agency’s actions
can be implemented.

The Draft does not contain any detail on resourcing or indications that additional funding will be
provided by Government to resource either the development and monitoring costs or the programme
implementation costs. The absence of reference to funding raises concerns over the capacity of the
government to effectively implement and monitor the NHRAP as well.




40
     UN Handbook, 100.

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                     Human Rights Law Centre | Submission: Achieving SMART Action on Human Rights




Recommendation 27:

The NHRAP should include commitments to adequately resource the entities
involved in monitoring and evaluation functions as well as ensuring that ‘programme
implementation costs’ are adequately budgeted by relevant Departments and
agencies.




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             Human Rights Law Centre | Submission: Achieving SMART Action on Human Rights




Appendix A




                                                                                  Page 36

				
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