United Nations: Advance Questions to Australia

Australian officials appeared before the United Nation's Human Rights Council in Geneva on Thursday 27th January 2011 for what is known as a universal periodic review. About 50 countries participated in Australia's review, making almost 150 recommendations.

Foreign governments have called on Australia to improve its treatment of Aborigines with several countries expressing concerns and have urged Australia to increase its efforts to overcome indigenous disadvantage and racism. Australia was also asked to enact a comprehensive national human rights act.


• Since 1990, the UN Human Rights Committee (UNHRC) has found that in 17 cases (out of 50) Australia violated the ICCPR rights. Several cases concerned the immigration law. The UNHRC stated that the mandatory immigration detention might be considered as arbitrary detention even though authorized by law; it might be considered still as arbitrary if it is inappropriate, unjust, unnecessary or disproportionate to the end sought – even if entry into Australia was unauthorized. How has the Government of Australia implemented UNHRC conclusion? The UNHRC further observed that review of the lawfulness of detention has to include consideration of the human rights listed in the ICCPR. Does court's review on the lawfulness of detention in Australia include a consideration of the human rights listed in the ICCPR?

• While we note that various Anti-discrimination Acts have been in force at federal level, we would like to know how the equal treatment, especially of vulnerable groups, including persons with disabilities, LGBT and national minorities, is guaranteed at local level?

• According to statistics, 29 per cent of young Aborigines are not "earning or learning", compared with 9 per cent of non- Aborigines. In some areas, up to 70 per cent of indigenous students regularly do not attend school. Indigenous unemployment is three times higher than the non-indigenous rate. What steps has the Government of Australia taken to address the indigenous disadvantage? Could you elaborate further, what measures has been taken to reduce overrepresentation of Aboriginal and Torres Strait Islanders peoples within criminal justice system and to reduce high imprisonment rates of these peoples?

• How does the Government of Australia comply with its international obligations arising from the Convention on the Rights of Persons with Disabilities to which Australia is a state party, concerning the equal treatment of persons with disabilities? Does the Government of Australia consider reviewing strict health criteria required for granting a visa in order to ensure a full and equal enjoyment of the rights of persons with disabilities?


• How does Australia intend to comply with the Concluding Observations of both the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination Against Women concerning the non-therapeutic sterilisation of people with disabilities, particularly girls and women?

• What measures will Australia take to ensure that the Northern Territory Emergency Response (NTER) is conducted in a manner fully consistent with Australia's human rights obligations and to fully reinstate the Racial Discrimination Act?

• Please provide information on the steps taken at the Federal, States and Territorial levels to prepare for ratification and implementation of the Optional Protocol to the Convention against Torture (OPCAT). When does Australia intend to ratify OPCAT?

• Which steps will Australia take to secure that its counter-terrorism measures are consistent with Australia's international human rights obligations and do not infringe upon fundamental rights and freedoms?


Legal framework

With respect to the concerns of five treaty bodies and four Special Rapporteurs, reiterated in paragraph 3 of the OHCHR compilation, about an inadequate incorporation of human rights treaties in the Australian legal framework, how does Australia ensure that its international treaty obligations are adequately incorporated into its domestic legal system?

International Treaties

In light of the remarks in paragraph 146 and part V.B of the national report about the intended ratification of the Optional Protocol to the CAT, and in reference to the invitations reiterated in paragraph 1 of the OHCHR compilation to ratify a number of international treaties, could the Government indicate when it expects to ratify OPCAT and whether it is considering to sign and ratify OP ICESCR and ILO Convention 169?

Equality and non-discrimination

With reference to the current harmonisation and consolidation process of the Commonwealth anti-discrimination laws described in paragraph 52 of the national report, will this consolidated Act incorporate all rights to equality and non-discrimination as contained in international human rights law?

Non-discrimination based on sexual orientation

In light of the intentions, described in part III.B5 of the national report, concerning the rights of same-sex couples and the prevention of discrimination on the basis of sexual orientation and gender identity, what specific measures will the Government take to ensure equality before the law of all its citizens regardless of sexual orientation, and will this include allowing same-sex partners to marry and recognise same-sex marriages from overseas, as well as ensuring equal rights for same-sex partners seeking to become parents, or who are currently parenting?

Indigenous peoples and the rights of women and children

Concerning the measures detailed in part III.B1 of the national report to improve the rights of indigenous peoples, and with reference to the concerns expressed in paragraphs 17, 18 and 19 of the OHCHR compilation on the situation of indigenous peoples, what progress has Australia made to reduce high incidences of violence and abuse, improve health standards and life expectancy, and provide adequate education in relation to indigenous peoples, particularly women and children?

Detention of Asylum Seekers

Noting paragraphs 133 to 140 of the national report which outline the immigration policy of Australia, and with reference to the concerns expressed in paragraphs 48 and 49 of the OHCHR compilation and paragraphs 61 and 62 of the stakeholder report about the mandatory detention of asylum seekers, and particularly of children and vulnerable families, what concrete measures is Australia taking to minimise the use of immigration detention and to ensure children are no longer detained?


With reference to the concerns raised in paragraph 51 of the OHCHR compilation and paragraph 66 of the stakeholder report regarding the compatibility of Australian counter-terrorism legislation with human rights standards, and in particular concerns about the broad definition of terrorist offences, the detention of terrorism suspects before a formal charge or conviction and broad powers of Australian Security Intelligence Organisation to detain and question people, to what extent do recent changes to Australian counter-terrorism legislation, as mentioned in paragraphs 112 to 115 of the national report, address these concerns?


• Sweden would like to ask the Government of Australia to kindly elaborate on what actions are taken to combat discrimination, especially with regard to racial discrimination against persons belonging to indigenous communities?

• Sweden would like to ask the Government of Australia to elaborate on the status of refugees and asylum seekers, and on measures the Government is taking, in accordance with its international obligations, to reinforce existing legislation on the rights of refugees and asylum seekers?

• What is the Government's assessment of the situation for these people in view of your proposal to establish processing centers in other countries?


Women's rights
What strategies have been and will be put in place to ensure that particular human rights issues such as domestic violence that affect vulnerable women groups such as rural women or women from culturally and linguistically diverse backgrounds are addressed?

Sexual and gender identity

Which measures Australia has taken to ensure that all citizens live free from discrimination regardless of their sexual orientation or gender identity?


What concrete legislative and other measures is Australia taking to ensure that immigration detention is only rarely used and for the shortest period necessary?


According to the national report, the Australian Parliament established an Independent National Security Legislation Monitor in March 2010, which is notably tasked to assist ensuring that national laws conform to Australia's obligations under international law. What has been the contribution of the Monitor in ensuring that Australia's legislation conforms to international human rights law?


• Following the establishment of the National Congress of Australia's First People, what practical steps does Australia plan to take to ensure that the indigenous people of Australia have access to the same health services, education and to employment opportunities that non-indigenous Australians currently have? Does the Government have specific targets and a guided timeline to achieve their outlined goals?

• What action has Australia taken to address the discriminatory aspects of the Native Title system to ensure recognition, protection and enjoyment of the rights of Aboriginal and Torres Strait Islander Peoples to access and control traditional lands and take part in cultural life?

• Could you explain why Australia has placed a reservation on Article 4 (a) of the International Convention on the Elimination of All Forms of Racial Discrimination, which requires States Parties to "declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof"?

• Following the appointment of an Age Discrimination Commissioner, what plans does Australia have to appoint a commissioner dedicated exclusively to the rights of children within its NHRI?

• What steps is Australia taking to respond to the Concluding Observations of both the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination Against Women in relation to non-therapeutic sterilisation of people with disability, particularly girls and women with disability?

• How do you envisage Australia's Human Rights Framework will work without a legal basis upon which to start, such as a Federal Bill of Human Rights enshrined either within the Framework or within the Australian Constitution?

• Does the Australian Government plan to undertake a review of the country's Constitution and amend the issue of discrimination as implied by Sections 25 and 51 (xxiv)?

• What measures has the government taken to ensure consistency and equality across the individual States in recognising same-sex relationships?


UN delivers verdict on human rights record

... There was discussion of a treaty. Many countries raised the issue of not only Indigenous socio-economic disadvantage, but Indigenous disempowerment and exclusion from decision making and power structures and it is critically important that we not only talk about symbolic preambular constitutional recognition of Aboriginal and Torres Strait Islander peoples in Australia, but that we talk about something much more substantive, including a treaty. - Phil Lynch, Melbourne Human Rights Law Resource Centre, speaking from Geneva (ABC 'The World Today')

Michael Coggan reported this story on Tuesday, February 1, 2011 12:49:00

The Transcript - Source: ABC 'The World Today'

ELEANOR HALL: A United Nations assessment of Australia's human rights record has boosted the hopes of those pushing for an Australian Bill of Rights.

Overnight the committee made 145 recommendations and Australia's UN ambassador said the Federal Government would take note of them.

Phil Lynch from Melbourne's Human Rights Law Resource Centre was in Geneva for the meeting and he spoke to Michael Coggan.

PHIL LYNCH: Overnight the UN Human Rights Council adopted a report on Australia which included 145 recommendations to improve the promotion and protection of human rights in Australia.

Those recommendations came from more than 50 countries across the world; countries from the United Kingdom to the Unites States, Canada, Norway, New Zealand, Ghana, Mexico and South Africa. So a very diverse range of countries and addressed a diverse range of significant outstanding human rights issues in Australia.

So it is a very powerful mechanism. It involved the United States for example making a recommendation to Australia that we enact better human rights training for law enforcement officials and that arose from credible reports of law enforcement officials at times using excessive force and targeting vulnerable communities.

It involved another very close ally, Canada, making recommendations that Australia adopt a comprehensive charter of rights and similarly it involved the United Kingdom making recommendations that Australia commit to promoting substantive equality rather than just adopting the reactive system of anti-discrimination legislation that we currently have.

So they're recommendations that come from important partners and should be taken and will be taken very seriously by Australia.

MICHAEL COGGAN: So what were the issues that the reviewing nations highlighted, what did they focus on?

PHIL LYNCH: They dealt with at least 17 thematic issues which were raised by a coalition of over 70 NGOs of which the Human Rights Resource Centre was a part. Those issues included legislative and constitutional protection of rights, equality including same sex marriage equality, the use of force, conditions of detention, Australia's policy of mandatory immigration detention.

MICHAEL COGGAN: So from your point of view, where does the most work need to be done?

PHIL LYNCH: Well overnight, the Australian ambassador responded to the 145 recommendations and on behalf of the Government, he said that whilst they are not yet in a position to formally accept or reject any recommendations, they will commit to giving full and proper consideration to the recommendations and providing a formal response to the international community by June of this year.

So that means the Government has committed to fully and properly consider and re-consider matters such as a national human rights act, same sex marriage equality and mandatory immigration detention among others.

MICHAEL COGGAN: Though in the Australian Government delegation's response to questions about a charter or a bill of rights, Kate Lundy was saying that the courts are adequate to deal with issues of human rights.

Does that give you little hope for your push for a bill of rights?

PHIL LYNCH: I think that it is incumbent on the Government to, in good faith, give proper consideration to the recommendations that have been made by the international community.

We should as Australians, we count ourselves as principled advocates of human rights for all, seek to be as well known for the promotion and protection of human rights globally as we are for our barbecues and beaches. And at the moment it is a regrettable fact that we are much better known for matters such as Aboriginal disadvantage and mandatory indefinite detention of asylum seekers.

MICHAEL COGGAN: What about the treatment of Indigenous people in Australia, is there an urging for some form of treaty?

PHIL LYNCH: There was discussion of a treaty. Many countries raised the issue of not only Indigenous socio-economic disadvantage, but Indigenous disempowerment and exclusion from decision making and power structures and it is critically important that we not only talk about symbolic preambular constitutional recognition of Aboriginal and Torres Strait Islander peoples in Australia, but that we talk about something much more substantive, including a treaty.

ELEANOR HALL: That's Phil Lynch from the Human Rights Law Resource Centre, speaking to Michael Coggan.

Human Rights Council - Universal Periodic Review - Australia

Source: United Nations - Office of High Commissioner of Human Rights (OHCHR)

Human Rights Council – Universal Periodic Review

For use of information media; not an official record

Date: Thursday 27 January 2011 (Afternoon)

Country under review: AUSTRALIA

Documents: National report: A/HRC/WG.6/10/AUS/1 and Corrigendum A/HRC/WG.6/10/AUS/1/Corr.1 ; Compilation of UN information: A/HRC/WG.6/10/AUS/2 ; Summary of stakeholders’ information: A/HRC/WG.6/10/AUS/3


Concerned country - national report

  • Represented by a 23-member delegation and headed by Senator Kate Lundy , Parliamentary Secretary to the Prime Minister, National report presented by the head of delegation


  • Commitment to a fairer and more inclusive country- Human rights obligations are taken very seriously with broad range of laws to promote and respect human rights
  • Strong engagement of Australian Human Rights Commission in a Democratic And Multicultural Society
  • Challenges in achieving gender equality, reducing violence against women and realising the rights of persons with disabilities
  • Human rights framework initiative launched in April 2010
  • Commitment to implement the Millennium development Goals
  • Commitment to ensure national reconciliation with the formal Government’s Apology to Indigenous People, in particular the Stolen Generations
  • Implementation of the “closing the gap” campaign to overcome the gap between non indigenous and indigenous Australians
  • Financial support to OHCHR , particularly for the Asia-Pacific region; funds will be also provide to the Asia pacific forum

Interactive discussion

Number of States taking part in the discussion

  • Member States: 24 Inscribed : 65
  • Observer States: 29

Positive achievements

  • National Human Rights Framework
  • “Closing the gap” campaign for reconciliation and improving the quality of social welfare
  • Efforts to involve NGOs in the human rights agenda
  • Financial assistance provided by the Australian agency for international development programme (AusAID)
  • Appreciation for the public apology to Indigenous Australians
  • Ratification of most of the core international human rights instruments

Issues and questions raised

  • Persistent disadvantages of indigenous Australians, need for progress
  • Racial discrimination, rights to housing, education, health and employment
  • Promotion of human rights education and training
  • Strengthening of the actions against human trafficking
  • Violence against women, minorities and indigenous peoples detainees need new efforts
  • Public funding for the provision of Muslim education
  • Absence of legal provisions regarding the prohibition of discrimination on sexual orientation


  • Enhance Australian anti –discrimination law
  • Ensure indigenous Australians are part of the social life, ensuring more equal protection of their rights for social inclusion
  • Ensure gender equality and protect rights of same sex –couples
  • Implement appropriate measures to overcome gap between indigenous and non indigenous people
  • Ensure independent investigations of police alleged abuses and improve the conditions of detention according to international standards and through the end of use of force
  • Asylum seekers ‘procedures have to follow the international standards
  • Take steps to eradicate domestic violence against women and children and violence against women, also in the workplace
  • Ensure fair and inclusive participation of minorities
  • Strive to end xenophobia and ensure the protection of migrants and asylum seekers
  • Lift reservations to the CRC
  • Enhance training for officials to respect the cultural specificities of the communities
  • Inadequate implementation of treaty bodies in domestic law
  • Strive for a constitutional recognition of indigenous peoples
  • Set up a National Children Commissioner
  • Remove restrictions on the right to strike

Response of the concerned country`

  • Australia is committed to human rights and has ratified key human rights instruments
  • Australia is considering acceding to the human rights treaties to which it is not yet a party
  • Australian new legislation provides for the protection of workers, including oversees workers
  • Aware of the need to fill the remaining gaps in the federal antidiscrimination law
  • Willingness to introduce legislation on sexual orientation
  • Willingness to promote the human rights education and training programmes
  • Strengthened consultations with Indigenous peoples to implement measures aiming at improving their situation
  • Racism and xenophobia forcefully condemned , enactment of the anti discrimination Act
  • Multicultural Advisory Council was set up to promote multicultural policies and activities, included in the field of education
  • Full recognition of equal treatment between men and women
  • Zero tolerance towards violence against women
  • Six priorities on social agenda focusing on, children, workless persons with children persons with disabilities and with mental illness; and closing the gap between non indigenous and indigenous Australians
  • 2010, adoption of new measures to monitor implementation of the counter terrorism legislation
  • Commitment to continue to combat human trafficking in Australia and in the region
  • Continue the enforcement of human rights, consider recommendations and the creation of public online access to human rights recommendations to enhance awareness and update the National human rights commission

Adoption of the report by the UPR working group scheduled on
Monday 31 January, 17:30 – 18:00

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