The national human rights reform agenda proposed in the national conversation initiative is considered by the Parliament, government and the non-government sector.
Progress indicators 1.11 and 1.12
Implementation of the national conversation initiative is viewed by stakeholders as
impartial, inclusive, participatory and consensus led. Parliament, government and non-government stakeholders access and engage with the relevant stages of the national
Free and Equal: An Australian conversation on human rights
‘I think a conversation on human rights is a very important issue for Australia and
commend and support the Commission in taking this issue forward.’
—survey respondent, Free and Equal Conference
The Commission commenced the Free and Equal: an Australian conversation on human
rights project (the National Conversation) towards the end of the previous reporting
period. It seeks to identify what an effective system of human rights protection for 21st
century Australia would look like, and what steps Australia needs to take to get there.
The purpose of the National Conversation is to examine Australia’s human rights system
as a whole and understand how well Australians’ rights are currently being respected,
protected, and fulfilled. This includes exploring: the effectiveness of Australia’s
system of anti-discrimination laws and its ability to ensure steps are taken to prevent
discrimination; positive measures to ensure rights are considered and upheld during
policy and law-making; and applying accountability processes to ensure progress
continues to be made towards fulfilling human rights.
Over this, and the previous reporting period, the President led an inclusive discussion about these issues and possible solutions. More than a 1,000 stakeholders from across Parliament, government, the business, legal and academic sectors and the community participated in the process, through submissions, consultation events, roundtables, technical workshops, key stakeholder meetings and a national conference attended by the UN High Commissioner on Human Rights, Her Excellency Dr Michelle Bachelet (see the Conference story below). Participant feedback supported the consultation process as engaging, participatory and inclusive, for example:
‘Especially well facilitated and inclusive.’
‘It was great that everyone had the opportunity to raise key human rights issues of concern.’
‘The workshop was very well run. Everyone had the chance to share their views.’
To start these discussions, the Commission released an Issues Paper describing the human rights landscape and asking general questions about priorities for reform. The Commission then released three technical discussion papers on discrimination law reform; ideas for increasing the positive framing of human rights in Australian legislation; and accountability mechanisms.
As a result, the Commission gained a comprehensive understanding of priorities for reform and reinvigorated a discussion across Australia about how to build an innovative and effective human rights framework for all.
The narrative emerging from the consultations is that Australia’s human rights framework (including anti-discrimination law and human rights scrutiny for legislation and policy) is not seen as positively protecting Australians’ rights to effectively prevent breaches. Our systems are piecemeal and lack comprehensive coverage.
In the coming year, the Commission will continue to engage with Parliamentary, government and non-government stakeholders to fine tune ideas, then release a range of detailed proposals to guide reform of Australia’s human rights framework. Many of these proposals will focus on reforming Australia’s federal discrimination laws. This builds on the Commission’s other work, including the National Inquiry on Sexual Harassment in Australian Workplaces and its report, Respect@Work. The proposals will also feed into the Commission’s advocacy as part of Australia’s engagement with the third cycle of the UN Universal Periodic Review to occur in January 2021.
The Commission aims to have a significant impact on the realisation of human rights for all Australians through this initiative. The Commission will continue to work with Parliament, government and the community to embed more effective human rights frameworks into our national processes.
Free and Equal National Conference, October 2019
‘the Commission is a leader in the space, and I think that it’s a trusted institution … you need trusted institutions that are evidence based to lead such projects.’
The Conference held in Sydney featured UN High Commissioner for Human Rights, Her Excellency Dr Michelle Bachelet, as the keynote speaker. The Conference program was shaped around the human rights ‘respect, protect, fulfil’ framework. It featured a series of panel discussions on key issues for human rights nationally including: Indigenous rights, the role of different communities and sectors in protecting rights, balancing competing rights, and young people and the future of human rights. The program also included a fireside chat focusing on Hakeem al-Araibi’s experience as a refugee and being detained in Thailand.
The range of featured voices at the conference aimed to encompass the varied perspectives and experiences of human rights nationally. The Conference provided a platform to voice and hear these diverse and sometimes competing experiences of human rights. Evaluation of the 400 participants showed support for the Commission’s leadership with many respondents stating that taking part had been valuable and beneficial:
- 97% of survey respondents said the Commission’s leadership was important.
‘The Commission is highly respected and informed and needs to keep taking the lead here.’
‘Free and Equal not just 'important' but, I think, critical!’
- 98% found participating worthwhile.
‘Fantastic experience. Really challenged my mind.’
‘The program today has such a wonderful breadth of information and topics helping us to reflect on what we can take back and work on within our organisations.’
- 73% increased their understanding of human rights in their own contexts, and 78% found they developed greater awareness of human rights in other contexts.
‘The diversity of areas of rights was extremely helpful. It helped emphasise that human rights are part of the broad everyday context of our lives.’
Progress indicator 1.13
Commission recommendations to the United Nations Human Rights Council as part of Australia’s 3rd Universal Periodic review are reflected in the Council recommendations to Australia.
Australia’s 3rd Universal Periodic Review
Australia was due to appear before the Human Rights Council as part of the 3rd cycle of the Universal Periodic Review (UPR) in November 2020. However, due to the COVID-19 pandemic, this appearance has been postponed to January 2021.
The Commission, as Australia’s A-status National Human Rights Institution (NHRI), plays a distinct role in the UPR process by providing an independent assessment of Australia’s human rights situation and the steps taken by the Australian Government since the last appearance.
The Commission made its submission to the UN in July 2019. It describes the status of human rights in Australia and makes 48 recommendations about ongoing challenges. The Commission also submitted an ‘implementation matrix,’ reflecting on the 290 recommendations made by 101 countries in Australia’s second-cycle review.
Throughout this process, the Commission is engaging with stakeholders across Parliament, government, and the non-government sector. This includes providing input and feedback to the Australian Government on its report to the UPR, engaging in discussions about potential ‘voluntary commitments’ that could be made through this process, and coordinating with non-government organisations (NGOs) to maximise our collective impact through advocacy.
The Commission will continue to work towards securing tangible outcomes through the UPR process over the coming year.
The leadership and advocacy of Commissioners on thematic areas or identified human rights issues, improves the enjoyment of human rights by affected groups.
Progress indicator 1.21
Research, reporting and advice activities of the Commission:
- Are viewed as evidenced, persuasive and credible by stakeholders
- Increase understanding of the human rights issues and impacts raised
- Strengthen stakeholder capacity to promote and advocate for the human rights issues raised.
Highlighting the human rights impacts during the COVID-19 pandemic
COVID-19 has posed unique challenges for government, which has been required to act quickly in response to the evolving threat to public health.
The Commission has undertaken a number of activities to ensure that the human rights impacts of the COVID-19 pandemic are understood.
Bringing a disability lens to the health policy response to Disability and COVID-19
In recognition of the impact of the pandemic on people with disability, the Australian Government established the Advisory Committee on the Health Emergency Response to Coronavirus for People with Disability to advise the Chief Medical Officer. Commissioner Gauntlett was invited to join the Committee, together with other colleagues in the disability sector with lived experience of disability.
The Advisory Committee published the Management and Operational Plan for COVID-19 for People with Disability. In support of the Plan, the Commission was asked to prepare a set of Guidelines – Guidelines on the rights of people with disability in health and disability care during COVID-19. The Guidelines examine the rights outlined in the Convention on the Rights of Persons with Disabilities that may be at particular risk during a pandemic and provide practical examples for practitioners and people with disability. The Guidelines, including an Easy English version, were published in August 2020.
Racism and COVID-19
A significant issue during the pandemic has been a rise in racism and race hate. Commissioner Tan led the Commission’s response to address this through co-operation with federal and state governments and other organisations to deliver practical information and support projects coupled with strong messages that racism is unacceptable. A major outcome of the approach has been extensive reach into multicultural communities, with tailored information and practical support.
For example, over March and April 2020, Commissioner Tan attended seven roundtables led by the Department of Home Affairs seeking the views and advice of more than 50 multicultural community leaders on the impact of COVID-19 on their community. Key findings included concern about COVID-19 related racist incidents and the priority to improve access to in-language information and promote strong anti-racism messages. The Commission’s response strategy included partnering with the Department of Home Affairs to:
- translate factsheets into 64 languages outlining racial discrimination, race hate and the process for making a complaint to the Commission.
- collaborate on the development of its Help Stop Racism campaign in English and 14 other languages. The campaign launched in June 2020, providing messages of support to diverse Australians affected by COVID-19-related racism and information about what to do in the event of a racist incident, for both those directly affected and for bystanders. In its first month the campaign delivered almost twelve and a half million impressions across seven digital and social media channels, resulting in more than 41,000 clickthroughs to the related website.
An increase in racist cyber abuse related to COVID-19 was another priority issue uncovered by the roundtables. In this instance, the Commission collaborated with the e-Safety Commission to translate a video highlighting support for victims of cyber abuse into 12 languages, along with new multilingual resources to support targets of cyber abuse in diverse communities.
Human rights and the COVIDSafe App
In April 2020, the government introduced the COVIDSafe App, to assist with contact tracing. To address concerns about the possible impact of the app on the right to privacy, the government introduced legislative measures to limit the uses of information gathered from users, first by making the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements – Public Health Contact Information) Determination 2020, and subsequently by the passing of the Privacy Amendment (Public Health Contact Information) Bill 2020.
Prior to the launch of the app and the Biosecurity Determination, Commissioner Santow met with government and other stakeholders to discuss the privacy implications of the app, and to provide advice about the need to ensure robust privacy protections were included in both the app and the Determination.
In May, the Commission engaged closely with the government to provide detailed input about the proposed protections in the Privacy Amendment Bill – and a number of the Commission’s suggestions for enhanced protections were reflected in the Bill. The Commission made early public comment about the extent of these privacy protections to increase public confidence in, and therefore the use and effectiveness of, the app.
Gender and COVID-19
Commissioner Jenkins convened a group of fellow gender equality leaders and experts, including the Ambassador for Women in STEM (science, technology, engineering and mathematics), the eSafety Commissioner and the heads of ANROWS (Australia’s National Research Organisation for Women’s Safety) and Our Watch, to identify key issues and actions to promote and protect gender equality during the COVID-19 period and share lessons learned.
Commissioner Jenkins advocated for and participated in a Stakeholder Roundtable on COVID-19 Response and Recovery hosted by the Minister for Women –and for a gender-inclusive economic response to COVID-19 in meetings with a range of government and business stakeholders, including the Prime Minister’s Office and State and Federal Ministers.
Ageism and COVID-19
During COVID-19, all three of Commissioner Patterson’s priority areas have been affected – older women at risk of homelessness, older workers and elder abuse.
In support, Commissioner Patterson has been active in working with stakeholders to develop elder abuse messaging and to monitor call numbers to the national ELDERHELP phone line (1800 353 374) in the expectation of a rise in cases during physical distancing and beyond.
Commissioner Patterson is monitoring mainstream media and social channels for ageist comments and responses towards both older and younger Australians. She is also dealing with issues raised by community groups and connecting them with relevant services.
Looking ahead, Commissioner Patterson is working with the Collaborative Partnership for Mature Age Employment to create strategies to assist older workers as Australia moves into the economic recovery phase of the pandemic.
Children and young people, and COVID-19
Kids Helpline and the Australian Human Rights Commission came together to examine the main COVID-19 concerns that children and young people raised with Kids Helpline counsellors between January and the end of April 2020. Some main themes include: mental health concerns, social isolation, educational impacts and impacts on family life, among others.
This national insight into children and young people’s concerns will be used to guide the types of supports they are offered in the short-term, as well as into the recovery phase. A report analysing the contact data was published in September 2020.
Aboriginal and Torres Strait islanders and COVID-19
Commissioner Oscar was a member of the Western Australian Government’s advisory committee for COVID-19 in the Kimberley Region. She has fed her experiences from this into national discussions to ensure appropriate protections are in place to protect Aboriginal communities from the spread of the virus.
Human Rights and technology
This multi-year project commenced with the publication of an issues paper, launched at an international conference, hosted by the Commission, in Sydney, July 2018. The project aims to facilitate and lead a public conversation on how to protect human rights in an era of unprecedented technological development.
In this last year, a wide-ranging, inclusive consultation was conducted, drawing on a broad stakeholder network of experts, high-level decision makers and other key stakeholders. The consultation involved several parts undertaken across this and the last reporting period:
- The issues paper posing ten high-level questions. To discuss these, around 380 invited participants from academia, government, civil society and the technology, consultancy and finance sectors attended roundtables in Sydney, Canberra, Melbourne, Brisbane, Perth and Newcastle.
- Co-authoring of a white paper, with the World Economic Forum, focusing on leadership and governance related to AI, published in January 2019. The Commission hosted a symposium with 65 senior representatives from government, industry, academia and civil society in March 2019.
- Consultations and submissions on a substantial discussion paper outlining proposals for change and released in December 2019. Proposals focused on governance and regulation for new technologies; the use of artificial intelligence (AI) in decision making (including how automation, predictive analysis and data mining can impact human rights); and how to ensure new and emerging technologies are accessible for people with a disability.
Together, the consultation stages have delivered an inclusive conversation, drawing together stakeholders with often differing vested interests, to consider significant, and pressing, areas of Australian public policy. These metrics reflect the high level of engagement during this period:
- 289 written submissions from organisations and individuals, across three consultation publications
- 581 invited experts and stakeholders participated in roundtable consultations
- estimated engagement by the Commissioner with 14,000 people at international and domestic speaking events, conferences and expert meetings relevant to the project.
A review of the engagement activity and feedback to date indicates these outcomes:
- A shift in the conversation.
The Commission’s work has led to increased recognition of the social impact of technology as a human rights issue.’
this project…it’s given us huge opportunities already to have conversations and to be involved in conversations that we would not have otherwise been involved in. It’s not just a discussion paper, it’s not just a project. It’s changing the conversation.’
—participant, Discussion Paper Roundtable on Accessible Technology
- A collaborative and inclusive platform.
Attracting engagement from diverse stakeholders, and high calibre domestic and international experts, has in turn contributed to broader awareness of the human rights impact of technological development.
‘ACOLA congratulates the Commission for their inclusive and comprehensive consultation with stakeholders across all sectors and interest groups and welcomes the proposals from the Commission motivated to ensure human rights are protected.’
—Australian Council of Learned Academics, submission to Discussion Paper
‘We welcome the process that has taken place so far to inform the Discussion Paper. We believe that this work has resulted in well-balanced and pragmatic proposals.’
—SAS Institute, submission to Discussion Paper
- Developed capability to define the issues and identify solutions.
The Commission has developed the knowledge base and expertise to analyse complex social issues related to the impact of the design, development and use of new technologies, and put forward regulatory solutions.
‘We congratulate the AHRC on the significant stakeholder and academic research undertaken to develop the proposals put forward in the Paper. The work makes an important contribution to this emerging area of discussion in Australia and internationally.’
—Telstra, submission to Discussion Paper
‘The discussion paper is an important contribution to thinking through profound change. By anchoring the government’s response and responsibilities in the rule of law, it provides a compelling road map to manage change.’
—Australia Institute’s Centre for Responsible Technology, submission to Discussion Paper
- Recognition of Commissioner leadership, expertise and experience.
Commissioner Santow is consistently invited to comment as an expert, by media, at domestic and international public speaking events, and in key expert fora. An example of the latter is the Commissioner’s work with the Attorney-General’s Department and the Australian Information and Privacy Commissioner to ensure that privacy protections were embedded in the COVIDSafe App launched in April 2020.
Wiyi Yani U Thangani (Women’s Voices)
‘It is all about self-determination and participation and respecting our culture and how do we pick our kids up…we make ourselves powerful, as an individual, [make ourselves] strong.’
This multiyear initiative led by Commissioner Oscar builds on the legacy of the last national consultation with Aboriginal and Torres Strait Islander women and girls in the 1986 Women’s Business Report. It aims to advance the realisation of human rights for Aboriginal and Torres Strait Islander women and girls, their families and their communities.
The first phase of national consultation and research was completed in the previous reporting period, and involved 105 engagements, in 50 locations enabling the Commissioner and team to meet with 2,294 Aboriginal and Torres Strait Islander women and girls. Over 100 submissions and over 300 survey responses were also received.
This reporting period has been devoted to analysing the data to give voice to Aboriginal women and girls. The final report of the project will be tabled in late 2020.
Women have been clear that they and their families must play a key role in decision-making. Aboriginal and Torres Strait Islander peoples know best what is in their own interests. It is they who have the solutions. What is required is an enabling environment in which Aboriginal and Torres Strait Islander Peoples can flourish. This will require Australian Governments at the Federal, State and local levels to change ways of working so that processes, programs and services are community-led, strengths-based, and trauma-informed.
The Commissioner has been engaged with the National Indigenous Australians Agency to discuss the preliminary findings of the project and to identify ways that these findings can be built in policy approaches by the government. The preliminary findings of the report reinforced the messages that were also provided to the government through the Closing the Gap refresh process, that culminated in a new national agreement in mid-2020.
Stage two of Wiyi Yani U Thangani
Prior to the finalisation of the consultation report, the Government agreed to fund a second stage of the project.
This commenced with additional consultations with senior female cultural elders in Aboriginal communities. These consultations were curtailed by the COVID-19 pandemic, which limited the ability to meet with women in remote locations and face to face. The perspectives of the senior women who were consulted has been incorporated into the consultation report.
The remainder of stage two has been delayed due to the COVID-19 pandemic and will occur in the next financial year and will consider the changes required for the system to be transformed. To do this, Commissioner Oscar and her team will focus on what First Nation children and their families need to enhance their health and wellbeing. This approach will address the root causes of systemic issues such as preventing early life trauma. In doing so, the aim is to dramatically reduce punitive interventions in the early years of life, and to begin to alter a life-course for the better.
Children’s Rights Report 2019 – In Their Own Right
This statutory report tells the story of how well children’s rights are protected and promoted across Australia. It covers all the basic rights that children need in order to do well, like having a home and a family, getting a good education, being able to access quality health care, being safe from harm, and having a voice.
It reflects issues raised by the UN Committee on the Rights of the Child when Australia appeared before it in September 2019, and also includes their concluding observations on Australia’s progress in meeting its obligations to children under the Convention on the Rights of the Child.
In Their Own Right is intended to help hold Australian governments to account for the wellbeing of our children, now and into the future. It makes recommendations to improve child wellbeing in Australia and honour our obligations to Australian children under the Convention on the Rights of the Child. It forms a baseline against which progress can be measured when Australia next appears before the UN Committee in January 2024.
As it was the final report of former Commissioner Mitchell, Australia’s inaugural National Children’s Commissioner, it covers the work she undertook since beginning her term in 2013.
What’s age got to do with it?
In this period Commissioner Patterson commenced a project on age stereotyping across the lifespan, to be completed in the coming year. The rationale behind this initiative is to investigate age-based societal attitudes for both younger and older adult cohorts through a human-rights lens. While there is existing Australian and international research on ageism-based attitudes experienced by older people, there is a gap in research about the experience of ageism (as evidenced by ageist stereotypes and myths) and resulting social and other exclusions for younger adults. The work complements existing research on older people by the Commission and other organisations and will contribute new insights into age stereotyping in Australia and how ageism affects generations across the lifespan.
Progress indicator 1.22
Instances of programs attracting strategic partnerships that advance the priority human rights issues we have advocated for.
Disability Employment Initiative
The Australian Bureau of Statistics reports that the labour force participation rate for people with disability (53.4%), has remained relatively unchanged for the previous 20 years.
Under Commissioner Gauntlett’s term goal to increase access to meaningful employment opportunities for people with disability, the Commission entered a three-year strategic partnership with the Paul Ramsay Foundation in this reporting period.
The program aims to increase capacity among the leaders of Australia’s largest public and private sector employers – and their organisations – to address employment barriers for Australians living with disability.
Key features of the program include establishing and working with an influential ‘champions network’ of employers, and an ‘ambassador’ group comprised of people with lived experience of disability. In the coming year, the capacity building program will be delivered, and resources and a web portal will be developed ahead of a second phase to pilot employment programs in situ.
A comprehensive monitoring and evaluation plan will support the program to make an evidence-based assessment of the program’s progress, improvements, quality, value, and impact in the coming years.
Monash Housing Project
Commissioner Gauntlett’s term goal to increase access to accessible housing for people with disability led to another strategic partnership with the Department of Architecture at Monash University. The project will explore how to use modifications that are simple, flexible and affordable to make housing accessible and adaptable. It will also seek to assist people with disability to identify housing suitable for modification. Key features and milestones will include:
- A positioning research report, which will explore current approaches to the adaptation and modification of existing housing stock to meet a range of access needs. The report will explore relevant economic, regulatory, technological, construction and other frameworks that impact on accessible housing.
- Delivery of three design research units. Students will undertake design research developing modification-based solutions to the housing access and disability needs of people with disability.
- An exhibition of the resulting research developed through the university’s ‘design research’ units.
Close the Gap Campaign Steering Committee
The Close the Gap campaign aims to raise the health and life expectancy of Aboriginal and Torres Strait Islander People to that of the non-Indigenous population within a generation: to close the gap by 2030. It aims to do this through effective advocacy for the implementation of a human rights-based approach to Indigenous health as set out in former Commissioner Calma’s Social Justice Report 2005.
Co-chaired by Commissioner Oscar, the campaign consists of the Close the Gap Campaign Steering Committee– a coalition of 52 of Australia’s peak Aboriginal and Torres Strait Islander health organisations, health professional bodies and human rights organisations. The campaign’s secretariat operates from the Commission.
The Campaign released its Annual Report, ‘We Nurture our Culture for our Future and our Culture Nurtures Us’ on National Close the Gap Day, 20 March 2020. The report, again prepared by the Lowitja Institute, highlights the evidence that when Aboriginal and Torres Strait Islander people have legitimate decision-making power over their own lives the outcomes are far better. This is demonstrated in the report through case studies and evidence with a focus on the cultural determinants of health.
Progress indicator 1.23
Instances of changed Federal and state government policy, practice and legislative change that reflect our advice.
Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report
‘I thank you Commissioner Kate Jenkins, for giving many of us a voice during this inquiry, and I hope that those of us who have spoken out can find comfort in knowing that no matter how small or large your contribution…this inquiry will bring those changes forward. By speaking out that others will be encouraged to also.’
—Submission 252, Respect@Work report
In this reporting period Commissioner Jenkins released her Respect@Work report. The report, tabled in Parliament on 5 March 2020, is the culmination of an 18 month-long National Inquiry into Sexual Harassment in Australian Workplaces. The Inquiry drew on a national survey of 10,000 workers, 60 public consultations with 600 participants, and 460 written submissions, as well as comprehensive modelling of the economic costs of workplace sexual harassment by Deloitte Access Economics.
‘The process lifted me temporarily out of a space that was drowning me in many ways. I felt validated and respected by the enquiry process very rare in these competitive ruthless times.’
—Submission 401, Respect@Work report
‘They won, but the fact that I can write this submission means that I’ve not lost.’
—Submission 302, Respect@Work report
The inquiry examined the nature, prevalence, and drivers of sexual harassment in Australian workplaces, and measures to address and prevent it– finding that sexual harassment is pervasive, occurring in every industry and across every level in Australian workplaces.
It found that the current system for responding to sexual harassment places a disproportionate onus on the victim to complain, despite the fact that only 17% of survey respondents who said they were sexually harassed at work made a complaint. The Inquiry also uncovered the high economic cost of sexual harassment. Deloitte Access Economics estimated that workplace sexual harassment cost the Australian economy $3.8 billion in 2018.
Respect@Work revealed an urgent need to shift from Australia’s current reactive, complaints-based approach to one that requires positive action from employers, and which focuses on prevention. The report made 55 recommendations to achieve this shift, grouped under five key areas of focus and improvement.
The Commissioner launched the report alongside the Minister for Women, Senator the Hon Marise Payne, on 6 March 2020.Minister Payne and the Attorney-General, the Hon Christian Porter MP, welcomed the report and said the Australian Government would carefully consider its recommendations. They also underlined the government’s commitment to ensuring Australian workplaces are safe and free from sexual harassment. In the coming year, the Commission will review the impact of Respect@Work,including the government’s forthcoming official response to the report.
Through Respect@Work, the Commission aims to make a significant contribution to eliminating workplace sexual harassment, helping to ensure safer and more productive Australian workplaces, and combatting violence against women. Monitoring indicates that the report was well-received by stakeholders and the wider community, and that the research, survey data, economic modelling, findings and recommendations form a high-quality foundation for governments and businesses to take concrete actions to tackle workplace sexual harassment.
‘Kate Jenkins’ important report, Respect@Work, confirms that the right of workers to be free from sexual harassment is a workplace right and a health and safety right, as well as a human right.’
‘The release today of the report and recommendations of the Sex Discrimination Commissioner’s National Inquiry into Sexual Harassment in Australian Workplaces, is an important step in implementing necessary changes.’
—National Employer Association Ai Group, 2020
‘The Minerals Council of Australia (MCA) commends the Commissioner on bringing these cases to light. The MCA welcomes the comprehensive recommendations which proposes a new approach for government, employers and the community to better prevent and respond to sexual harassment in the workplace.’
—Minerals Council of Australia, 2020
In the reporting period, Commissioner Jenkins has also hosted or participated in nine webinars, reaching an audience of over 1500 people, to share Respect@Work findings and secure stakeholder buy-into its recommendations. Each webinar focused on recommendations that were relevant to different stakeholder groups. To date, legal practitioners, employment law experts, unions, large employer groups, small and medium-sized employer groups, frontline practitioners, members of the Diversity Council of Australia, ACON (AIDS Council of NSW) members, and SAGE (Science in Australia Gender Equity) members.
In the coming year,Commissioner Jenkins will continue to host and participate in Respect@Work webinars and discussions with stakeholders to implement the recommendations.
Outcome 1.3 [PBS criterion]
Law and policy makers, at all levels, consider and address the human rights impacts we identify through our submissions, Inquiries, research, reports and United Nations engagement.
Progress indicator 1.31 [PBS target]
High proportion of Committee inquiry reports reflect and cite the Commission’s advice.
Our human rights scrutiny and parliamentary committee work is led by the Commission’s President. We contribute to parliamentary processes, seeking to ensure that our expertise on human rights, with a particular focus on Australia’s international human rights obligations, is applied to matters under consideration by the Parliament, by providing a persuasive voice when scrutinising proposed laws and policies.
This year, the Commission made 48 submissions to parliamentary committees, government inquiries, and other legislative review processes – providing specialist, independent policy and legal analysis of the human rights impact of current and proposed laws and on public policy issues. In this reporting period, there were no submissions to United Nations processes.
We evaluate the impact of the Commission’s submission work on law and policy by monitoring appearances before committees and inquiries, citation in any reports, and examining the extent to which any recommendations we make are reflected in any committee reports.
These metrics help demonstrate the extent to which the Commission’s contributions influence public debate on proposed laws and policies and provides valuable input to inquiries into social policy issues. In this period:
- 100% of the available reports cited our submissions.
- Commissioners were invited to appear 15 times at inquiry hearings in this period – a further indicator of the value of the Commission’s contribution,
- Public comment on the value of the Commission’s input to parliamentary committee and other legislative review processes by committee bodies. For example, in an appearance before the Parliamentary Joint Committee on Intelligence and Security, one of the Committee members, the Hon Mark Dreyfus QC MP, noted that:
‘the Human Rights Commission generally has been of great assistance to this committee over decades in making specific suggestions on particular bills.’
—Hansard transcript, 13 August 2019
Case study 1: Submission to the Independent National Security Legislation Monitor’s review of citizenship loss provisions
In June 2019, the Commission made a submission to the Independent National Security Legislation Monitor’s (INSLM) review of the operation, effectiveness and implications of the terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007 (Cth) (the Act). These provisions govern the circumstances in which dual citizens can lose their Australian citizenship for particular terrorism-related conduct or convictions. The law currently operates to automatically remove a person’s citizenship if they engage in certain conduct deemed to repudiate their allegiance to Australia, and also permits the Minister to make a determination to remove someone’s citizenship as a result of certain criminal convictions.
In both its submission to the INSLM, and in the related public hearing, the Commission expressed serious concerns about the following aspects of the regime: the automatic nature of citizenship loss, the impacts on children as young as 10-years old, which may contravene the Convention on the Rights of the Child (CRC), the lack of procedural safeguards including merits review, the ambiguity of certain conduct that could result in citizenship being lost, and the retrospective application of the regime.
A key recommendation of the Commission was that citizenship loss for dual citizens should never occur automatically but should rather require a positive decision to be made by a decision-maker and follow a relevant and serious criminal conviction.
The INSLM Report considered the human rights implications and referenced various aspects of the Commission’s submission and evidence given at the hearing by Commissioner Santow, with particular attention paid to the Commission’s analysis of children’s rights. The INSLM made the following conclusions and recommendations that:
- automatic citizenship loss is inconsistent with obligations under the CRC, in line with the Commission’s submission,
- the automatic citizenship loss provisions ‘do not pass muster’ for several reasons, including many highlighted by the Commission,
- the provisions be urgently repealed with retrospective effect and replaced with a Ministerial decision-making model to remove Australian citizenship based on a person’s conduct.
In response to the INSLM report, the government introduced the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (Cth), which implements some (but not all) of the INSLM’s recommendations. The Bill was referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry. The Commission also made a submission to the PJCIS with respect to the Bill and appeared at a public hearing in October 2019. As of 30 June 2020, the PJCIS had not yet published its report.
Case study 2: Submission to the PJCIS Review of the Identity-Matching Services Bill 2019 and the Australian Passports Amendment (Identity-Matching Services) Bill 2019
Introduced in July 2019, the Identity-Matching Services Bill 2019 (the IMS Bill), authorises the Department of Home Affairs (DOHA) to create and maintain two centralised facilities for sharing facial images and other identity information between government agencies and, in some cases, private organisations. These facilities include an ‘interoperability hub’ (essentially a router that agencies and organisations can request and transmit information through’) and a National Driver Licence Facial Recognition Service (NDLRFS), a federated database of information contained in government identity documents. The Bill also allows for the Minister to make rules defining new identity-matching services (IMS) as well as for defining new kinds of ‘identification information’, and allows for disclosure of identification information via the ‘interoperability hub’.
The Commission’s submission to the PJCIS review, and oral evidence provided at the public hearing, expressed serious concerns with several aspects of the IMS Bill, including:
- that some of the purposes for which IMS may be used for do not justify the potentially significant limitation on privacy and other rights
- the broadness of the provisions and the conferral of a discretionary power on department secretaries determine how key aspects of the Bill will operate
- the Minister’s rule-making power to define new kinds of identification together with the Minister’s power to define new IMS,
- some of the IMS could allow for intrusive surveillance in public places,
- the potential for personal information collected for particular purposes to be used for different purposes (‘function creep’),
- the fallibility of biometric facial recognition technology.
The Commission recommended that either the IMS should not proceed or, alternatively, that it be amended so that core elements of the ‘interoperability hub’ are specified in the IMS Bill, that access to the face identification service (FIS) is only available on the issue of a warrant, and any identification information disclosed in response to a request for an IMS is not retained beyond the time necessary to verify or establish identify and is not used for any other purpose than establishing or verifying identity. The Commission also recommended that the provisions defining each of the IMS should be redrafted so that the functionality is fully defined in the IMS Bill, and that the Minister’s rule-making powers to define new kinds of identification and new IMS services should not be passed.
In its report, the PJCIS referenced a wide range of issues identified in the Commission’s submission, through both direct quotes and in a detailed summary of the Commission’s main concerns. The Commission’s submission was the most frequently cited non-Government submission (31 citations), and John Howell’s evidence was also directly quoted twice, including in the substantive analysis by the Committee on the question of whether the Face Identification Service should only be available on the issue of a warrant.
A number of the findings and recommendations of the PJCIS in its Report are consistent with those made by the Commission in its submission. Most significantly, and in line with the Commission’s principle recommendation, the PJCIS recommended that the IMS Bill be redrafted and that, following its reintroduction to the House, it should be referred to the Committee for further review.
Progress indicator 1.32
Instances of our recommendations to UN mechanisms being reflected in treaty body concluding observations and other reports.
United Nations Engagement and Scrutiny
As a national human rights institution, the Commission has a role in engaging with UN human rights mechanisms, including the UN Human Rights Council, treaty bodies and special procedures (such as special rapporteurs). This role is independent of the Australian Government and non-government organisations.
In this period, Commissioner Gauntlett and Commissioner Mitchell engaged with two treaty processes. Both engagements meet this indicator, being effective in getting our recommendations reflected in the respective treaty body concluding observations reports.
Convention on the Rights of Persons with Disabilities (CRPD)
The CRPD reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. It clarifies how categories of rights apply to persons with disabilities, identifies areas where reasonable adjustments are to be made for persons with disabilities to effectively exercise their rights, and identifies areas where rights must be reinforced. Having ratified the CRPD in 2008, Australia is required to give ‘periodic reports’ to the UN CRPD Committee. This process provides an opportunity for public discussion and scrutiny of the Government’s performance under the CRPD.
Australia submitted its combined second and third periodic reports at the Committee’s 22nd session, held in September 2019 in Geneva. Commissioner Gauntlett and senior Commission staff provided oral and written submissions, which assisted the Committee with its assessment of Australia’s compliance with the CRPD.
To determine the effectiveness of the Commission’s participation in the review process, we examined the extent that our recommendations were considered in the Committee’s Concluding Observations report.
The assessment indicates that our work did inform the Committee’s concluding observations, specifically:
- most of the Commission’s 58 recommendations were reflected in the report.
- all three identified ‘priority areas’ were included, with two of those recommendations being identified as ‘urgent measures,’ and
- specific reference was made to the Commissions 2018 report: ‘A Future Without Violence’ – the Committee recommended that its findings be implemented.
Convention on the Rights of the Child (CRC)
Every five years, the Australian Government reports to the United Nations Committee on the Rights of the Child on how children are faring in Australia and what it is doing to protect children’s rights.
In February 2019, Commissioner Mitchell addressed the UN Committee and assisted them in looking at the major issues facing children living in Australia. Following this, in this reporting period, the Committee provided the Australian Government with a list of issues to address in writing by August 2019. In this same period, the Australian Government appeared before the Committee in Geneva (September 2019). As part of this process, Commissioner Mitchell met with the Committee to help in its deliberations. Subsequently, the Committee issued its concluding observations on Australia’s progress in meeting its obligations to children under the Convention on the Rights of the Child.
In examining the effectiveness of our participation through the extent to which our recommendations were considered in the Committee’s concluding observations report on Australia’s progress in meeting its obligations to children under the Convention on the Rights of the Child, we found that, of 60 recommendations made to the Committee, 65% of these were reflected in the Committee’s own recommendations.
Progress indicators 1.33 and 1.34 [PBS targets]
Respectively: The majority of our applications to the courts for leave to appear are accepted; Instances of our court submissions reflected in the final judgment of the matter.
Contribution of expertise on human rights to court process
The Commission has the power to intervene, with the leave of the Court, in proceedings that involve issues of race, sex, age and disability discrimination, human rights issues and equal opportunity in employment.
In this period, the Commission made 5 applications for leave to intervene, with all being granted by the Courts. Judgment was handed down in four of the matters in which we intervened. The case study below is an analysis developed from one of the four judgments and provides an illustration of our submissions being reflected in the final judgment.
Case study 3: CLM18 v Minister for Home Affairs  FCAFC 170
This case dealt with the question of what amounts to a fair process for assessing the protection claims of an asylum seeker.
Between 13 August 2012 and 31 December 2013, around 30,000 asylum seekers arrived in Australia by boat. This group was referred to by the Australian Government as the ‘legacy caseload’. They were initially unable to apply for protection visas because of a statutory bar in s 46A of the Migration Act 1958 (Cth). After temporary protection visas were reintroduced, the statutory bar was progressively lifted for members of the legacy caseload between 2015 and 2017. In May 2017, the Australian Government set a deadline of 1 October 2017 for applications to be made. At the time the deadline expired, there were 71 people who had not lodged an application.
The Department of Home Affairs established an internal process to deal with the claims made by the 71 people who missed the deadline. This involved a desk review of documents already held by the Department to see if these people had plausible protection claims and compelling circumstances for missing the deadline. However, the people were not given an opportunity to make further submissions or to comment on adverse information held by the Department.
The Department said it was not required to afford people ‘procedural fairness’ because the process it established was ‘non-statutory’. However, the Full Court of the Federal Court agreed with submissions made by the Appellant and the Commission that the process was statutory and was required to be procedurally fair. The High Court refused the Minister special leave to appeal.
As a result of the judgment, the Department has established a new process for the people who missed the deadline. They will be provided an opportunity to make submissions to the Department, and all people who raise plausible protection claims will have their cases referred to the Minister for consideration of raising the bar under s 46A.