EXECUTIVE SUMMARY
EMBARGOED UNTIL 11.00AM, THURSDAY 7TH JUNE 2001

THE AUSTRALIAN HUMAN RIGHT'S REGISTER
14 May 2000 - 13 May 2001

Compiled by the Catholic Commission for Justice, Development and Peace, Melbourne

Having regard to the public interest in both positive and negative developments concerning human rights, the Catholic Commission for Justice, Development and Peace of the Melbourne Archdiocese (CCJD&P) decided to establish a yearly Register to record perceptions of such occurrences after 1 September 1997. Any non-government organisation (NGO) was invited to submit material which it thought appropriate for entry into the Register. Accordingly, while each entry in the Register records a submission from an NGO, it does not necessarily reflect or record the views of the CCJD&P.

1. INTRODUCTION

The Melbourne Catholic Commission for Justice, Development and Peace (CCJD&P) aims to help educate and give leadership to the Catholic and wider community in the Gospel message of justice and in the social teachings of the Church in areas of public policy. The CCJD&P Charter requires the CCJD&P work for justice in public local, and national structures. It seeks to achieve these ends through research, analysis, working with parish networks, public forums, in schools and in the media. The CCJD&P's role is also to prepare submissions and make representations to government, politicians, public inquiries and other agencies. It monitors development and implementation of social policy as it affects social justice and performs an advocacy role on a variety of social justice issues.

Government and its institutions must make decisions in a manner that respects human rights and the dignity of citizens and must act consistently with the international conventions it has signed and ratified. Otherwise, the act of ratifying becomes merely "window dressing".

The CCJDP's Human Rights Register depends on Non-Government Organisations to report human rights developments. Non-Government Organisations are playing an increasingly significant role in the protection of international decision making processes. According to the Union of International Associations, in 1956 there were 1000 international NGO's. Today there are 45, 000. We hope that this register can be a powerful unifying force for NGO's making a contribution to the human rights field. The Register has been used as an effective lobbying tool as far away as the UK. The project still has an extraordinary amount of potential. The register can communicate many issues in one succinct document.

2. KEY HUMAN RIGHTS DEVELOPMENTS FOR 2000 - 2001, AS REFLECTED IN THE REGISTER.

• A. Mandatory detention of asylum seekers, in continued breach of Articles 9.1 of the International Covenant on Civil and Political Rights, to which Australia is a party.
• B. The ongoing inequalities faced by Aboriginal Australians, such as health, education and welfare, the discriminatory impact of mandatory sentencing, deaths in custody, reconciliation.
• C. Australia's partial withdrawl from the UN Human Rights Treaty system, following reports from two key UN's Human Rights Committees in March and July 2000.
• D. Treatment of prisoners, including the overcrowding of prisons and ongoing allegation sof mismanagement by private operators.
• E. Welfare issues, especially homelessness. Also includes issues such as the ever-growing divide between the rich and the poor, increased mutual obligation and the impact of reduced government funding for charitable institutions.

3. OBJECTIVES OF THE REGISTER & PROCESS OF COLLABORATION

The register aims to provide a representative sample of human rights developments occurring between 1st May 2000 and 1st May 2001. The register can then by used by Federal and State Governments, the UN and NGO's to determine the areas requiring improvement in Australia's implementation of its international human rights obligations.

Many entries are taken directly from Newspaper articles. Others are from NGO's and Community Legal Centres across the country who have been directly involved with human rights issues. Obviously, the contents if the register do not provide a comprehensive look at all human rights incidents over the past year, however, it does provide a representative look at the issues.

4. STATISTICAL OUTCOMES

The Human Rights register is growing every year and it is evident that the document can be used as an effective lobbying tool, representing NGO's. In this year's register for the period 14 May 2000 -13 May 2001, there was a total of 263 entries, after duplications had been taken out. Of these, 198 were negative (72.28 %) and 34 were positive (12.92%).

In the last Register for the year 1999 - 2000, there were 259 entries. 6.9% were positive and 90.3% were negative. We have therefore seen a marked increase in the number of positive entries. In 1998-1999, there were 255 entries in the Register.

The positive and negative entries, categorised by State and Territory are as follows:

PERCENTAGES

5. KEY THEMES IN 2000-2001

A. The treatment of refugees and asylum seekers

It is shameful that the Federal government's treatment of asylum seekers and refugees continues to be a huge issue of concern, as it was in 1999 - 2000. Between May 2000 and May 2001, we have seen the situation with refugees and asylum seekers rapidly deteriorate. Over the past year, there were 26 negative developments reported to the Human Rights Register on this issue alone. This is by far the most prominent issue raised.

The influx of asylum seekers into Australian detention centres has been the subject of an on-going media frenzy over the past year. The Federal government's public response has been to demonise immigrants arriving without authorisation to Australia, in the hope that potential boat-people and "illegal people smugglers" will be discouraged. However, in many instances, the lack of communication between the Australian government and potential immigrants, renders this policy futile. Many asylum seekers do not have access to newspapers, television, radio or the internet. At the time of departure from their country of origin, the circumstances they face may be so dire that Australian government policy must take a back seat to their survival.

By the end of 1998 Australia had hosted nearly 15,000 refugees and asylum seekers during that year. These included 10,000 persons resettled during the year, 2,000 persons who were granted asylum, and 2,972 applicants in pending asylum cases. Under its refugee and special humanitarian programmes, Australia allocated 12,000 admission places for 1998-1999. This consisted of 10,000 'offshore places' and 2,000 'onshore places."1) The 'offshore' and 'onshore' places are linked and consequently, this can create tensions between those awaiting placements and refugees arriving on boats. By comparison with efforts in other countries, Australia takes a relatively small proportion of refugees. To illustrate the point, the UNHCR noted in 1998 that Australia took 61,800 people as "Refugees and Others" whilst the Netherlands took 131,800. Given the relative wealth of Australia, its land-mass and population the comparison with the Netherlands highlights how few refugees Australia takes comparatively.2)Of the other nations France took 131,800, the United Kingdom 116,000, Germany 949,200 and in our region Thailand took 138,000.

Some of the occurrences of the past year were:

• Reports came out in the media with regard to overcrowding, riots, the placement of suspected criminals with ordinary citizens, and the lack of essential living items such as quality food, shade and recreational facilities.
• In June 2000, it was alleged that two immigrant children seeking asylum were sexually assaulted while detained.
• In June 2000, it was reported at a forum that there were ten asylum seekers in Victorian detention centres, untried.
• In July 2000, the UN's Human Rights Committee found that Australia's detention policies for asylum seekers was in breach of Article 9.1 of the International Covenant on Civil and Political Rights (ICCPR). This article states,

"Everyone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his(her) liberty except on such grounds and in accordance with such procedure as are established by law."

• In July 2000, a Senate Legal and Constitutional Committee further underlined the inadequacies of the government's refugee policies.
• In September 2000, it was reported in the media that nurses at Woomera detention centre were unregistered and were dealing with allegations of sexual assault and drug taking in an inappropriate way. When these nurses were reported, authorities of the privately operated prison failed to take action.

On 29th August 2000, a joint press release was issued by the CCJD&P, The Brotherhood of St Laurence, Catholic Social Services and the Baptists Union of Australia.

The press release was a response to the negative media coverage and to the government's failure to protect asylum seekers. Liz Curran of the CCJD&P stated, "We have for some time warned the government that lengthy delays, poor processes and the lack of transparency would force people into volatile and desperate actions."

The Rev Tim Costello, President of the Baptist Union of Australia stated, "We send $65, 000 per person per annum, holding people in detention who have already demonstrated that they need protection… It is important that we put the plight of these people in the context of world conflict, subsequent displacement and the responsibilities we face as a nation state to share the burden of refugee intake with poor nations, who currently take most of the world's refugees."

International and domestic legal issues surrounding asylum seekers and refugees

It is clear that the definition of "refugee" in the Convention Relating to the Status of Refugees 1951 is not comprehensive enough to protect all asylum seekers. Refugees are defined as follows: "Owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of (their) nationality … (and) is unable… or owing to such fear, is unwilling to return to it.3) " This means that people seeking refuge from wars or war-like circumstances,4) from natural disasters and from economic hardship cannot receive protection. Despite Australia's land-mass and relative wealth, compared with other governments, the Australian government still lacks generosity when it comes to opening our borders to immigrants.

Immigrants are required to possess documentation from their country of origin before they can even be considered by the Australian Department if Immigration and Multicultural Affairs (DIMA) to have refugee status. Sections 189 and 196 of the Migration Act 1958 (Cth) require the detention of almost all unauthorised arrivals, regardless of their individual circumstances. Section 193 of the Migration Act enables departmental officials to refrain from notifying detainees who do not have documentation, of their legal rights .5)

After changes to regulations on 20th October 1999, new asylum seekers who made unauthorised entries to Australia and who were successfully granted refugee status, became holders of Temporary Protection Visas (TPV's) and were no longer entitled to "permanent" protection. These TPV's last only 30 months and allow for only the most basic protection of rights, despite the government's obligations under Articles 21-24 of the Convention relating to the Status of Refugees that refugees are given preferable or the same treatment as nationals on issues such as housing, education and social security benefits. During 2000, many Commonwealth funded agencies were sent a letter by the Department of Immigration warning against assisting the TPV holders.

There have been many allegations of the lack of legal basis for transferring detainees from detention centres to state prisons. The Department of Immigration and Multicultural Affairs (DIMA) have guidelines intended to provide basic protections in the event of transfer . 6) However there have been complaints that these guidelines are lacking in substance. What's more, there have been complaints that the fact that such guidelines can only be enforced by Departmental officers themselves, means that they are not adequately followed.

The government's policy on asylum seekers clearly does not look like changing in the near future. This is a huge issue for Australian human rights NGO's to keep lobbying.

B. The ongoing inequalities faced by Aboriginal Australians

In 2000 - 2001, the Register received 25 entries reporting issues such as deaths in custody, inadequate access to health, education, safe housing and welfare, sexual abuse, youth suicide, reconciliation and the stolen generation.

In July 2001, the UN's Human Rights Committee heard submissions from Australia's Human Rights and Equal Opportunity Commission (HREOC), stating that the Australian government had acted contrary to Article 1 of the International Covenant of Civil and Political Rights, to which Australia is a party. This article states,

"All people have the right to self-determination. By virtue of
that right, they freely determine their political status and freely
pursue their economic, social and cultural development."

In November 1996, the Minister for Aboriginal and Torres Straight Islander Affairs announced that the government's indigenous affairs policy would no longer be based on the principle of self-determination, but would be based on "self-empowerment, to move beyond welfare dependency".

The UN's Human Rights Committee responded by stating that Australia "should take necessary steps in order to secure for then indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources". (Article 1, para's 2 and 9) .7)

Some examples of the types of entries received on indigenous issues are:

• Deaths in custody and the government's failure to sufficiently act upon the recommendations of the 1999 Royal Commission into Deaths in Custody,
• The racially discriminatory effects of Mandatory Sentencing and the government's failure to implement the recommendations of the Senate Committee inquiry into the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999.
• Allegations of theft and sexual assault at Aboriginal hostels
• Claims of inappropriate allocation of funding for Aboriginal interpreter programs in the Nortehrn Territory, under a deal made between Prime Minister John Howard and NT Chief Minister Dennis Burke.
• Disproportionate rates of incarceration for indigenous Australians. While indigenous Australians make up 2% of the population, they constitute 20% of the prison population.

Concern seemed to relate to the disproportionate nature of the penalties as compared to the crimes. The removal of the judicial discretion to make purposeful interventions and to consider the circumstances giving rise to the offence was criticised. The NGOs viewed mandatory sentencing as the treatment of social deprivation through criminal justice mechanisms rather than addressing the underlying causes of many of the crimes including poverty, social isolation, marginalisation and the over-policing of Aboriginal people. The use of prison as a first or earliest response rather than as a last resort was seen as contrary to at least five international human rights conventions and the Royal Commission Into Aboriginal Deaths in Custody recommendations.

In the entries, reference was made to a range of international human rights standards which appear to have been overlooked in relation to the mandatory sentencing laws including the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination, the Covenant on Civil and Political Rights and the UN Standard Minimum Guidelines for the Administration of Justice (The Beijing Rules). The concerns raised by the CERD Committee in March 2000 and the government's hostile response were the subject of duplicated entries thus underlining the concern of NGOs. Many entries pertain to offences which received penalties of imprisonment that were excessive (See section on samples of entries at the end of the Executive Summary).

The Commonwealth government's arrangement with the Northern Territory Government which vests power in police to divert offenders was also a matter for concern as it contravenes Article 14 of the Covenant on Civil and Political Rights by vesting in the police the power to act as investigator, prosecutor court and judge in that they make a determination of appropriate sentence before the young person concerned has had an opportunity to have their case determined by a court. There are serious questions here around the usurping of the role of the judiciary \ and these may have Constitutional implications at a later stage.

C. Australia's partial withdrawl from the UN Treaty Processes

The federal government responded with an unprecedented display of arrogance to the UN's Human Rights Committee, upon the recommendations that Australia do more to uphold the rights of asylum seekers and indigenous people. As a backlash, they have advanced empty threats to "pull out" of the treaty system and are currently in the process of devising recommendations for how the UN Treaty committees could better function. No doubt these recommendations will advocate for greater geo-political autonomy of Nation States, going against the very purpose of the UN which is to "reaffirm faith in fundamental human rights, in the dignity and worth of the human person in the equal rights of all men and women and of all nations large and small."8)

Australia is now one of the only countries in the world to have not signed the CEDAW Treaty, despite the fact that Australian diplomats played a key role in its creation. It was reported on Monday 21st May that Foreign Minister Alexander Downer would see the ratification of the CEDAW treaty as an admission that the treaty process was sufficient . 9) The hypocrisy shown by the government over this issue has been astounding.

Two examples of the many entries received on this issue are:

• In September 2000, former Australian UN Human Rights Committee member, Justice Elizabeth Evatt defended the UN's Committee's comments in relation to asylum seekers and indigenous people.
• Also in September 200, former Australian Foreign Affairs Minister Gareth Evans spoke out in dismay at the government's response to the human rights committee's recommendations.

D. Treatment of Prisoners

Reports of prison overcrowding and threats to safety have been rife over the past year, with 19 reports coming through to the Register. The following issues have been brought to our attention:

• Prisoners do not have access to Medicare because they are the responsibility of the States, and Medicare benefits are a Federal benefit.
• In August 2000, 331 prisoners, including 35 women were held in police prison cells, where it is believed that facilities are insufficient.
• In July 2000, it was reported that eight people had died in Western Australian jails in a seven week period.

Overcoming crowding problems is not as simple directing money towards more beds and the development of facilities. This indicates a need for the Courts and Legislatures to urgently implement alternatives to incarceration. General Principle 2.4 of the UN Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules) states, "The development of new non-custodial measures should be encouraged and closely monitored and their use systematically evaluated."10)

E. Welfare Issues, particularly homelessness

There was a marked increase in the number of entries on homelessness this year. Melbourne City Mission estimated a 25 % jump in demand. Crisis accommodation housing in West Melbourne were turning away an average of 33 men per night. Concerns arose regarding an inadequate allocation of public housing under the Commonwealth State Housing Agreement.

F. Other issues covered by the register

The following summaries provide a snap shot of some other human rights developments over this year.

Positive

• In June 2000, a report by the United Nations Development Programme (UNDP) ranked Australia forth in the rating for its index on quality of life. This makes Australia the most rapidly rising nation.
• An amendment to the New South Wales Freedom of Information Act was introduced into the NSW Parliament to enable greater access to information.
• The National Women's Justice Coalition and the Albury / Wodonga Community Legal Centre ran a conference to address the needs of the two million for women living in rural and remote Australia.
• A program has been developed at Port Phillip Prison to provide mentoring, life skills and academic advancement to younger prisoners.

Negative

• The removal of squatters from council-owned property near the SOCOG head offices during the Olympics.
• Threats by the Victorian government that participants in the S11 / World Economic Forum protests would be arrested and held in disused prison cells, branded "inhumane" by the United Nations.
• The lack of mental health services available to the homeless.
• The commercialisation of American breast cancer tests in Australia were not designed to meet the needs of women. If such tests were patented, they are expected to cost A$4 744 for Australian women.

6. Responsibilities

Individuals and groups within society have an obligation to pursue not only their own interests but also the interests of all. The Commonwealth Government, State and Territory governments and their governing and administrative bodies are obliged to safeguard and promote the common good, as well as the good of society's component parts. The alternative is for society to become fractured and to splinter into antagonistic segments.11) The State has a positive and active role to play in society, including in the economy, to promote and ensure that all people are dealt with fairly and have equal opportunities in life. State intervention in the economy is necessary to prevent exploitation of the weak by the strong and unscrupulous and to secure the good of all members of the community in important areas such as education, health, protection under the law, shelter and the provision of basic services.12)

We hope that Governments at all levels will adhere to their obligations and seek to remedy negative human rights initiatives, diminish their damaging impact on members of the community and increase the positive contributions that they can make.

7. Structural and Procedural Matters Pertaining to the Register

1. Background to the Register.

The idea for the Register emerged in September 1997 after concerns were raised by non-government organisations (NGOs) in Victoria, about the number of changes in government policy and legislation that were affecting persons in Australia. NGOs raised concerns that there was no audit in Australia on the ways in which human rights developments were affecting people on the ground. The CCJD&P decided to fill this void by establishing a Register. NGOs around Australia could forward information sheets to the CCJD&P outlining both positive and negative developments in the human rights arena and raising issues in relation to those developments. The CCJD&P has posted the information sheets into the Register.

2. Contents and layout of the Register

The Register has been divided into chapters for each State, Territory and a chapter on matters within a Federal jurisdiction. It is noted that the international conventions that Australia is a party to, require the Commonwealth to ensure compliance with human rights laws across State boundaries, as this is clearly the only way that injustice within our own country can be addressed.

The CCJD&P received over 400 Information sheets from NGOs around Australia. In many of these, the issues were duplicated and so the entries were not recorded twice. It is noted that the number of information sheets received although not all were able to be entered in the register due to such duplication increased from the 1999 register. This is possibly because the register is slowly becoming more well known across the non government organisation sector with each year of the Registers production by media coverage or by word of mouth. The Commission hopes to see a continuing increase in the number of entries in future years of the Register's operation if the Register continues beyond the year 2000.

3. Australia needed an audit. Why?

The need for an audit of Australian human rights developments was made more pressing in 1997 because the Australian government was at least four years overdue in making its report to the United Nations under the International Convention on Civil and Political Rights. Even so, these UN reports by government largely deal with commentary on a governmental level and do not address the policies and legislation of governments as they impact on grass roots communities. The Federal government filed its overdue reports to the United Nation's Committee on Human Rights earlier this year. This is the subject of an entry in the Register. NGOs have continuous contact with Australian citizens. It is critical, therefore that people who are often not positioned to speak out and raise community awareness of these issues need to be heard. It is these voices that the register reflects.

A number of NGOs expressed concern in the 1997-1998 Register that if they provided information they might lose government funding. This concern was also communicated in relation to the 1999 and 2000 year Registers. We have continued our undertaking that in order to provide a voice for those affected by negative developments and ensure that related public interest matters surrounding Australia's human rights are articulated, NGOs could provide the information without the details of the NGOs being disclosed publicly if they desired. Nevertheless, a number of NGOs will be present at the launch on 13 June, 2000 and will be prepared and given opportunity after the panel session to speak to media.

Conclusion

Henry Louis Mencken, the author, once stated "Injustice is relatively easy to bear; what stings is justice." The comment seems very pertinent in relation to various reactions by Australia to scrutiny of its performance by the United Nations. The 1998, 1999, 2000 Registers reveal tell tale signs that Australia is slipping in its performance as a nation in the manner in which we deal with our own internal human right's issues.

Australia if it is to have any credibility when it speaks to other nations of their human rights standards cannot afford to refuse to have its own standards scrutinised and must, in order to be a credible advocate for human rights on the world stage, make all efforts to work for improvement in its human rights performance in Australia. The trend for Australia when it is criticised, ought not to be to "pick up its bat and ball and refuse to play" but rather to seek to constructively dialogue and remedy errors or processes which may have a negative impact on grass roots communities. Human rights belong to each and every Australian and should be inalienable and central to all good public policy making. In many cases particular members of society can experience impediments to having their human rights and dignity respected. The Register reveals how often minorities such as rural people, persons with a disability, children, asylum seekers and indigenous Australians can be overlooked. The irony is that in times of increasing pressure to globalize in areas of trade, there seems to be no corresponding commitment to global human rights and global cooperation in relation to those rights. When strong frameworks for human rights are offered these can buffer people from of the vagaries that can be caused through unfettered free market forces. It may be such rights that in the end can provide protection for the weak against the powerful.

Citizens can demand that our governments, politicians, institutions ensure that the protection and advancement of human rights standards are central to all public policy making, regulation and education on community standards and that they are not just perceived as an optional extra dispensed with when political expediency requires.

The English historian Arnold Toynbee stated, "Civilisation is a movement and not a condition. A voyage and not a harbor." For this reason it is critical that we constantly review and monitor the impact and effect of policies in our community. This Commission, other non- government organisations, our Parliamentary representatives, business, the Churches, media, educationalists, associations and individuals around the country should remain ever vigilant and advocate on behalf of others and themselves for the human dignity and rights of all people.

Catholic Commission for Justice, Development & Peace, 7th June 2001

1. See Worldwide Refugee Information, United States Committee for Refugees, Country Report: Australia http://www.refugees.org./conutryrpt/easia_pacific/australia.htm
2. UNHCR Statistical Overview for 1988-1998, http://www.unhcr.ch These figures include categories other than refugees as well.
3. Convention relating to the Status of Refugees 1951, Article 1(2)
4. Submission of the Human Rights and Equal Opportunity Commission, to the UN Human Rigthts Committee, July 2001.
5. Ibid.
6. Migration Series Instruction MSI-244: Transfer of Detainees to State Prisons.
7. Report on Australias Human Rights, viewed by the UN Human Rights Committee, www.hreoc.gov.au/human_rights/un_committee/index.html
8. Preamble of the United Nations Charter.
9. Interview with Amnesty International Triple R radio.
10. UN Standard Minimum Rules for Non-Custodial Measures, at 197, UN Doc, A/45/49 (1990)
11. Australian Catholic Bishops, Common Wealth for the Common Good, 1992 and Peace on Earth, Pope John XXIII April 11, 1973 n 53-66
12. Christianity and Social Progress, Pope John XXIII, 1963 n 53 and extracted from the Adelaide Diocesan Justice and Peace Commission in their 1997 pamphlet, "Make Your Vote Count for Social Justice"