Chapter 4Human rights concerns
4.1The committee heard evidence that the human rights of some of the most vulnerable are not adequately protected in Australia. Submitters also highlighted areas where human rights of the general community are not upheld. This echoes the evidence presented to the 2009 National Human Rights Consultation committee which 'heard from thousands of Australians who are troubled by human rights problems'. This chapter sets out the key areas of concern raised in the evidence before this committee. The order in which these matters are set out does not indicate their level of importance.
Intersectionality
4.2Intersectionality in relation to rights is the way in which different aspects of a person's identity can expose them to overlapping forms of discrimination and marginalisation (for example, a person with disability who is also a member of a minority group). Numerous witnesses and submitters highlighted the importance of intersectionality as a key consideration for how people may experience breaches of their rights.
4.3For example, the Victorian Equal Opportunity & Human Rights Commission noted that people may experience multi-layered and cumulative discrimination due to multiple attributes and social categorisation, such as age, sex, gender, gender identity, sexual orientation, intersex status and ethnic origin or race:
Ultimately, taking an intersectional approach means that, for example, the experience of ageism in employment will differ between men and women and may be compounded by another attribute such as race or LGBTIQ+ status. An intersectional approach would consider these factors and design the policies and programs that address the intersections without just considering the age aspect in isolation.
4.4The Darwin Amnesty Action Group stated that intersecting features of a person’s identity may have contributed to wide ranging and compounded impacts, including of inequality, inequity, trauma and injustice, as well as ripple effect on people’s family, kin, community and on society as a whole.
4.5The Murdoch School Legal Clinic argued that Australia’s current anti-discrimination framework fails to recognise intersectionality:
[T]he complaints system is currently very siloed, in that the legal framework focuses on separate and distinct ‘grounds’ of discrimination (race, age, sex) but people actually experience discrimination in a multiple and overlapping way. Intersectionality become more important when also discussing disadvantage, because the more disadvantaged a person is the more likely they are to suffer discrimination on multiple grounds. The current discrimination framework is fundamentally ill-equipped for dealing with instances of intersectional discrimination.
Aboriginal and Torres Strait Islander people
4.6Numerous submitters were concerned by a wide array of issues which impact on Aboriginal and Torres Strait Islander people, ranging from concerns regarding self-determination to housing and criminal justice. Professor Kim Rubenstein, for instance, urged a rethinking of Australia’s human rights record and noted that ‘there is [not] any other group in Australian society that is a greater litmus test of the place of human rights protection in Australian history than Indigenous Australians’. A number of submitters raised the interaction between Aboriginal and Torres Strait Islander people and law enforcement as a concern. The National Justice Project argued that 'over-policing of First Nations communities' was 'a primary reason for the criminalisation and over-incarceration of First Nations people and the unacceptably high rates of First Nations deaths in police and prison custody'. The Indigenous Law and Justice Hub noted that Aboriginal and Torres Strait Islander people are the most incarcerated in the world, describing this as 'a pressing and egregious human rights violation'.
4.7Several submitters identified a lack of self-determination as a fundamental issue in relation to Aboriginal and Torres Strait Islander people's rights. Mr Les Malezer, Foundation for Aboriginal and Islander Research Action, emphasised that 'at no stage have Aboriginal and Torres Strait Islander people been given the right to choose their political status'. The Human Rights Law Centre drew a link between the 'lack of respect for the right to self-determination' and the 'extraordinary level of federal government intervention in people's lives', noting particularly 'experimental' social policy initiatives in remote communities.
4.8A number of submitters also highlighted the incomplete and piecemeal application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). For example, the Indigenous Law and Justice Hub noted that UNDRIP 'has not been comprehensively, formally, or substantively reflected in Australian law', while Maurice Blackburn Lawyers pointed out that 'the non-binding nature of such commitments means there is no effective enforcement of [UNDRIP's] principles'.
Refugees and asylum seekers
4.9A number of submitters highlighted significant concerns regarding Australia’s treatment of refugees and asylum seekers. They raised Australia's policies of offshore processing in third countries and immigration detention as key examples of punitive, arbitrary and harmful measures. Evidence was provided that Australia’s laws and policies breach the Refugees Conventions, including breaching the prohibition of non-refoulementthrough maritime interception and return policies. For example, the Refugee Advice & Casework Service submitted that 'Australia's legislated framework of mandatory detention violates established common law principles and fundamental international human rights norms'. Refugee Legal were of a similar view, stating:
The practice of indefinite detention has been foundational to normalising a rights-violating culture in this country, which has, in turn, enabled policies which systematically perpetrate other serious violations and cause large-scale harm.
4.10The Asylum Seeker Resource Centre highlighted the effects of refugees and people seeking asylum being denied access to their rights to health care and work, that 'forces people, including families and children, into destitution and immense suffering'.
4.11Numerous submitters identified that these policies had been widely criticised by domestic and international bodies, including United Nations (UN) human rights bodies such as the Universal Periodic Review. A number of submitters and witnesses also gave examples from their casework and legal services to demonstrate the broad-ranging limitations of their clients' economic, social and cultural rights, predominantly in work, education, housing, social security and health.
4.12Some submitters noted that this committee has a constrained and inadequate function as an oversight mechanism for scrutinising and preventing the adoption of laws that contraveneinternational law in the migration context. They noted that the committee’s governing statute excludes the Refugee Convention and Statelessness Conventions as part of its remit and recommended that these conventions be included as part of the committee’s wider scrutiny role and for ensuring compatibility with Australia's international treaty obligations.
Migrants and people from culturally and linguistically diverse communities
4.13A number of submitters raised concerns that the current human rights framework does not adequately protect the rights of migrants or people form culturally and linguistically diverse communities. For example, Mr Elijah Buol OAM, Chairperson of the Ethnic Communities Council of Queensland, submitted that the current system in place to protect the rights of Australians leaves gaps, which means a large number of migrants are left vulnerable and exposed with no protection. Submitters were strongly supportive of legislating a federal Human Rights Act. In particular, Multicultural Australia stated that the rights of non-citizen residents need to be protected to build social inclusion and communicate that they are welcome in Australia.
4.14While submitters recognised the increasing diversity in Australian society, submitters also observed that people from culturally and linguistically diverse backgrounds encounter direct and systemic racism. Multicultural Australia submitted that humanitarian entrants and migrants face particular inequities in access to services, a consequence of factors including their pre-migration experience, settlement stressors, and language or cultural barriers. Submitters also observed that temporary visa holders often have conditions in their visas that disadvantage their enjoyment of rights and limit access to other services, consequently limiting their understanding of their rights and their capacity to seek redress, particularly in the employment space. Submitters noted that many migrants hold a fear that any complaint they make will impact on their employment or their visa, and that this fear is sustained as their need for income is greater than their need to make a complaint.
4.15A number of submitters observed that English is often an additional language for people from culturally and linguistically diverse backgrounds, and individuals may not have the level of comprehension required to understand discrimination complaints processes or use the courts to challenge inequality and discrimination.
People with disability
4.16Many submissions drew attention to the recent findings from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability to highlight the inadequacies of existing human rights mechanisms in the federal context in providing protections towards people with disability. Ms Julie Phillips, Manager of Disability Discrimination Legal Service, gave evidence that people with disability 'could be the most vulnerable in Australia, the most discriminated against in Australia and the most abused in Australia'. The Australian Federation of Disability Organisations submitted that people with disability are over-represented in places of detention and experience higher rates of violence, ill-treatment and torture. DeafBlind Australia submitted that currently any attempts to rectify observed violations of the rights of DeafBlind people fall over as there is no law to compel action by those infringing on individual rights.
4.17Submitters also commented on Australia not fully upholding its obligations under the Convention on Rights of People with Disabilities (CRPD) within the domestic legal framework, despite its ratification. As a consequence of this, many submitters were of the view that there are significant gaps in legislation for people with disability which have not been overcome by a variety of existing Acts. Some submitters highlighted the segregation of children with disability into special education classes or schools, with such discrimination deviating from the international standard of and right to inclusive education as stipulated by the CRPD. In this context, some submitters called for a full review of anti-discrimination laws, and for an HRA to be an important step to harmonise and modernise discrimination laws and create a uniform approach to the rights of people with disabilities.
Carers
4.18Several submitters raised concerns in relation to the rights of carers and those people they care for (including people who require carer support due to illness, age, disability or for other reasons).
4.19Carers NSW and Carers Australia highlighted that caring can have significant impacts on a carer’s physical and mental health and wellbeing, economic security and social inclusion and community participation. Carers Australia submitted that ‘the “wellbeing gap" becomes larger with the intensity of the caring role.’
4.20The National Mental Health Consumer & Carer Forum submitted that Australia has a checkered human rights history in relation to how it treats people with mental-ill health and their family, carers and kin. While carers are recognised under legislation (including the Carer Recognition Act 2010 and state and territory legislation) their coverage varies, and submitters noted that most states have limitations on the enforceability of these Acts which they argued make it ‘difficult for carers to have their rights upheld or to challenge instances where they feel they have experienced injustice as a result of their caring role.’
4.21Carers NSW argued that a recent shift towards person-centred models of care has led to challenges for the support services, stating while this model is positive for promoting the autonomy and independence of care recipients, an unintended consequence has been a reduced focus on the experiences and needs of family and friend carers, who are often essential members of an individual’s care or support team.
Children and young people
4.22Many submitters expressed concern that children’s rights are not adequately protected in Australia. In particular, concerns were raised regarding the rate of imprisonment of children in Australia. The Australian Lawyers Alliance described the imprisonment of children as a 'national crisis', while the South Australian Commissioner for Children and Young People described children in youth detention as lacking 'proper education [and] cultural rights'. Several submitters noted that Aboriginal and Torres Strait Islander children are imprisoned at disproportionately high rates. Ms Rachel Atkinson, Board Member of SNAICC – National Voice for Our Children, stated:
[Aboriginal and Torres Strait Islander children]…are significantly more likely to have contact with the youth justice system and to be held in detention. This is to say nothing of the horrifying breaches of human rights that our children and young people experience while in out-of-home care and youth detention.
4.23Another key concern was the age of criminal responsibility in most jurisdictions, with submitters noting that this was inconsistent with the UN Convention on the Rights of the Child.
4.24A number of submitters raised the rights of children with disability, expressing particular concern around their exclusion from mainstream education. Other issues raised included the provision of gender-affirming care to children, children being kept in immigration detention, the effect of social media on children's development, the rights of adopted children, and the inadequate rate of youth allowance.
4.25The rate at which Aboriginal and Torres Strait Islander children are removed from the care of their families was cited by several submitters as a significant cause for concern. Ms Atkinson, Board Member of SNAICC, stated:
Aboriginal and Torres Strait Islander children's rights have been in crisis since colonisation, when we were dispossessed of our land and our cultural ways of growing up and nurturing our children, which we have done successfully for more than 65,000 years… Our children still remain over 10 times more likely to be in out-of-home care than non-Indigenous children, and, far from getting better, this trend has been increasing in every jurisdiction over the last decade.
4.26Good Shepherd Australia New Zealand noted that 'less than half of these children are placed with Aboriginal and Torres Strait Islander carers, causing irreparable separation from their culture and communities'.
4.27Other submitters highlighted the 'distinct set of rights' owed to Aboriginal and Torres Strait Islander children, noting the intersectionality of their rights as children and rights as Indigenous peoples. Ms Atkinson, Board Member of SNAICC, emphasised that:
We're not asking for privilege or special changes unique to Indigenous people, but what we need is some sort of protection because the changes mean, like what's happening in Queensland, the overrepresentation of vulnerable people…that are obviously Aboriginal and Torres Strait Islander kids. As an Aboriginal person here today, I think there is a crisis in our community. We are vulnerable. The principle of self-determination is not being met here.
Older people
4.28Concerns were raised as to the treatment of older people in Australia, particularly in the area of aged care and discrimination. The Australian Human Rights Institute described ageism as:
the individual, communal and institutional practices that embody stereotypes about the abilities, capacities, interests and contributions of older persons that homogenise and devalue them and often lead to their exclusion from economic and social opportunities on the basis of their older age.
4.29A number of submitters were critical of existing human rights protections, noting that the fragmented state and federal human rights and anti-discrimination legislation is "unable to provide a comprehensive and robust basis" to guarantee human rights as people age. These submitters argued the current existing federal mechanisms have not been effective in countering age discrimination and ageism that perpetuate tolerance of persistent human rights violations,including of older jobseekers. A number of submitters also highlighted discriminatory access to the NDIS for people who acquire disability after the age 65, do not enjoy parity of access.
4.30Submitters highlighted the documentation of human rights violations of older people abused and neglected in institutions, and their lack of protections in the findings of the Royal Commission into Aged Care Quality and Safety. Mr Craig Gear, Chief Executive Officer of Older Persons Advocacy Network, stated that human rights are impacted when restrictive practices are implemented, and that the current protections regulating the use of restrictive practices are inadequate. Mr Geoff Rowe, Chief Executive Officer of Aged and Disability Advocacy Australia argued that ‘older Australians have been required to check in their rights when they check in to aged care’.
4.31Evidence was received that during the Covid-19 pandemic older persons were disproportionately vulnerable, as evidenced by significant gaps in protections of their rights, including the rights to health, care and support, freedom from violence, abuse and neglect, and participation as full members of society. Aged and Disability Advocacy argued that older persons were denied health care for Covid-19 unrelated conditions, suffered poverty and hunger, loneliness and isolation, and endured the trauma of being targets of hate speech and expressions of intergenerational resentment, perpetuating stigma and discrimination.
Religious groups
4.32A number of religious groups held concerns about the state of religious freedom in Australia. The Human Rights Law Alliance submitted that freedom of religion 'is repeatedly subjected to legislative encroachment, backed by an agenda which is antagonistic to religion and religious followers', while Freedom for Faith referred to 'a gradual erosion of the right of faith-based organisations to maintain their religious beliefs and ethos'. Many of these submitters focused on a lack of protection of the right for faith-based organisations, particularly faith-based schools, to require certain standards of practice and belief of their employees. In the view of these submitters, state-based human rights legislation had prioritised freedom from discrimination above freedom of religion.
4.33Mr Mike Southon, Executive Director of Freedom for Faith, stated that '29 per cent of Australians have experienced religious discrimination. People of non-Christian faiths are twice as likely to experience that discrimination as Christians'. The Australian Muslim Advocacy Network described anti-Muslim sentiment, particularly connected with media coverage, as a major challenge for the Muslim community:
[Anti-Muslim sentiment] puts a huge psychological health burden on our community in terms of the health impact of racism and of fearing what's going to happen to our children who might be troubled…and also just being fearful because of how everyone looks at us and sees us and immediately has a lens over the way they see us because of that framing. So we want a sense of freedom. That is really key to our religious freedoms agenda—to have that removed from the law so we can be free to form our own narratives as a community and not be hostage to misinformation and disinformation online about our community.
4.34The Executive Council of Australian Jewry expressed concern at the lack of a consistent national system for dealing with hate-motivated crime.
4.35In contrast, some submitters argued that there was a need for freedom from religion, expressing concern about religious freedom being inappropriately applied to enable coercive control by religious groups.
LGBTIQA+ people
4.36Numerous submitters recalled the historical challenges the LGBTIQA+ community has faced in advocating for their rights, and many highlighted the recent escalation of prejudice and hate in public rallies transcending to the online sphere. Submitters commented on the shortcomings in discrimination legislation and inadequate protection of LGBTIQA+ human rights. Many submitters emphasised the broad ranging pervasiveness of discrimination, harassment and violence faced by the LGBTIQA+ community primarily evidenced in employment, home rental and health care, and also by educational institutions against staff and students on the basis of sexuality and gender identity. Submitters also highlighted that transgender people experience higher levels of violence and abuse than the general population.
4.37Submitters commented on the connections between lower health outcomes for LGBTIQA+ people, with barriers to access the healthcare system and have unique needs, most notably the high suicide rates among this community. Many submitters noted that many LGBTIQA+ people experience high levels of dissatisfaction with healthcare because of overt hostility and discrimination from healthcare professionals. Mr James Zanotto, the Director of Policy at LGBTIQ + Health Australia, stated:
… trans and gender-diverse people in Australia are persistently under threat through negative public debate [which]… has serious and profound health and mental health impacts on many people. Many LGBTIQ+ people face challenges in accessing health care because of past experiences with stigma and discrimination and expectations that will continue to happen in the future.
Women
4.38Many submitters highlighted that gender-based violence is a national problem, with the majority of victim-survivors of abuse in Australia are women. Submitters noted the negative impacts that violence against women has, including reduction of women’s wellbeing, prevention from fully participating in society in respect of employment, education and family life, which has a negative consequence for the whole country. Our Watch submitted that Aboriginal and Torres Strait Islander women, in particular, experience disproportionate rates of violence, and this violence is often more severe and complex in its impacts.
4.39Numerous submitters also noted the disproportionate impact that violations of economic and social rights have on women, and exemplified the distress and harm of the ParentsNext mandatory programme upon women. Chief Executive Women also noted that inequalities are even greater for people with intersecting identities including for First Nations women, women from migrant and refugee backgrounds, women with disability, and people of marginalised genders who experience diverse forms of discrimination and disadvantage.
4.40Submitters critiqued the effectiveness of the law in addressing systemic discrimination, and emphasised that existing protections are not readily accessible or easy to understand. Some submitters referred to a blurring of language regarding a change in women’s sex-based rights, where rights are more often based on gender rather than being based on sex: the biological/chromosomal composition. Some submitters raised that this was creating new forms of discrimination and incursions on women’s rights, and highlighted examples of broader inclusions in women’s sport, and sharing of bathrooms. Submitters also raised concerns regarding problems of sexism, prostitution and people trafficking.
Prisoners
4.41Many submitters raised concerns regarding rights violations occurring within Australian prisons. Case studies were provided identifying occurrences of rights violations, including omission of culturally safe health care in prison for First Nations people, prison service providers’ inability to maintain family and kinship connections, and experiences of women in custody.The Australian College of Nursing submitted that many Aboriginal and Torres Strait Islander prison populations have experienced significant trauma, including domestic, family and sexual violence, in addition to the generational trauma of colonisation. The National Justice Project submitted that prison staff responses are often punitive, resorting to the use of physical restraints and prolonged solitary confinement and isolation.Harm Reduction Australia submitted that denial of access to harm reduction, in custodial settings as well as prisons, violates the prohibition of torture and other cruel, inhumane and degrading treatment.
4.42Numerous submitters highlighted pervasive drug challenges in Australian prisons, such that illicit drugs are readily available and that there are high levels of associated injecting drug use. Harm Reduction Australia submitted that inmates are routinely forced to re-use and re-fashion injecting equipment incorporating the use of a single needle and syringe, and that there has been a failure to implement a program of regulated access to sterile injecting equipment. Many submitters identified inconsistent approaches by prisons in their refusal to provide prisoners living with opioid use disorder with effective medical treatment, such as opioid substitution therapy.
Privacy
4.43Concerns were raised that Australia’s existing legal framework does not adequately protect the right to privacy, and is not sufficient to regulate artificial intelligence technologies and privacy rights. The Human Rights Law Centre argued that as people’s lives are increasingly moving to the online space ‘privacy is fast becoming one of the most casually and frequently breached, but immeasurably important, human rights’ with breaches of privacy ‘leading to a more dangerous world – be it online disinformation inciting violence, the use of biometric surveillance technologies by police and companies, or identity theft’.
4.44Others submitted that there is no clear legal process for litigating complaints related to companies failing to protect the privacy of its customers’ personal information and sensitive health information from interference, loss, unauthorised access and unauthorised disclosure, such as the data breaches on Medibank and Optus. Maurice Blackburn submitted that presently, the lack of a “modern, enforceable privacy protection regime means that organisations are not encouraged to value privacy or devote resources to protecting data against cybersecurity risks.
4.45The Queensland Youth Policy Collective submitted that “businesses avariciously stockpile huge quantities of personal data, which is then sold and used to analyse and manipulate data subjects without their knowledge.” Additionally, they expressed concern that Governments tap into the private sectors’ stockpiles and also engage in constant surveillance, scrutinization and profiling of the population. Ms Drury, Acting Legal Director at the Human Rights Law Centre, gave evidence that marginalised groups in particular face more surveillance than other groups and the ‘deep concern we have is that a continuation of this use and the rollout of very troubling technology like facial recognition will be combined with the overpolicing that already exists in these communities’.
4.46In addition, a few submitters raised concerns regarding the human rights implication of neurotechnology (which allows the human brain to connect directly to digital networks through processes and devices that permit the neural processes to be accessed, monitored and manipulated). Evidence was received that there is a need for regulation to address the implications of devices inserted into the brain or are transcranial to wear, which have the potential to disrupt cognitive liberty, infringe upon freedom of thought, and affect personality and free will. These submitters were supportive of a federal HRA inclusive of neurorights, and enshrining a right of mental privacy, regulating the collection, storage, and sale of neural data, or the protection of thoughts against disclosure.
Freedom of expression and the right to protest
4.47Some submitters raised concerns that there is little protection for the right to freedom of expression and the right to protest, and these rights have been slowly undermined in recent years. Submitters raised particular concerns that there has been a national trend towards criminalising peaceful protest. The Human Rights Law Centre submitted:
Australians’ freedom of assembly and expression have been under sustained attack by state parliaments for the last ten years. Political sensitivity to climate protesters in particular has prompted a rolling wave of draconian penalties which undermine people’s right to protest in Australia.
4.48The Human Rights Law Centre gave as examples of recent interferences with these rights as a crack down on charities being involved with protests, and the decision to prosecute Bernard Collaery and Witness K.
Environment
4.49Concerns regarding climate change and environmental threats, and their impact on human rights were raised by a number of submitters. Submitters argued that current mechanisms to protect human rights, and particularly the right to a healthy environment and the associated First Nations substantive and procedural environmental rights, are either inadequate or non-existent. Submitters stated that climate change and environmental degradation also affects people’s rights to life, health, food, water and adequate standard of living, and disproportionately affects people with low-incomes or experiencing disadvantage. Ms Frances Bradshaw, Senior Solicitor at the Environmental Defenders Office, stated that ‘we, as humans, rely on the environment for our health, wellbeing and security’ and that it is time to recognise, implement and protect the right to a healthy environment in Australia. These submitters were strongly supportive of a federal HRA that contained substantive and procedural elements of a right to a healthy environment.
4.50Environmental Justice Australia submitted that the lack of broad-based and binding legal mechanisms to set and implement pollution and waste controls at the national level, including a duty requirement for prevention of environmental harm, is a fundamental weakness in Australia’s current federal laws.
4.51Submitters observed increasing repression of environmental defenders and climate advocates in Australia. In particular, submitters noted a national trend towards criminalising peaceful protest that restricts people’s ability to stand together and speak out on issues they care about. The Environmental Defenders Office submitted that there had been increases in “proactive policing of climate activists across all Australian states and territories including, for example, police raids, seizure of devices, pre-emptive checks, and onerous bail conditions, which are increasingly being utilised as mechanisms for disrupting and isolating the environmental movement.”
Access to justice
4.52Submitters identified that recommendations lack legal enforceability, and there is no authority to ensure compliance, and consequently individuals are left with the option of seeking a legal remedy through the court system.
4.53Many submitters acknowledged that for actions to be brought before a court would be extremely resource and time intensive. As a result, meritorious complainants may decide not to pursue their claims. National Legal Aid submitted that a major barrier to justice for people who have experienced discrimination and sexual harassment is the risk of having to pay legal costs of the respondent or their employer should they lose. National Legal Aid also submitted that the experience of people who have faced discrimination and sexual harassment should be acknowledged, and that being listened to, believed holding the respondent accountable, and behaviour stopping, is also part of the pursuit of justice.
4.54Submitters emphasised that for people who are low paid and in insecure work, and when people are up against an organisation with large resources, the financial risk of pursuing their rights can often be a barrier. Many submitters stated that the financial risk of complainants pursing their rights can often be a barrier for access to justice.
4.55Numerous submitters highlighted the need for adequate funding of the legal assistance sector across various jurisdictions, criminal, family and civil areas of law, to support equal access to justice, and noted a continued decrease in Commonwealth support.
Victim-survivors of crime
4.56Some submitters raised concerns that the human rights of victim-survivors of crime are not adequately protected. For example, knowmore submitted that Australia has no victims’ rights charter at the federal level to specifically protect the rights of victims and survivors of crime. The Queensland Human Rights Commission submitted that there were persistent difficulties experienced by institutions and professionals to adequately meet the expectations of victim-survivors of crime. They further submitted that “having violence inflicted on them and experienced victimisation separates victims from their usual place in society.” Women’s Legal Service NSW similarly submitted that “[v]ictim-survivors who are subjected to gender-based violence can experience discrimination in areas of public life such as employment, education and housing and accommodation. For example, a woman may lose work or have their employment terminated as a result of a perpetrator harassing her at her workplace.”
4.57Australian Centre for International Justice submitted that there is no compensation scheme for federal offences, leaving international crimes offences accounted for, and highlighted the experiences of Afghan and Yazidi victims in cases with a link to Australia. They also submitted that victims of federal crimes have limited ways of participating in the criminal process in Australia.
4.58Women’s Legal Service NSW submitted that failures to provide victim-survivor’s with appropriate supports when reporting violence and during the criminal legal process can have profound impacts on victim-survivor rights, including rights to life, family, and not to be subjected to cruel, inhuman or degrading treatment.
Poverty and social security
4.59Many submitters observed that people can experience further entrenched disadvantages when poverty is combined with other structural and systemic factors, and that the people least able to protect their own human rights are the ones most likely to have them infringed. Submitters highlighted that existing mechanisms have failed to protect people who face barriers to fair and equitable treatment, and these vulnerable and marginalised members of society are more likely to experience breaches of civil and political rights and seek recourse that is not experienced by others.
4.60For example, the Australian College of Nursing submitted that inadequate government income payments and housing stress result in denying basic rights and poverty. Save the Children submitted that children live in poverty at higher rates than adults. Jesuit Social Services submitted that the most disadvantaged people in society experience multiple and long-term disadvantages based on the location where they live, including greater impacts of climate change and pollution, higher rates of poverty, and less access to public transport or healthcare, and face systemic barriers to get out of poverty.
4.61Many submitters noted the structural weaknesses and issues in how human rights are treated at the federal level and highlighted the Robodebt Scheme as an example of an unlawful program that resulted in significant human cost, where recipients of government support were not treated with dignity and fairness.Economic Justice Australia submitted that the evidence from the Royal Commission into the Robodebt Scheme’s report showed that “our current legal frameworks and ‘business as usual’ approaches to public administration are insufficient to prevent systemic human rights abuses – particularly where they impact upon a vulnerable population” where decisions were based on “budgetary factors that did not take into consideration the broader range of relevant concerns through a human rights lens.” Compulsory income management and cashless welfare policies, which limits individual’s ability to spend their social security entitlements, were also raised as impinging on rights to non-discrimination, social security and private life, particularly for First Nations People.
People experiencing homelessness
4.62Homelessness in Australia is an increasing problem that is both pervasive and enduring, manifesting in many forms such as street homelessness, overcrowding and ‘couch surfing’. The simultaneous rental and housing affordability crises have put many millions of people in Australia under enormous pressure.
4.63Many submitters noted that homelessness affects a broad range of individuals, most significantly from marginalised or disadvantaged backgrounds, including First Nations peoples, migrants and refugees, women experiencing family violence, young people, people with disabilities and mental health challenges, and other at risk groups.The Victorian Aboriginal Child Care Agency submitted that Aboriginal people are significantly more likely to experience homelessness. The Youth Affairs Council of South Australia submitted that young people remain the most likely age cohort to experience homelessness and are disproportionately impacted by perpetually high rents and the broader rental crisis.
4.64The public housing system in Australia is fraught with multiple challenges, including insufficient safe and affordable dwellings, demand exceeding supply, and extended public housing waitlists.Many submitters provided examples of the range of clients they assisted who were experiencing near homelessness and destitution, and some particularising client challenges to secure public housing and experiences living in public housing.
4.65Cross-cutting factors push people into homelessness and perpetuate structural challenges, which can consequentially lead to discriminatory treatment. For example, submitters observed that violence in the home is a leading cause of homelessness for women and children. The National Justice Project noted that people experiencing homelessness are one vulnerable group that frequently face harassment, arbitrary detention and abusive treatment at the hands of police, often due to discrimination.
Businesses and human rights
4.66Unlike binding international human rights treaties ratified by Australia, the UN Guiding Principles on Business and Human Rights (UN Guiding Principles) affirms that businesses have a responsibility to respect human rights, which includes preventing or mitigating adverse impacts related to their operations and value chain. Numerous submitters recommended a robust human rights framework incorporating legislative and policy elements which more comprehensively implement the UN Guiding Principles.
4.67Submitters noted a patchwork of laws regulating aspects of corporate activity, but there is no specific domestic legislation concerning human rights due diligence in Australia. TheModern Slavery Act2018requires Australian businesses to report on the efforts taken to respond to modern slavery risk in their supply chains, however, some submitters argued it needs strengthening and greater accountability of reporting obligations.University of Newcastle's Centre for Law and Social Justice submitted there is a 'liability deficit' or 'accountability gap' where lead firms are rarely subject to liability for the actions of other firms in their supply chain, even when those firms cause human rights harms, and despite the lead firm being responsible for the coordinated organisation of the chain and gaining the most profit from the chain.
Covid-19 pandemic
4.68The Covid-19 pandemic and associated legislative and policy responses engaged numerous human rights. Measures imposed at the federal level and by the states and territories simultaneously promoted and limited a number of human rights, including the rights to life, health, privacy, freedom of movement, liberty, equality and non-discrimination, work, adequate standard of living and social security.Submitters raised the response to the Covid-19 pandemic as one raising multiple human rights concerns – which is set out in Chapter 5 of this report. Some submitters also raised concerns regarding requirements for Covid-19 vaccinations which they submitted amounted to discrimination.
National security laws
4.69Several submitters expressed concern regarding the human rights compatibility of Australia’s national security and counter-terrorism laws. Dr Stephen Lake, an academic, stated that Australia has passed more counter-terrorism legislation since 2001 than any other Western democracy, despite Australia not having been threatened or attacked in the same way as other countries have been. He estimated that approximately 92 laws and amendments had been made, and expressed concern about how the legislation is being extended to ordinary civil and criminal law, for which it was never justified and which potentially classify other forms of criminality as terrorism. Mr Scott Lambert submitted that Australian governments over recent years have responded to the threat of terrorism by introducing counter-terrorism laws that ‘go well beyond what might be deemed proportionate, creating a chilling effect on freedom of speech and the press and breaching the right to privacy.
4.70National Legal Aid highlighted that, while much of Australia’s counter-terrorism legislation was characterised as being temporary when introduced, it remains on the statute books today, arguing that this highlights the importance of the scrutiny of existing legislation and statutory review. Further, the Australian Centre for International Justice noted that the 2012 National Human Rights Action Plan had listed counter-terrorism as being a priority area (on the basis that it was a human rights concern of the general community).
4.71Submitters also expressed concern regarding the absence of adequate legal protections for whistleblowers, noting recent prosecutions of whistleblowers and associated inquiries into journalists.