National Human Rights Action Plan - Baseline Study Consultation Draft

The attached submission regarding the Draft National Human Rights Action Plan (NHRAP) Baseline Study is from the National Aboriginal and Torres Strait Islander Legal Services (NATSILS) which is the peak national body for Aboriginal and Torres Strait Islander justice issues in Australia.

In this submission, we argue that the NHRAP should accurately and comprehensively detail existing human rights concerns in Australia and set out ways to address them that are measurable and accountable. The NHRAP will not be able to achieve this aim if the Baseline Study is not of a high quality. The Study needs to be thoroughly comprehensive and capture significant detail about what human rights concerns exist in Australia and the causal factors that lead to such concerns. If the Study fails to provide a clear and thorough picture of the current human rights situation in Australia then the credibility and effectiveness of the NHRAP will be jeopardised before it is even in place.

The NATSILS provide information for inclusion in the Baseline Study in areas including, but not limited to, the following:

• Changes to the structure and appropriate and consistent use of language;
• The powers of the Australian Human Rights Commission;
• Acknowledgement of the failure of Government to enact a Human Rights Act as was supported by the 2009 National Human Rights Consultation;
• Scrutiny of of new legislation against the Declaration on the Rights of Indigenous Peoples;
• Reference to the repeated calls for the creation of substantive protections for the rights to equality before the law and freedom from discrimination that have been made throughout the consolidation of anti-discrimination legislation process thus far;
• Withdrawal of Australia’s reservations to article 4(a) of the Convention on the Elimination of Racial Discrimination (CERD) and article 20 of the International Covenant on Civil and Political Rights (ICCPR) and the ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR);
• Previous recommendations made by numerous UN treaty bodies, the Special Rapporteur on the Rights and Fundamental Freedoms of Indigenous Peoples and numerous domestic NGOs and legal bodies regarding substantially increasing funding to the ATSILS;
• Lack of access that Aboriginal and Torres Strait Islander peoples have to interpreters and how this affects people’s right to a fair trial;
• Detail of previous concerns and recommendations made during Australia’s UPR and by UN treaty bodies and domestic NGOs regarding the need for independent investigations of complaints against police, police misconduct and deaths in custody and the implementation of all of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) recommendations;
• The increasing use of force by police as opposed to utilising de-escalation techniques, and the increasing use of Tasers and capsicum spray/foam as compliance tools, especially on people who are already in custody, must also be discussed;
• Australia’s most recent review under the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and should detail the main concerns relating to Aboriginal and Torres Strait Islander peoples that came out of that review, many of which are missing from the Study;
• The Study must acknowledge that despite recent amendments to widen the application of compulsory welfare quarantining to non-Aboriginal and Torres Strait Islander communities in the NT, the NTER still disproportionately affects Aboriginal and Torres Strait Islander peoples due to the high population of Aboriginal peoples in the NT and high incidence of welfare dependence;
• Confusion around Special Measures under the Racial Discrimination Act 1975 (Cth) and clearly explain what is required to give rise to the need for Special Measures;
• Numerous international and domestic recommendations relating to the establishment of a national compensation scheme for victims of the Stolen Generations and Stolen Wages have been rejected by the Government, however they should still be recorded in the Study as an ongoing human rights concern;
• The Study must provide greater detail and insight into the human rights concerns that lead to Aboriginal and Torres Strait Islander people coming into contact with the criminal justice system at such a disproportionate rate;
• Lack of funding provided by the Commonwealth and State and Territory governments to Family Violence Prevention Legal Services (FVPLS) and the fact that they are not funded to provide services in metropolitan areas despite the Study itself noting that the majority of Aboriginal and Torres Strait Islander peoples live in urban and regional areas;
• The Study needs to explain that there is a lack of consistency in the implementation of the Indigenous Child Placement Principle and that there is no policy or practice framework to aid its implementation nationally;
• The rights of Children in the Criminal Justice System; and
• Concerns that have been raised about the state of detention and custodial facilities.

NHRAP Baseline Study Draft Community Workshop

To help prepare the Victorian Aboriginal community to respond to the NHRAP Baseline Study, VALS co-hosted a community workshop with the Human Rights Law Centre (HRLC) on the 21 July 2011. Some group work was done on the day which informed a report that HRLC sent to the Commonwealth Attorney-General’s Department. The report can be downloaded below.

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ATSI_Workshop_Report_-_Melbourne_21_July_2011

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National Human Rights Action Plan - Baseline Study Consultation Draft

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