Australia’s Policy on Human Rights:An Open Letter to the Prime Minister of Australia from Human Rights Watch

Dear Prime Minister Rudd Congratulations on your recent election as Prime Minister of Australia.

Human Rights Watch is a nongovernmental organization based in New York that monitors and reports on international human rights, refugee, and humanitarian law issues in more than 70 countries around the world.

We write to you outlining key areas of policy where we believe that Australia can and should do more to promote and protect human rights.  On foreign policy, Australia is a significant political actor and donor in the Asia-Pacific region, so your government is well placed to play a leading role in promoting human rights at a regional and international level.  Over the past decade, the Australian government was notably absent or obstructionist in such efforts.  The significant international attention paid to your signing of the Kyoto Protocol and your statement at the Bali conference on climate change shows the clout Australia has and the ways in which it can be put to good use.

Any promotion of human rights, however, begins at home.  Your government has an opportunity to distinguish itself on domestic issues by reversing some of the previous government’s policies that undermined basic rights in areas such as refugees, Indigenous Australians, counter-terrorism, and discrimination against same-sex couples.

Counter-terrorism

Australia should amend its counterterrorism legislation to bring it into compliance with international human rights standards.  The case of Dr Mohammed Haneef, an Indian citizen who was detained without charge for almost two weeks in July 2007 under the Anti-Terrorism Act 2005 (he was then charged, but the charges were dropped), highlights the need to revisit Australia's approach to counter-terrorism.  In order to combat terrorism more effectively, the government should reaffirm its commitment to human rights principles.

Human Rights Watch recommends that Australia reform the Anti-Terrorism Act 2005 in the following ways:

1. Revise control order procedures to ensure that individuals have access to all the information submitted to the courts for the purpose of securing control orders, that control orders are limited in time, and that they do not effectively constitute house arrest.  Imposing house arrest through control orders is tantamount to meting out criminal punishment without trial, violating the fundamental right to due process;
2. Amend the law’s overbroad provisions on sedition to avoid infringing the right to freedom of expression;
3. Modify preventive detention procedures to allow detainees to promptly inform their family members and legal counsel that they are being detained and ensure their communications with lawyers are not monitored by the police;
4. In line with the December 2006 report of the United Nations Special Rapporteur on Human Rights and Counter-Terrorism on Australia, narrow the law’s definition of ‘terrorist act’, so that it covers only conduct carried out with the intention of causing death or serious bodily injury, or the taking of hostages.

Refugees

Human Rights Watch welcomes the pledge by the Labor Party to end the ‘Pacific Solution’ by closing the Nauru and Manus Island processing and detention facilities and to replace the temporary protection visa scheme.  We are pleased to note that your government already granted political asylum to seven Burmese refugees who spent more than a year on Nauru Island, and we see this as a very positive sign of your intention to restore Australia’s reputation as a country that provides refuge to the persecuted.

In order to ensure that Australia's refugee policy respects human rights and meets international obligations, we call on your government to:

1. Close the Nauru and Manus Island facilities and offer asylum in Australia to any of the 89 people found to be refugees;
2. End the policy and practice of mandatory detention of asylum seekers and introduce community-based supervision for people whose refugee application is pending, with detention used only as a last resort where there is a compelling security risk;
3. End the practice of excluding parts of Australian territory from the Australian migration zone through ‘territorial excision’, which dictates that asylum seekers processed in excised places such as Christmas Island do not enjoy the same legal rights as those processed on mainland Australia.  All asylum seekers under Australian jurisdiction should be able to file a claim for asylum and have full access to legal assistance, an independent appeal process, work permits, and community support;
4. Replace the temporary protection visa scheme with a system that accords the same protection to all recognized refugees regardless of their manner of entry into the country.

Indigenous Australians

The quality of life for most Indigenous Australians remains unacceptably low, with a 17-year gap in life expectancy between Indigenous and non-Indigenous Australians, an infant mortality rate that is almost three times higher than the general Australian population, and rates of death from treatable and preventable conditions such as diabetes and respiratory illness ranging from three times to eight times higher than for non-Indigenous Australians.  Although they live in one of the world's wealthiest countries, most Indigenous Australians do not have access to adequate health care, housing, food or water.  Human Rights Watch welcomes your commitment to close the gap in life expectancy, and to formally apologize to the Stolen Generations.  We call on your government to act immediately to:

1. Make the existing Northern Territory National Emergency Response, designed to address child abuse and social breakdown in rural Indigenous communities, subject to the Racial Discrimination Act 1975. All government action taken should be consistent with the fundamental right to racial equality;
2. Ensure, in deciding the future of the Northern Territory National Emergency Response, that Indigenous Australians are regularly consulted and play a central, formal role in addressing child abuse and social breakdown in their communities.

Discrimination against Same-Sex Couples

Australia was at one time at the forefront of international efforts to recognize the rights of lesbian, gay, bisexual and transgender (LGBT) people.  Over the past decade, however, its record on this issue has fallen behind many other countries.  The lack of legal recognition of same-sex relationships under federal law means that these Australians and their children face disadvantage and exclusion on a daily basis.  We welcome the commitment by the new government to tackle this discrimination by implementing the recommendations of the Human Rights and Equal Opportunity Commission's report, Same-Sex: Same Entitlements.  We call on the new government to remove all discrimination against same-sex couples by:

1. Enacting legislation as a first-term priority that implements the recommendations of the HREOC report, so that same-sex couples and their children have equal access to benefits and entitlements in areas such as public sector superannuation, the Medicare and Pharmaceutical Benefits Scheme Safety Nets, income tax, and child support;
2. Providing for effective educational programs to ensure that all those affected by the HREOC reforms are aware of the changes, particularly Commonwealth employees and agents who will be responsible for administering the new laws;
3. Introducing federal anti-discrimination legislation that prohibits discrimination on the basis of sexual orientation and gender identity;
4. Amending the Marriage Act 1961 so that civil marriage in Australia is available to any two persons, regardless of their gender.

We thank you for your attention to these issues, and hope that your recent election will mark a turning point for Australia’s record on human rights, both domestically and abroad.  We look forward to a constructive relationship with your government.

Sincerely

Kenneth Roth Executive Director, Human Rights Watch *For the full-text letter, which also addresses foreign human rights policy, see hrw.org/english/docs/2007/12/17/austra17574.htm.