Every five years, the United Nations Human Rights Council undertakes a review of how countries around the world are performing in relation to upholding human rights.
Australia’s third review was conducted in January 2021. The Australian Human Rights Commission (AHRC) provides insight into its findings and key recommendations.
Who conducts the review?
The review takes place on the basis of three documents:
- The national report prepared by the Australian Government.
- The United Nations human rights report.
- The stakeholders report which includes contributions by the AHRC and Australian NGOs.
While the AHRC acknowledged in its submission to the review that Australia has made some improvements since its last review in 2015, it raised a number of issues.
Human rights issues and recommendations for Australia
In its submission, The AHRC highlighted substantial ongoing weaknesses in Australia’s human rights protections and emerging challenges, including those related to the COVID-19 pandemic.
Some of the key issues identified by the Commission, and its recommendations, are outlined below.
Minimum age of criminal responsibility
The minimum age of criminal responsibility in Australia is low compared with other countries, and there is limited evidence that the principle of doli incapax is routinely applied in practice.
It is recommended that the Australian government raise the minimum age of criminal responsibility from 10 years to at least 14 years.
Criminal justice system
One key issue is the over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system. It is recommended that the Government ensures adequate legal assistance and the availability of diversionary programs for Indigenous peoples.
Mandatory sentencing laws that set a mandatory minimum sentence for particular offences represent another important issue, with critics claiming that they undermine the rule of law. It is recommended that mandatory sentencing laws are abolished, and that the use of non-custodial measures is expanded where appropriate.
Response to the COVID-19 pandemic
Australians have experienced restrictions on civil and political rights due to lockdowns and the closing of domestic and international borders in response to the pandemic. While some of these restrictions may have been justifiable on a short-term basis, the Commission is concerned that they may not continue to be justified into the longer term.
It is recommended that the government ensures measures in response to the pandemic are reasonable and proportionate, imposing the minimum necessary intrusion on rights and removing restrictions as soon as the public emergency is over.
Business and human rights
The Australian government has been deemed as not taking the necessary steps to protect human rights in a business context. It is recommended that the government develops a National Action Plan on Business and Human Rights, and that Australian companies operating in high-risk sectors and geographic locations be required to conduct human rights and environmental due diligence.
In Australia, there are few national laws and policies that protect human rights, and specifically children’s rights. The Commission recommends that the government implement the UN Convention on the Rights of the Child into Australian law, develop a national plan for the wellbeing of children, and create a position with overall responsibility for children’s rights.
Constitutional and legislative framework
While some of Australia’s international human rights commitments have been enshrined in domestic law, many implementation gaps remain. The government should ensure that Australia’s international human rights obligations are comprehensively incorporated into law at the federal level.
Counter-terrorism and national security laws
The Commission is concerned that some of Australia’s counter-terrorism and national security laws limit human rights in instances where this is not reasonable, necessary and proportionate to a legitimate objective. There are concerns about specific laws including those relating to preventative detention orders, broad “stop, search and seize” powers, and presumptions against bail.
It is recommended that the government amend existing counter-terrorism laws that unduly limit human rights.
Modern slavery includes human trafficking and forced labour, and is a significant international problem. Since the last human rights review, Australia has taken significant steps forward by introducing the Modern Slavery Act 2018 (Cth), but the Commission has identified areas for improvement. Steps should be taken to address the Act’s lack of oversight mechanisms and the lack of penalties for businesses and other entities that fail to report under the Act.
Sexual harassment in the workplace
Following the National Inquiry into Sexual Harassment in Australian Workplaces, the Commission found that sexual harassment is common in Australian workplaces, and that the current system places the onus on the victim to complain.
It is recommended that government, in partnership with the business and community sectors, implement the recommendations of the inquiry, of which key focus areas include education and better workplace prevention and response.
Despite making some improvements, Australia still has a long way to go in ensuring that it adequately upholds the human rights of its citizens, as well as those across borders who interact with Australian businesses.
Key focus areas for improvement should include criminal justice and legislative reforms, protecting children, and ensuring that the liberties of all Australians are returned as soon as the COVID-19 situation is no longer considered a public emergency.