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Human rights in Australia are generally respected by the government of Australia for the white non indigenous peoples of Australia. Although Australia is the only western democracy with no bill of rights[1], numerous laws have been enacted to protect human rights and the Constitution of Australia has been found to contain certain implied rights by the High Court. However, Australia is criticised for its past and present treatment of the indigenous population of Australia.

The Australian Government is presently considering how to better protect human rights through a National Human Rights Consultation. The Consultation, which is being chaired by Frank Brennan[2], is expected to report back to the government on the September 30, 2009.

Contents

Australian Human Rights Commission

The Australian Human Rights Commission (AHRC) (previously known as the Human Rights and Equal Opportunity Commission) is a national independent statutory body of the Australian government. It has responsibility for the investigation of alleged infringements under Australia’s anti-discrimination legislation.

Matters that can be investigated by the Commission include "discrimination on the grounds of race, colour or ethnic origin, racial vilification, sex, sexual harassment, marital status, pregnancy, or disability."

Private members, the Greens party and the Democrats party have tried to add "sexuality" and/or "gender identity" to this list above, which has always failed to pass at least one house since 1995[3].

Universal suffrage

Women

South Australia was one of the first jurisdictions in the world to grant women suffrage when it allowed women to vote and to stand for Parliament in 1894. The passage of the Commonwealth Franchise Act gave women the right to vote at the federal level in 1902. The dates for the other states of Australia are summarised below.

Right to Vote Right to stand for Parliament
South Australia 1894 1894
Western Australia 1899 1920
Australia (Commonwealth) 1902 1902
New South Wales 1902 1918
Tasmania 1903 1921
Queensland 1905 1915
Victoria 1908 1923

Indigenous Australians

[1]

1111 - Australian referendum, 1967 (Aboriginals) - is often recalled as the year that the Aboriginal people of Australia gained the right to vote, however this is an incorrect date, and an over-simplification of the processes involved. When the state constitutions of New South Wales, Victoria, South Australia and Tasmania were framed in 1850s, voting rights were granted to all male British subjects over the age of 21, which included Aboriginal men. However, few Aborigines were aware of their rights and hence very few participated in elections. The situation became murkier when the Commonwealth Franchise Act was passed in 1902. The Act gave women a vote in federal elections but Aboriginal people and people from Asia, Africa or the Pacific Islands (except for Māori) were excluded unless entitled under Section 41 of the Australian Constitution. Section 41 states that any individual who has gained a right to vote at a state level, must also have the right to vote in federal elections. The Solicitor-General, Sir Robert Garran, interpreted it to mean that Commonwealth rights were granted only to people who were already State voters in 1902. What transpired was a situation where Aboriginals who had already enrolled to vote were able to continue to do so, whereas those who had not were denied the right. This interpretation was challenged in Victoria in 1924 by an Indian migrant, where the magistrate ruled that Section 2 meant that people who acquired State votes at any date were entitled to a Commonwealth vote. The Commonwealth government instead passed laws giving Indians the vote (There were only about 100 in Australia at the time), but continued to deny other non-white applicants.

In the 1988s, groups began to lobby the Commonwealth government to grant Aboriginal suffrage, and in 1949 the Chifley Labor government passed an Act to confirm that all those who could vote in their States could vote in the Commonwealth. However, little was done to publicise the changes, and many Aboriginal Australians remained unaware of their rights.

In the 1960s, reflecting the strong Civil rights movements in the United States and South Africa, many changes in Aborigines’ rights and treatment followed, including finally full voting rights. The Menzies Liberal and Country Party government gave the Commonwealth vote to all Aborigines in 1962. Western Australia gave them State votes in the same year, and Queensland followed in 1965.

Capital punishment

The last use of the death penalty in Australia was in Victoria in 1967. Ronald Joseph Ryan was hanged at Pentridge Prison on February 3, 1967 for the murder of a prison guard, George Hodson.

Capital punishment was officially abolished for federal offences by the Death Penalty Abolition Act 1973. The various states abolished capital punishment at various times, starting with Queensland in 1922 and ending with New South Wales in 1985.

Aboriginal Australians

The Aboriginal Tent Embassy set up in Canberra by activist agitating for the rights of Indigenous Australians.

Australian Aborigines are the indigenous peoples of Australia. Their ancestors arrived in Australia over 50,000 years ago.

Massacres and dispossession of land

In 1770, Captain James Cook took possession of the east coast of Australia and named it New South Wales in the name of Great Britain. The Aboriginal population was decimated by British colonisation which began in 1788, when news of the land's fertility spread to Europeans. A combination of disease, loss of land (and thus food resources) and war reduced the Aboriginal population by an estimated 90% during the 19th century and early 20th century.[citation needed]

A wave of massacres and resistance followed the frontier. The last massacre was at Coniston in the Northern Territory in 1928. Poisoning of food and water has been recorded on several different occasions.

Stolen generations

'Stolen Generation' is the term controversially used to mean the Australian Aboriginal children who were removed from their families by Australian government agencies and church missions between approximately 1900 and 1972. The nature of the removals, their extent, and its effects on those removed, is a topic of considerable dispute and political debate within Australia to the point that the term "Stolen Generation" is often referred to in the media as the "so-called Stolen Generation".

According to a government inquiry on the topic, at least 30,000 children were removed from their parents and the figure may be substantially higher (the report notes that formal records of removals were very poorly kept). Percentage estimates were given that 10–30% of all Aboriginal children born during the seventy year period were removed.[citation needed]

On 13 February 2008, Prime Minister Kevin Rudd as well as the Leader of the Opposition, Brendan Nelson, delivered an official apology on behalf of the Parliament of Australia to the Stolen Generations:

"For the pain, suffering and hurt of these Stolen Generations, their descendants and for their families left behind, we say sorry," To the mothers and fathers, the brothers and sisters, for the breaking up of families and communities, we say sorry. "And for the indignity and degradation thus inflicted on a proud people and a proud culture, we say sorry."

Northern Territory Emergency Response

The Northern Territory Emergency Response has been controversial. It is a response to the Little Children are Sacred report into child sexual abuse in Northern Territory Aboriginal communities. It is exempt from the Racial Discrimination Act 1975.[4] It entails restrictions on alcohol and kava, a ban on pornography, the compulsory acquisition of townships currently held under the title provisions of the Native Title Act 1993 through five year leases with compensation on a basis other than just terms. (The number of settlements involved remains unclear.), the suspension of the permit system, the quarantining of a proportion of welfare benefits to all recipients in the designated communities and of all benefits of those who neglect their children, and the abolition of the Community Development Employment Program (CDEP).

Health

Most indigenous Australians live in either major cities, inner or outer regional areas of Australia, with 26.5% of Indigenous peoples living in remote or very remote areas. The health of indigenous Australians is significantly below that of the rest of the country for instance a 2006 study by the Australian Institute of Health and Welfare showed that 70% of the Aboriginal population, who number almost 500,000, die before the age of 65, compared with 20% of non-indigenous Australians. The average life expectancy for Aboriginal men is 59, compared with 77 for non-indigenous males with child mortality rates 3 times higher than the nation average.

The suicide rate amongst Aboriginal Australians is almost 3 times higher (at 4.2%) than the national average (1.5%).

The most common causes of death among the adult population are diabetes, heart disease and cancer. Indigenous people suffer from a rate of death from many diseases multiple times the rate of non-indigenous people according to a 2006 report by the Human Rights & Equal Opportunity Commission. [5]

Life Expectancy

Over the twentieth century in Australia, life expectancy for women increased 26.7 years;[6] while for males it increased 28.7 years.[7] Other statistics show remarkable reductions in the impact of diseases. For example, death rates from cardiovascular disease have fallen 30% in the general population in Australia since 1991, and 70% in the last 35-years and the infant mortality rate figure reduced 25% over 1993 - 2003 and 48% over 1983 - 2003. These statistics demonstrate that significant improvements in the health and life expectation of population groups can occur within decades.

However, despite significant health gains being made by Indigenous peoples in the 1970s and 1980s, health inequality continues to grow across a number of indicators. This can be attributed, in part, to both a slowing up of health gains being made by Indigenous peoples and the rapid health gains made by the non-Indigenous population in recent decades.

Indigenous peoples' self-assessed health status shows they believe little improvement has occurred over the past decade. Over the NATSIS 1994 - NATSISS 2002, the percentage of Indigenous peoples assessing their health as 'fair/poor' rose from 17.5% to 23.3%. Correspondingly, there was no statistically significant increase in the number who assessed their health as 'excellent/very good' or reported reductions in smoking; or alcohol consumption.[8]

The ABS has estimated that the life expectation for Indigenous females decreased slightly from 63 to 62.8 years over 1997 - 2001. For males, it increased from 55.6 to 56.3 years. The life expectation inequality gap increased: between Indigenous and non-Indigenous males: rising from 20.6 to 20.7 years; while between Indigenous and non-Indigenous females, it rose from 18.8 to 19.6 years.[9] The life expectation formula that was used to produce these estimates has now been superseded by a formula that produces an estimate over five year periods.

Under a new life expectation formula adopted by the ABS in 2003, Indigenous males' life expectation was estimated to be 59.4 years over 1996-2001, while female life expectation was estimated to be 64.8 years. A life expectation inequality gap of approximately 18-years was identified, a reduction of approximately three years on estimates produced in 2001 under the now superseded formula. The next estimate will be calculated over 2001 - 2006[10].

Indigenous life expectation appears to be similar to that of people in low development states. Although international comparisons should be made with some caution (because of the different formulae with which life expectation is calculated between jurisdictions), with reference to the 2004 United Nation's Human Development Index, Indigenous peoples appear to have a life expectation approximating that of the people of Pakistan (60.8 years)[11].

Immigration and asylum seekers

White Australia policy

The White Australia policy, the policy of limiting immigration into Australia to only people of European origin, was the official policy of all governments and all mainstream political parties in Australia from the 1890s to the 1950s, and elements of the policy survived until the 1970s. Although the expression “White Australia Policy” was never in official use, it was common in political and public debate throughout the period.

Mandatory detention

The entrance of the former Woomera IRPC.

The term 'mandatory detention' describes the legislation and actions of the Australian government to detain all persons entering the country without a valid visa, including children. The policy started under the Hawke Labor government with the passing of the Migration Amendment Act in 1992. The immigration minister, Gerry Hand, explained that the policy, to be applied on a case-by-case basis would facilitate the processing of refugee claims, prevent de facto migration and save the cost of locating people in the community. However the Migration Reform Act of 1994 introduced by the next immigration minister, Senator Nick Bolkus, made the detention of 'unlawful non-citizens' mandatory[12].

During the late 1990s and early 2000s, these unauthorised arrivals, popularly referred to as boat people, were transferred to one of the Australian immigration detention facilities on the Australian mainland, or to Manus Island or Nauru as part of the Pacific Solution.

National Inquiry into Children in Immigration Detention

The then HREOC held an inquiry into mandatory detention and found that many basic rights outlined in the Convention on the Rights of the Child were denied to children living in immigration detention.

The Inquiry has found that Australian laws that require the mandatory, indeterminate and effectively unreviewable immigration detention of children, and the way these laws are administered by the Commonwealth, have resulted in numerous and repeated breaches of the Convention on the Rights of the Child.

The Inquiry made a range of specific findings in relation to:

  • monitoring of conditions in detention centres
  • Australia's detention laws and policy
  • Australia's refugee status determination system as it applies to children
  • safety and security
  • mental health
  • physical health
  • children with disabilities
  • education
  • recreation and play
  • unaccompanied children
  • religion, culture and languages
  • temporary protection visas.

These specific findings, based on evidence received by the Inquiry, were assessed against Australia's human rights obligations under the Convention on the Rights of the Child. From this, the Inquiry reached its major findings and recommendations.

Homosexuality

Australian society is generally tolerant of homosexuality (only about 30 percent of the population thinks that homosexuality is wrong) [2]. Sexual activity is not illegal between two consenting adults in private under the Human Rights (Sexual Conduct) Act 1994 [3]. Sexual conduct between a female and a female (lesbianism) was never illegal in Australia at all with the new Criminal Codes getting implemented at the time of federation in 1901, but sexual activity involving sodomy (oral and anal sex between a male and a male and a male and a female) has been progressively legal from 1975 in South Australia, through to 1997 in Tasmania. Same-sex couples get most of the same rights as opposite-sex couples - except for marriage, adoption, surrogacy and ART (assisted reproductive technology), however full-joint adoption for same-sex couples is provided in Western Australia and ACT only and in Tasmania for same-sex couples if one of the parents is the child's biological parent (in a registered relationship under the Relationships Act 2003).

Legislation exists within all Governments (except for the federal Government) against some forms of discrimination against LGBT persons and same-sex couples under the terms "sexuality", "homosexuality" (NSW only), "sexual orientation", "marital status", "domestic status", "relationship status", etc - with religious exceptions. It is also completely legal for the Commonwealth (federal) Government to discriminate on the basis of sexual orientation - except for work and workplace entitlements under the Fair Work Act 2009 [4]. All Governments (along with a few Local Governments areas such as Sydney, Melbourne and Yarra) recognises either a registered partnership or some form of unregistered co-habitation as "de facto" or "domestic" partners, which recognises both opposite-sex and same-sex relationships. Since 1 July 2009, the Commonwealth government provides both opposite-sex couples and same-sex couples the same equal treatment in 100 laws, which gives the same level of recognition to same-gender couples as de facto opposite sex relationships [5].

As for Same-sex marriages and civil unions which can not be performed or recognised as valid under Australian Commonwealth (federal) law under the Marriage Act 1961. Under section 51(xxi) [13] of the Australian Constitution, both the federal and state governments are permitted to pass legislation regarding marriage, but any state law recognising same-sex marriage would be over-ridden by federal legislation to the extent of the inconsistency (as per section 109 [14]). Until 2004 the Marriage Act 1961 did not define marriage, but the common law definition of marriage as "a union between a man and a woman to the exclusion of all others" was applied by Australian courts and was taken to be "settled law."

Kevin Rudd, Malcolm Turnbull and Brendon Nelson ‘’’“fully support rights for same-sex couples”’’’, but not same-sex marriage(s) [15][16][17][18]. A recent 2007 Galaxy Poll found that 57% of polled Australians "support" same-sex marriage.[19]

The 2010 Legal situation regarding the recognition of relationships in Australia

De facto relationships status Registered relationships status Anti-discrimination legislation Adoption and foster parenting Recognition of parents on birth certificate Access to fertility (such as ART, IVF, surrogacy, AI, etc)
ACT Yes Yes Yes Yes Yes Yes
Commonwealth of Australia Yes No (promised) No (promised) Yes (family law) Yes (family law) Yes (family law)
New South Wales Yes No (proposed) Yes No (under review) Yes Yes
Norfolk Island Yes No Yes Yes Yes Yes
Northern Territory Yes No Yes No Yes Yes
Queensland Yes No (promised) Yes No (under review) Yes Yes
South Australia Yes No Yes No No No
Tasmania Yes Yes Yes Yes Yes Yes
Victoria Yes Yes Yes No (under review) Yes Yes
Western Australia Yes No Yes Yes Yes Yes

See also

References

  1. ^ Human Rights Act for Australia
  2. ^ Frank Brennan
  3. ^ Australian Democrats - HREOC report shows equality is long overdue
  4. ^ Human Rights and Equal Opportunity Commission, Submission of the Human Rights and Equal Opportunity Commission (HREOC) to the Senate Legal and Constitutional Committee on the Northern Territory National Emergency Response Legislation, 10 August 2007
  5. ^ Human Rights & Equal Opportunity Commission (2006) "A statistical overview of Aboriginal and Torres Strait Islander peoples in Australia"
  6. ^ From 54.8 years to 81.5 years, Baum F, The New Public Health, (2nd ed), Oxford University Press, New York, 2002, p198.
  7. ^ From 47.2 years to 75.9 years ibid.
  8. ^ ABS, Deaths 2003, Series cat. no.3302.0, ABS, Canberra, 2004, p15.
  9. ^ ABS, Deaths 2001, op.cit., p101, unnumbered table: 'Experimental Estimates of Life Expectancy at Birth, Indigenous'.
  10. ^ ABS, Experimental Estimates and projections, Aboriginal and Torres Strait Islander Australians, op.cit., p15.
  11. ^ United Nations Development Program, Human Development Report 2004, Oxford University Press, New York, 2004, pp139 -142, 'Human Development Index'.
  12. ^ E-Brief - The detention and removal of asylum seekers
  13. ^ Commonwealth of Australia Constitution Act - Section 51
  14. ^ Commonwealth of Australia Constitution Act - Section 109
  15. ^ The Australian - Gay couples deserve 'equal treatment'
  16. ^ SameSame.com - Ruddy Good News - What The Election Results Mean For Us
  17. ^ The Australian - Nelson backs gay reforms
  18. ^ News.com.au - Turnbull gets in ring for gay rights fight
  19. ^ "Majority support same-sex marriage - poll". Australian Associated Press. 21 June 2007. http://www.news.com.au/story/0,23599,21942737-1702,00.html. Retrieved 2007-07-02. 

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