National Human Rights Action Plan Background Paper

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1 National Human Rights Action Plan Background Paper Attorney General s Department 9 February 2011 GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Telephone Facsimile Law Council of Australia Limited ABN

2 Table of Contents Introduction... 3 Lessons from past Australian Plans... 4 Lessons from overseas... 5 Critical challenges for a new Australian Action Plan... 7 The determination of an appropriate time frame for the new Action Plan... 7 Ensuring the initiatives included in the new Action Plan are action orientated with appropriate and meaningful and measurable indicators and benchmarks... 7 The provision of appropriate management structures and adequate resources... 8 Generating broad political support and parliamentary oversight... 9 Ensuring effective consultation and buy-in by States and Territories... 9 Attachment A: Profile of the Law Council of Australia National Human Rights Action Plan Background Paper Submission Page 2

3 Introduction 1. The Law Council of Australia welcomes the release of the National Human Rights Action Plan Background Paper ( the Background Paper ) by the Attorney General s Department on 14 December 2010 and is pleased to provide the following feedback on the process outlined for developing a new National Human Rights Action Plan ( the Action Plan ). 2. The development of a new Action Plan is an opportunity for the Australian Government to renew its international leadership role in encouraging and modelling strong government commitment to improving the enjoyment of human rights by citizens in practical ways. The Law Council notes Australia s seminal role in introducing the world to the concept of Action Plans at the 1993 World Conference on Human Rights. The Action Plans, which have since gained considerable status internationally and been adopted by more than 29 countries, are now regularly referred to by the Human Rights Council and numerous other UN bodies in their respective human rights work 3. The development of a new Action Plan is also an opportunity for the Australian Government to entrench its commitment to delivering on its own human rights initiatives announced under the Australia s Human Rights Framework 1 and those identified as national priorities by the 2009 National Consultation on Human Rights In the view of the Law Council, the new Action Plan must be developed and owned by the Australian Government, who must be held accountable for its implementation. However, it must also be developed and owned by the Australian community from the most vulnerable to the most powerful and receive support and commitment across the political spectrum. Above all, the new Action Plan must be credible and achievable it must avoid the failings and short comings of past Australian Action Plans and be directed towards delivering meaningful change to the protection, promotion and fulfilment of human rights in Australia. 5. With these key objectives in mind, the Law Council is pleased that the Australian Government appears to be adopting a serious, thoughtful and thorough approach to preparing for the development of a new Action Plan. 6. The Law Council particularly welcomes the following features of the Government s approach as outlined in the Background Paper: the conduct of a baseline study to determine the current status of human rights protection in Australia and to inform the key human rights objectives and priorities to be included in the new Action Plan; consideration and reliance on the Office of the United Nations High Commissioner for Human Rights Handbook on National Human Rights Plans of Action ( the OHCHR Handbook ); 3 consideration of the experience of other comparable jurisdictions; 1 Commonwealth Government, Australia s Human Rights Framework, released 21 April 2010 available at 2 National Human Rights Consultation Report (September 2009), Recommendations 4 and 9 available at 3 Office Of The United Nations High Commissioner for Human Rights Handbook on National Human Rights Plans of Action United Nations New York and Geneva (29 August 2002) available at National Human Rights Action Plan Background Paper Submission Page 3

4 commitment to ensuring that the new Action Plan is action-oriented, with ongoing monitoring and reporting; consideration of the wealth of information collected and observations made during the 2009 National Consultation on Human Rights; and the provision of multiple opportunities for civil society to contribute to the development and implementation of the new Action Plan. 7. Noting these welcome components of the Government s approach, the Law Council also wishes to offer the following feedback on: the critical lessons arising from the development and implementation of past Australian Action Plans; the lessons that can be drawn from comparable overseas experiences; and the critical challenges to be considered and addressed in order to develop and implement a credible and achievable Australian Action Plan. Lessons from past Australian Plans 8. Australia s first Action Plan, released in 1994 was developed as an example to the world of how such plans might be developed. Unfortunately, due primarily to the haste at which this plan was developed, it had very little impact, if any, on promoting and protecting human rights in Australia. 9. The 1994 Plan was prepared without consultation with members of civil society, States or Territories or Federal Parliament, and there was no attempt to compile a baseline study or other status report. The Plan failed to include any new initiatives that were not already part of existing policy commitments. Further, no clear target dates were attached to initiatives and there was no process for reviewing or monitoring the Plan. No management structures or resources were allocated to the Plan, which also suffered from a lack of political interest and support. Strikingly, the 1994 Plan made little reference to human rights or the international human rights obligations that Australia has assumed. 10. The second Australian Action Plan, released in 2004, was also prepared following very little consultation, with only select non-government organisations being invited to comment in very short time frames. Unfortunately, the development of the 2004 Plan did not include a review of the 1994 process or a review of international developments such as the release of the Office of the OHCHR Handbook or the experience of other comparable countries. 11. The content of the 2004 Plan has been subject to extensive criticism, including by the Law Council. The 2004 Plan outlines the Australian Government s five priorities for human rights promotion in Australia as: promoting a strong, free democracy; human rights education and awareness; assisting disadvantaged groups to become more independent; supporting the family; and National Human Rights Action Plan Background Paper Submission Page 4

5 promoting human rights internationally. 12. The Law Council has previously submitted that the 2004 Plan reflects a narrow approach to the promotion and protection of human rights in Australia and fails to tackle human rights issues the subject of significant public debate and, moreover, fails to reflect a commitment by the Federal Government to: 4 uphold and promote Australia s obligations under international human rights agreements; legislate, where necessary, to give effect to internationally recognised human rights; and ensure that all of Australia s laws and policies are compatible with human rights standards. 13. The 2004 Plan now appears to be considered expired and is no longer publicly accessible through the Attorney-General s Department website. 14. The 1994 and 2004 experiences demonstrate the critical importance of: utilising existing knowledge and experience, including that within and outside of Australia, for example by reviewing the processes adopted in 1994 and 2004 and considering the content of the OHCHR Handbook; undertaking broad, meaningful consultation with all stakeholders when developing the plan; identifying clear objectives and initiatives, accompanied by target dates, following a detailed consideration of the status of human rights protection in Australia; taking steps to generate strong political support and commitment to the Action Plan; and providing appropriate administrative support to underpin the implementation of the Action Plan. Lessons from overseas 15. As noted above, more than 29 countries have adopted or currently have in place Action Plans. These Plans vary in quality and effectiveness and in their relevance to the Australian experience. 16. In a discussion paper recently prepared for the Australian Human Rights Commission (AHRC), Bill Barker, who was instrumental in the drafting of the Handbook on action plans for the UN High Commissioner on Human Rights, suggests that the recent experiences of Sweden and New Zealand have the most to offer policy makers in Australia. 5 4 Law Council of Australia, A Charter: Protecting the rights of all Australians: Submission to the National Consultation on Human Rights (5 May 2009) available at 5 Bill Barker, Protecting, Promoting and Fulfilling Human Rights in Australia: A National Human Rights Action Plan Approach A paper prepared for the Australian Human Rights Commission (January 2011) p. 20. National Human Rights Action Plan Background Paper Submission Page 5

6 17. Sweden has developed and implemented two Action Plans, the first in , 6 the second in A comprehensive evaluation of the first Action Plan was taken into account in the development of the second Plan. From this evaluation, the second Plan was developed following wider consultation with a broad range of stakeholders, including political parties, human rights institutions, government, judiciary, and non-government organisations. It also drew upon a baseline study that was conducted concurrently with the consultation process. Broad parliamentary support was developed through the establishment of an Inter-Ministerial Working Group, who also had responsibility for monitoring and reviewing the Plan. 18. The structured and consultative approach to development of the second Plan enabled it to withstand significant political change. Despite a change in government from a social democratic party to a centre right party mid way through the second Plan, the new Swedish Government continued to commit to and fund the implementation of the second Plan. 19. The development of the New Zealand (NZ) Action Plan 8 is unique in that it was based on legislation (Human Rights Amendment Act 2001) and managed by NZ s national human rights institution, the Human Rights Commission, rather than a government agency. 20. The NZ Action Plan was underpinned by a substantial baseline study that considered a broad range of human rights issues, including civil, political, economic social and cultural rights, children s rights, race relations and human rights education. The study addressed the legal and policy context associated with these issues and included frank reports on the actual experiences of members of the NZ community. 21. Drawing on the baseline study, the NZ Action Plan identifies the most pressing human rights issues facing NZ and a set of outcomes warranting priority attention. Prioritisation of these issues was based on answers to a set of questions, including: whether the action will make an improvement to one of the most pressing or significant human rights issues identified in the status report;address a gap in current actions and strategies; or respond to evidence that current actions or strategies are not working; and whether the action is realistic and achievable. 22. The NZ Action Plan has been positively described as a model for other countries, but also highlights the risks associated with investing national human rights institutions with the primary responsibility for the development and implementation of Action Plans. A risk associated with the NZ Action Plan is that ownership and responsibility for the Plan has remained with the Human Rights Commission rather than the NZ Government. 23. The Swedish and NZ experience would appear to hold the following lessons for Australia: comprehensive baseline studies that report on the status of human rights protections are critical to identifying objectives and targets to be included in the Action Plan; 6 Written Communication, A National Human Rights Action Plan A summary Skr. 2001/02:83 7 A national action plan for human rights , Summary of the Swedish Government Communication (1005/06:95) available at 8 The New Zealand Action Plan for Human Rights available at National Human Rights Action Plan Background Paper Submission Page 6

7 consideration should be given to how to best prioritise objectives and initiatives to be included in the Action Plan; early efforts to generate broad political support for the Action Plan can lead to continuity in the face of political change; careful consideration should be given to the relationship between national human rights institutions and the government to ensure government ownership and responsibility for the Action Plan; and effective and regular monitoring and review of past and existing Action Plans assists in the development of subsequent Action Plans. Critical challenges for a new Australian Action Plan 24. The Law Council is pleased that the Background Paper proposes an approach that responds to many of the lessons described above. The Background Paper, for example, indicates a strong commitment to broad consultation and to the undertaking of a baseline study. 25. However, the Law Council wishes to emphasis the need to address the following issues and challenges when undertaking the processes outlined in the Background Paper: Determining an appropriate time frame for the new Action Plan 26. Careful consideration should be given to the appropriate time frame for the new Action Plan. While overseas experience suggests a general preference for Action Plans to have five year time frames, it may be preferable for the new Australian Action Plan to adopt a shorter time frame of three years. This could assist in focusing and prioritising the objectives and initiatives included in the plan and would also align with the review of Australia s Human Rights Framework which is scheduled for Alternatively, if a five year plan is adopted, 2014 could be an important time to review the implementation of the Action Plan on its own. Ensuring the initiatives included in the new Action Plan are action orientated with appropriate and meaningful and measurable indicators and benchmarks 27. The Law Council is pleased to see the Background Paper include a commitment to ensuring the initiatives included in the Action Plan are action orientated, and avoid the broad, exclusively aspirational language that has been a feature of past Australian Plans. This could be assisted, for example, by identifying key human rights issues emerging from the baseline study and then utilising the prioritisation process adopted in NZ to determine what issues should be given priority and what types of initiatives would have the most significant impact on the human rights issue without duplicating or detracting from existing policy commitments. 28. Past Australian experience suggests that it is not enough to simply include existing policy commitments in the Action Plan new initiatives, specially targeted at addressing human rights concerns or violations identified in the baseline study must be developed. To this end, while the initiatives already contained in the Human Rights Framework may provide an important starting point for developing initiatives National Human Rights Action Plan Background Paper Submission Page 7

8 and targets for the Action Plan, further development of these and other initiatives is essential to avoid the shortcomings of previous plans. 29. The recommendations contained in the report of the 2009 National Human Rights Consultation may also provide an important starting point for responding to key issues and priorities emerging from the baseline study. 9 Similarly, the recent recommendations adopted by the UN Human Rights Council following the Universal Periodic Review of Australia also provide an important check list of areas in which Australia needs to improve its compliance with and performance of its international human rights obligations and could form the basis of initiatives or targets in the new Action Plan The development of appropriate, meaningful and measurable indicators and benchmarks is also critical. Indicators should be carefully framed so as to provide clear guidance to policy makers, and those responsible for implementing and evaluating the plan. Insight may be gained from the work on human rights benchmarks and indicators in the development context. 11 The provision of appropriate management structures and adequate resources 31. When considering the development of the new Action Plan, past experience suggests that early consideration of management structures and resourcing is critical. The Background Paper provides that the Commonwealth Attorney-General will oversee the project and that a committee of senior officials from all relevant Australian Government departments will steer the project. The Paper states that Secretariat functions will be managed by the Commonwealth Attorney-General s Department. 32. The Law Council supports this approach, and is particularly pleased to see the involvement of all Australian Government Departments in the steering of the project. However, the effectiveness of this proposed management structure will depend upon adequate human and financial resourcing. The Law Council notes that the baseline study, together with the broad consultation approach outlined in the Background Paper are likely to involve significant human resources, access to experts and appropriate resources to conduct community meetings or other public forums. 33. Once the Action Plan has been developed, a long term commitment of resources will be necessary to ensure that the Plan is accompanied by a permanent Secretariat with appropriate resources to ensure the community is aware of the Action Plan, oversee the implementation of the Plan s initiatives, monitor and report on progress, and regularly review the effectiveness of the Plan. 34. Thought also needs to be given to budgeting for Action Plan initiatives. If funding for Action Plan initiatives is to be drawn from the existing budgets of Departments, a restructuring of budget priorities may need to occur to ensure that the Action Plan initiatives are given sufficient priority. 9 National Human Rights Consultation Report (September 2009), available at 10 UN Human Rights Council, Draft Report of the Working Group on the Universal Periodic Review of Australia, (31 January 2011) UN Doc A/HRC/WG.6/10/L For example see OHCHR documents HRI/MC/2006/7 and HRI/MC/2008/3 and Indicators for Human Rights Based Approaches to Development in UNDP Programming: A User s Guide, available from National Human Rights Action Plan Background Paper Submission Page 8

9 Generating broad political support and parliamentary oversight 35. Past Australian and overseas experience suggests that an Action Plan that receives broad political support and is developed though a process of engagement with Parliament is likely to be more effective and capable of withstanding political change. 36. The Law Council is pleased to see the Government adopt a consultative approach to the development of the new Action Plan, and hopes that this process includes a genuine effort to obtain and consider the views of the Federal Opposition, the Australian Greens and Independents. 37. The Law Council is also pleased that the Commonwealth Attorney General will have oversight of the development of the new Action Plan. Government ownership and responsibility is an important feature of successful Action Plans around the world. However, the Law Council also encourages the Government to consider the appropriateness of a more direct role for other parliamentarians in the development and implementation of the Action Plan. 38. For example, there could be a role for an existing or new Joint Parliamentary Committee to play in contributing to the development of the plan, generating bipartisan support for the plan and monitoring and reviewing its implementation. The proposed new Joint Parliamentary Committee on Human Rights 12 could provide a vehicle for facilitating this level of parliamentary engagement with the process. Ensuring effective consultation and buy-in by States and Territories 39. The effectiveness of any strategy to address human rights concerns in Australia depends upon the commitment of the governments of the States and Territories, who are primarily responsible for public service delivery in key areas such as health and education. For this reason, effective consultation with the States and Territories that ideally results in bipartisan support for the objectives of the Action Plan is critical. 40. The Background Paper recognises that Australia has a federal system of government, and provides that State and Territory governments will be asked to contribute details of actions they will be taking to improve human rights in their jurisdictions. 41. This is an important component to the consultation process and may also be relevant to the preparation of the baseline study, however the Law Council suggests that a more in-depth form of consultation with the States and Territories, including with all political parties in those jurisdictions and community and non-government organisations, may be necessary to achieve the type of support needed to ensure the success of the new Action Plan. Such consultation could be conducted through or in collaboration with the State and Territory Governments. 42. If this form of full consultation within each jurisdiction is considered to be unduly time consuming and resource intensive, Bill Baker has suggested that an alternative could be to frame the Action Plan s objectives that fall within the jurisdictions of 12 See Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill For further information see Senate Committee on Legal and Constitutional Affairs, Report on Inquiry into the Provisions of the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 (28 January 2011) available at National Human Rights Action Plan Background Paper Submission Page 9

10 States and Territories as process objectives rather than substantive ones. 13 For example, an objective may be for Commonwealth agencies to engage with State and Territory counterpart agencies to establish agreed human rights structures, objectives or benchmarks. Where a Commonwealth agency has a substantive objective in a particular area, the Action Plan could include objectives that would involve engagement of the State and Territory agencies in work toward the development of their own human rights plans, rather than setting specific objectives for States and Territories to achieve. 43. Provided the above challenges and lessons are considered and addressed, the Law Council is confident that the processes outlined in the Background Paper will assist in the development of a credible, achievable Action Plan. 44. The Law Council notes that these comments are likely to be the first of a number of contributions from the Council to the development of the Action Plan. The Council intends to utilise these future opportunities to provide comments on the substantive content of the Action Plan and looks forward to the release of the findings of the baseline study to assist in this process. The Law Council has previously indicated its strong support for the full implementation of the recommendations made following the 2009 National Consultation on Human Rights, and these views are likely to inform its subsequent comments on the content of the new Action Plan. 13 Bill Barker, Protecting, Promoting and Fulfilling Human Rights in Australia: A National Human Rights Action Plan Approach A paper prepared for the Australian Human Rights Commission (January 2011) p. 36 National Human Rights Action Plan Background Paper Submission Page 10

11 Attachment A: Profile of the Law Council of Australia The Law Council of Australia is the peak national representative body of the Australian legal profession. The Law Council was established in It is the federal organisation representing approximately 50,000 Australian lawyers, through their representative bar associations and law societies (the constituent bodies of the Law Council). The constituent bodies of the Law Council are, in alphabetical order: Australian Capital Territory Bar Association Bar Association of Queensland Inc Law Institute of Victoria Law Society of New South Wales Law Society of South Australia Law Society of Tasmania Law Society of the Australian Capital Territory Law Society of the Northern Territory Law Society of Western Australia New South Wales Bar Association Northern Territory Bar Association Queensland Law Society South Australian Bar Association Tasmanian Bar Association The Victorian Bar Inc Western Australian Bar Association LLFG Limited (a corporation with large law firm members) The Law Council speaks for the Australian legal profession on the legal aspects of national and international issues, on federal law and on the operation of federal courts and tribunals. It works for the improvement of the law and of the administration of justice. The Law Council is the most inclusive, on both geographical and professional bases, of all Australian legal professional organisations. National Human Rights Action Plan Background Paper Submission Page 11

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