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TITLE: AUSTRALIA HUMAN RIGHTS PRACTICES, 1993 DATE: JANUARY 31, 1994 AUTHOR: U.S. DEPARTMENT OF STATE AUSTRALIA Australia has a federal system of government and a long history as a multiparty parliamentary democracy. Federal, state, and local police carry out their functions in accordance with the requirements of the law, which respects and safeguards individual human rights. Australia has a developed economy, which includes manufacturing, mining, agriculture, and services, providing most Australians with a high per capita income. A wide range of government programs offer assistance for the minority of relatively disadvantaged citizens, but fiscal constraints are affecting the amount made available. People are free to hold private property, pursue economic and personal interests, associate with others, and organize trade unions. Basic human rights are ensured by law and respected in practice. The Government is firmly committed, both domestically and internationally, to the promotion of, and respect for, human rights. In part as a result of the April 1991 report of the Royal Commission, which investigated the deaths of Aboriginals while in custody, the Government administers many programs aimed at improving the socioeconomic conditions of Aboriginals and Torres Strait Islanders (ATSI), who together form about 1.6 percent of the population, and addressing longstanding discrimination against them. RESPECT FOR HUMAN RIGHTS Section 1 Respect for the Integrity of the Person, Including Freedom from: a. Political and Other Extrajudicial Killing Killing for political motives by the Government or by political organizations does not occur. The April 1991 Report of the Royal Commission investigating the deaths of ATSI in custody stated that, although the deaths were not caused deliberately, police and prison officials showed callous indifference and remarkable insensitivity, which contributed significantly to the deaths. The Commission also found that although ATSI died at approximately the same rate as others in prison, ATSI persons were arrested at a rate 29 times that of whites. In a report issued in August, the Australian Institute of Criminology stated that deaths among the overall population in custody have not fallen in the period since the Royal Commission completed its work. The Institute noted that during the last 2 years, the overall number of deaths had been essentially constant: 61 in 1991 and 62 in 1992. In contrast, however, Aboriginal deaths in custody were reported to have fallen from 11 in 1991 (18.0 percent) to 7 in 1992 (11.3 percent). Further, the rate of deaths per 1,000 persons in custody was significantly lower for Aboriginals than for others--a notable improvement over previous data attesting to a somewhat higher rate of deaths among Aboriginal prisoners. b. Disappearance There have been no instances of political disappearances. c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Australian law prohibits all these practices, and this prohibition is generally respected. In April 1991, however, the Royal Commission investigating ATSI deaths in custody indicated it had found credible evidence that ATSI had frequently been mistreated while in custody, and it recommended several steps to reduce the number of arrests and improve the treatment of ATSI prisoners to avoid further deaths. During 1993 federal and state authorities continued to address the problem of deaths and mistreatment of Aboriginals in custody by means of police reform, including improved detention procedures and training courses in Aboriginal culture. d. Arbitrary Arrest, Detention, or Exile Australian law prohibits arbitrary arrest and imprisonment. This prohibition is respected in practice. e. Denial of Fair Public Trial Australia's well-developed system of federal and state courts is fully independent. Both in law and in practice, defendants receive due process, including a presumption of innocence, a right to confront witnesses, and a right of appeal. On the other hand, previous practice in federal and state cases has not always required that the Government pay for an indigent defendant's lawyer. All Australian states except New South Wales have obliged people involved in criminal cases to meet a merit test before qualifying for legal aid. The purpose of the merit test is to save the Government from "wasting funds on unwinnable cases." Under these procedures, many, but not all, defendants in serious criminal cases have been found to deserve legal counsel. If the case was considered futile, the defendant was denied counsel at public expense. An unfavorable decision could be appealed to a panel of independent lawyers and social workers appointed by the Legal Aid Commission. The High Court has stated that it would be an exceptional case in which a person accused of serious charges could be tried fairly without a lawyer. In 1993 the State of Victoria took account of this decision by abolishing a previous restriction whereby counsel would not be provided if the cost was thought likely to exceed a specified amount, which at the end of 1993 equated to about $130,000. Defendants, including ATSI, appearing before an Australian Defense Force magistrate in cases subject to military jurisdiction, are exempt from the merit test. The Government maintains offices of special legal counsel for persons of ATSI descent, who are always entitled to receive legal aid. f. Arbitrary Interference with Privacy, Family, Home, or Correspondence Under Australian law and in practice, no search may be conducted without a judicially issued warrant. The Government does not interfere with the privacy of family, home, or correspondence. Section 2 Respect for Civil Liberties, Including: a. Freedom of Speech and Press A democratic political system, an effective judiciary, and diverse, vigorous, and independent news media combine to protect freedom of speech and press and full academic freedom. But Australia does not have a bill of rights, and journalists are sometimes subjected to court proceedings aimed at compelling them to reveal confidential sources. In May a South Australian journalist was fined about $3,200 for refusing to reveal sources for a published report alleging that criminal behavior was involved in financial losses by the State Bank of South Australia. In September a New South Wales journalist received a 2-month suspended sentence for refusing to reveal sources for an article on police corruption. b. Freedom of Peaceful Assembly and Association Australia does not have a written Bill of Rights but is a party to the International Covenant on Civil and Political Rights, which provides for freedom of assembly and expression; these freedoms are respected in practice. c. Freedom of Religion Australians have complete freedom of religion. A provision in the Constitution precludes the adoption of an official state religion. d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation Australia imposes no restrictions on movement within or outside the country. The rights of emigration and repatriation are also protected. The Government removes from Australia boat people whose applications for asylum or humanitarian admission are denied. In late 1992, the Australian High Court upheld the Government's right to detain boat people pending adjudication of their cases. As of September 30, 1993, Australian authorities had granted refugee status to 141 boat people, including 8 children born in Australia, out of some 540 applications from persons who had arrived since 1989, primarily from Cambodia, China, and Vietnam. Two hundred forty-one boat people were still being held in various detention camps, pending court decisions. In an August 13 submission to Parliament's Joint Standing Committee on Migration, the Department of Immigration and Ethnic Affairs stated, "It is of concern that some unauthorized arrivals have been held in detention for very long periods: in some cases for more than 3 1/2 years." The Attorney General's Department addressed this same point in its own submission to the Joint Standing Committee, noting the requirement of the International Covenant on Civil and Political Rights that detention not be excessively long. At the request of the Joint Standing Committee, the Canberra office of the U.N. High Commissioner for Refugees (UNHCR) also submitted comments, indicating that detentions were unduly prolonged in some cases and possibly contravened Article 31 (1) of the 1951 Convention Relating to the Status of Refugees. The status of 19,000 Chinese, who had been students in Australia at the time of the 1989 Tiananmen Square massacre, and their 9,500 dependents, was regularized in November 1993 when the Australian Government granted them permanent resident status. Prior to the regularization of their status, they had received a clear commitment that none would be returned to China against their will, unless they broke the law. They had also been given provisional status through the granting of temporary residence permits valid for 4 years. Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government Australians elect representatives to a two-chamber Federal Parliament as well as to numerous state and local bodies through free and open elections. Voting, by secret ballot, is compulsory in general elections for Australians 18 years of age and older; voters who do not at least collect ballots may be fined, and fines are in fact levied. Indigenous people are able to participate fully in Australia's political processes. They do so as voters, members of political parties, and candidates for elected office. Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights A wide range of local nongovernmental organizations concerned with human rights operates freely, and the Government permits unimpeded access to all international groups investigating alleged human rights violations. Australia actively promotes human rights. Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status Women Analysts and commentators state that violence in the home, mainly carried out by men against women, has enormous social and economic costs. Previous estimates suggested that domestic violence may affect as many as one Australian family in three or four, but government officials stress the impossibility of providing an accurate national profile of the number of women who are victims of domestic violence, because of underreporting and the lack of an agreed method for collecting statistics. The Government continued its community education campaign aimed at ending violence against women, operating under a 3-year budget of about $2.3 million. The National Committee on Violence Against Women produced a national strategy focused on the role of all levels of government in eliminating violence against women; it was endorsed by ministerial councils consisting of federal and state ministers with similar responsibilities. The Sex Discrimination Act of 1984 prohibits discrimination on the basis of sex, marital status, or pregnancy, and in late 1992 Parliament enacted amendments which significantly strengthened it. Separate 1986 legislation on affirmative action obliges employers to provide equal employment and equal promotion opportunities for female employees. Because of widespread concern about perceived bias against women in the legal system, the Australian Law Reform Commission initiated an inquiry into the equality of women before the law. Women's rights and welfare are promoted by community-based women's organizations, women's advisers in each of the states, and by the Government's Office of the Status of Women. Children The National Child Protection Council, a Commonwealth-funded body which also includes representatives of state governments as well as community members, promotes and conducts research on the prevention of child abuse and child neglect. The Council is examining the feasibility of a National Community Education Program, and it actively cooperates with nongovernmental organizations. In September the Government issued a national strategy aimed at preventing child abuse and creating an environment which supports families and communities and helps them meet their responsibilities to care for and protect children. In a report made public later in that same month, a senior judge of the Family Court of Australia strongly criticized the State of Victoria's plan to reduce funding for child protection services by $5 million. Adverse findings included charges that the Children's Court was threatened by primitive conditions, overcrowding, overwork, and a lack of resources; that insufficient resources were being allocated for the introduction of mandatory reporting of child abuse; and that the state government had "virtually abandoned the care and protection" of homeless adolescents. Indigenous People The Racial Discrimination Act of 1975 prohibits discrimination on grounds of race, color, descent, or national or ethnic origin, and most Australians have equal access to government services. In practice, however, ATSI continued to suffer abusive treatment and widespread discrimination. As a remedial measure, on both the federal and state level, police training now includes more emphasis on race sensitivity. Because the Aboriginal population is the most disadvantaged group in relation to education, housing, health, and employment, the federal and state governments provide special services which supplement the broad range of programs that are available to all Australians. These special services are aimed at improving socioeconomic conditions among ATSI. Parliament established the Aboriginal and Torres Strait Islander Commission to give ATSI more control over many government programs intended for their benefit and also set up the Council for Aboriginal Reconciliation, which is coordinating a 10-year program to promote better understanding between ATSI and other Australians. In September the State of Western Australia announced a plan aimed at quadrupling the number of Aboriginal police officers over a 5-year period. Observers affiliated with Aboriginal groups generally supported federal and state programs but tended to describe them as underfunded. Further, they noted that much of the underlying problem of racial discrimination stemmed from deeply rooted personal attitudes and views, expressing doubt that government programs, although valuable in themselves, will produce notable results in the short run. In addition, these observers questioned whether federal and state police authorities had shown sufficient diligence and energy in pursuing police reform. Spokespersons for Aboriginal groups also stressed the need for appropriate and nondiscriminatory legislation that would assist in resolving property disputes involving Aboriginal groups who claimed traditional ownership of land as a matter of native title under common law. In their view, it would not be sufficient for federal and state governments to guarantee existing titles and award financial compensation to Aboriginal groups whose interests might have been adversely affected by the Crown's past land grants (e.g., freehold title, pastoral leases, mining leases). Instead, they asserted, the principles of justice and nondiscriminatory treatment required that Aboriginal groups be entitled to recover actual ownership as a result of lawsuits that met criteria (e.g., ongoing and uninterrupted access to and use of the land) established by the High Court in its landmark Mabo Decision (1992), which, in part, had been based on provisions of the Racial Discrimination Act. The Government continued its commitment to promote intercultural understanding and to address better the needs of ethnic groups through a national multicultural agenda. People with Disabilities The Federal Disability Discrimination Act (1992) complements state laws prohibiting discrimination. It is administered by the Human Rights and Equal Opportunity Commission, a Commonwealth body whose first Disability Discrimination Commissioner was appointed in February. Federal officials are currently developing a national disability strategy based on the U.N. Standard Rules on the Equalization of Opportunities for Persons with Disabilities. Ensuring access to public buildings is required by the Disability Discrimination Act and, in part, is addressed in building codes. Australian authorities are investigating ways to improve compliance in practice. Section 6 Worker Rights a. The Right of Association Australian law and practice provide workers, including public servants, freedom of association both domestically and internationally. According to figures released by the Australian Bureau of Statistics (ABS) in 1993, 39.6 percent of the work force is unionized. Unions are closely aligned with the Australian Labor Party (ALP), and supply 60 percent of the voting delegates at ALP congresses. However, the Labor Government does not influence union policies, which are often at variance with its own, despite the fact that several key ministers were once trade union officials. In response to a November 1992 finding by the International Labor Organization (ILO) that the legal requirement for unions to have at least 10,000 workers in order to be registered under the federal system could "unduly influence workers' free choice of unions," the Government repealed this provision on December 16, 1993, with amendments (effective March 1994) to the Industrial Relations Act of 1988. Inter alia, these amendments extended enterprise bargaining to the nonunionized sector and created a labor court to adjudicate secondary boycott and good-faith bargaining questions. Australian workers enjoy the right to strike, which is well established in practice. This right had not been protected under domestic law. However, the Government included explicit recognition of the right to strike in the December 16, 1993, legislation. In general, industrial disputes are resolved through direct employer-union negotiations or under the auspices of the various state and federal industrial relations commissions whose mandates include compulsory conciliation and arbitration. According to ABS figures released on December 20, 1993, in the 12 months ending September 1993, there were 631 reported disputes involving 1,065,100 persons and 1,165,800 working days lost. The number of disputes is the lowest on record in a 12-month period since the ABS series was first compiled in December 1981, and represents a 50-year low according to other available statistics. On a proportional basis (working days lost per thousand employees), the coal mining industry experienced the greatest number of labor disputes. Overall, there were no significant strikes in 1993. b. The Right to Organize and Bargain Collectively Australian workers are granted the right, by law and in practice, to organize and bargain collectively, and to be represented in negotiating the prevention and settlement of disputes with employers. Workers are also protected by law and in practice from antiunion discrimination. The Government enhanced existing protection against unfair dismissal in its December 16, 1993, legislation, along lines specified in ILO guidelines. A pattern of centralized minimum wage awards and quasi-judicial arbitration, supplemented by industrywide or company-by-company collective bargaining, has generally prevailed since 1904, when the Commonwealth Conciliation and Arbitration Commission was established. The Industrial Relations Act of 1988 made technical changes in the system, creating a new Industrial Relations Commission which focuses more on its quasi-judicial dispute settlement role. At the same time, the Government has encouraged the spread of decentralized enterprise collective bargaining, in order to relate wage increases more to gains in productivity. In November 1992, the newly elected Conservative Government in the State of Victoria introduced a series of laws which, the International Confederation of Free Trade Unions alleged, forced 800,000 workers to sign individual employment contracts as opposed to collective agreements and outlawed almost all strikes and limited pickets. Following a strike and protest demonstrations, the Federal Government acted to incorporate most, if not all, of these workers under the federal Industrial Relations Law to protect their trade union rights. Export processing zones (EPZ's) do not exist in Australia. c. Prohibition of Forced or Compulsory Labor Although there are no laws regarding forced labor, Australia fully respects the ILO's conventions concerning forced labor, and forced labor is not practiced. d. Minimum Age for Employment of Children There is no federally mandated minimum age for employment, but state-imposed compulsory education requirements, monitored and enforced by state educational authorities, prevent children from joining the work force until they are 15 to 16 years old, except in individual cases involving administrative approval for absence from school because of reasons such as illness, disability, or family hardship. In addition, federal and state ministries of labor monitor and enforce a complicated network of legislation (which varies from state to state) governing such interrelated factors as minimum school-leaving age, minimum age to claim unemployment benefits, and minimum age to engage in specified occupations. e. Acceptable Conditions of Work Australia has long had a tradition that workers should be guaranteed a decent standard of living. The degree of wage comparability for women is one of the highest in the world, and pay equity was enacted in legislation passed on December 16, 1993. Although a formal minimum wage exists, it is not used. Instead, most workers are covered by differing minimum wage rates for individual trades and professions, as embodied in a comprehensive system of "awards" determined by the various quasi-judicial state and federal industrial relations commissions, after submissions by union, employer, and government representatives. In many cases involving individual business enterprises, the commissions approve wage rates previously negotiated and agreed upon by employers and unions. Where market conditions warrant, employees are often paid higher wages than those provided for in industrial awards ("over-award payments"). About 80 percent of wage and salary earners are covered by awards. The remaining 20 percent are mostly management-level employees or are self-employed. There are no trades whose awards are below the formal minimum wage. The lowest current federal award of about US$221 (A$328) per 38-hour week is for clothing workers. Combined with other regularly provided benefits and government entitlements for low-income families, this wage provides a decent standard of living for a worker and his family. Real monetary wages for the average worker declined over the past decade, but a comprehensive social welfare program maintained a social safety net under lower paid workers. The majority of workers are employees of incorporated organizations. For them, a complex body of federal and state regulations, as well as decisions of the corresponding industrial relations commissions, prescribes a 40-hour or shorter workweek, paid vacations, sick leave, and other benefits, including at least one 24-hour rest period. In a limited number of cases, workplace health and safety standards are also prescribed. Federal or State safety laws apply to every workplace. An intergovernmental body called the National Occupational Health and Safety Commission (also known as "Worksafe Australia") develops advisory standards and codes of practice which can be a basis for new laws. The Occupational Health and Safety (Commonwealth Employment) Act of 1991 gives a federal employee the legal right to cease work if he or she believes that particular work activities pose an immediate threat to health or safety. Most states and territories have laws that grant similar rights to their employees. At a minimum, private sector employees have recourse to state health and safety commissions, which will investigate complaints and enjoin remedial action as appropriate. Some states and territories also have legislation empowering trained private sector workers (in firms with more than 10 employees) to suspend any activity they deem unsafe. (###)
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