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U.S. Department of State Country Report on Human Rights Practices 1994 - Australia

Publisher United States Department of State
Publication Date 30 January 1995
Cite as United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1994 - Australia, 30 January 1995, available at: http://www.refworld.org/docid/3ae6aa392c.html [accessed 23 September 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
 

 

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 law, which respects and safeguards individual human rights.

A highly developed economy, which includes manufacturing, mining, agriculture, and services, provides most Australians with a high per capita income. A wide range of government programs offers assistance for the minority of relatively disadvantaged citizens.

Laws provide for basic human rights; the Government respects and enforces these laws.

The Government administers many programs to improve the socioeconomic conditions of Aboriginals and Torres Strait Islanders, who together form about 1.6 percent of the population, and to address 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

There were no reports of political killing.

The April 1991 report of the Royal Commission investigating the deaths of Aboriginals and Torres Strait Islanders in official custody stated that, although the deaths were not caused deliberately by police or prison officials, "in many cases death was contributed to by system failures or absence of due care." The Commission found that indigenous Australians died at approximately the same rate as others in prison, but it stressed that they were arrested at a rate 29 times that of whites (see also Section 1.c.).

In a report issued in June, the Australian Institute of Criminology stated that the number of Aboriginal deaths in custody remained at 8 in 1993--the same number recorded for 1992, and significantly fewer than that for 1991 (12). Further, the rate of deaths per 1,000 persons in custody in 1993 stayed significantly lower for Aboriginals than for others (i.e., this was the case for the second straight year). That represented a notable improvement over 1991 data which attested to a somewhat higher death rate among Aboriginal prisoners.

In terms of all prisoners, however, the Institute noted that the total number of deaths increased to 74 in 1993. This was the highest figure recorded since 1987 and contrasted with data for 1991 and 1992, in which the total number of deaths remained essentially constant (65 and 64, respectively).

b. Disappearance

There were no reports of political disappearances.

c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The law prohibits all such practices, and the authorities generally respect these prohibitions. However, the Royal Commission investigating the deaths of Aboriginals and Torres Strait Islanders in custody indicated it had found credible evidence that indigenous Australians had frequently been mistreated while in custody. It recommended several steps to reduce the number of arrests and improve the treatment of prisoners. During 1994 federal and state authorities continued to address the problem of deaths and mistreatment of indigenous Australians in custody by means of police reform, including improved detention procedures and training courses in Aboriginal culture.

d. Arbitrary Arrest, Detention, or Exile

The law prohibits arbitrary arrest and imprisonment. This prohibition is respected in practice.

e. Denial of Fair Public Trial

A well-developed system of federal and state courts, independent of the executive and legislative branches, ensures the right to fair trial. Both in law and in practice, defendants enjoy rights to due process, including the presumption of innocence, the right to confront witnesses, and the right of appeal. With regard to indigent defendants, all Australian states except New South Wales oblige persons charged with criminal offenses 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. Defendants who receive an unfavorable decision may appeal 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.

The Government provides legal counsel for all persons of Aboriginal or Torres Strait Islander descent. Defendants appearing before a defense force magistrate are likewise exempt from the merit test.

f. Arbitrary Interference with Privacy, Family, Home, or Correspondence

By law, the authorities may not conduct searches without a judicially issued warrant, and in practice they do not do so. The Government respects the privacy of family, home, and correspondence.

Section 2 Respect for Civil Liberties, Including:

a. Freedom of Speech and Press

A democratic political system, a highly professional judiciary, and diverse, vigorous, and independent news media combine to protect freedom of speech and press and full academic freedom. Australia does not have a bill of rights, and from time to time a few journalists have been subjected to court proceedings aimed at compelling them to reveal confidential sources. In 1994, however, there were no reports of such cases.

The Northern Territory and five of Australia's six states (all but Western Australia) prohibit public disrespect, e.g., verbal abuse directed toward police or other officials. Spokespersons for Aboriginal groups charge that these laws are enforced in a racially discriminatory manner.

b. Freedom of Peaceful Assembly and Association

Although not codified in law, citizens exercise these freedoms without government restriction.

c. Freedom of Religion

Australians have complete freedom of religion. A provision in the Constitution precludes the adoption of a state religion.

d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation

The Government imposes no restrictions on movement within or outside the country and respects the rights of emigration and repatriation.

The Government repatriates 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.

Representatives of the United Nations High Commissioner for Refugees have commended Australia for speeding up official processing of refugee claims, while recommending that the Government adopt a policy of administrative release into the community under appropriate safeguards. Parliament's Joint Standing Committee on Migration advanced a similar proposal on March 2, recommending standardized procedures that would permit release into the community of boat people detained for more than 6 months, those whose continued detention resulted from inaction or administrative error, and others who met specified conditions. The Government, however, rejects such proposals, arguing that all unauthorized entrants and their children should remain in detention until final disposition of requests for asylum or refuge, even though administrative appeals and lawsuits can take several 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 participate fully in Australia's political process, doing so as voters, members of political parties, and candidates for elected office.

Although no legal impediments exist to prevent women from holding public office, in practice, relatively few women are elected to public office (e.g., only about 14 percent of current Members of Parliament are women). In September, the Australian Labor Party (ALP) formally decided that, by the year 2000, women will be 35 percent of its nominees for "winnable seats." The Liberal Party has likewise declared it wishes to increase the number of female candidates, but it has not adopted a specific quota.

Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights

Nongovernmental human rights organizations operate freely, and the Government grants unimpeded access to all international groups investigating alleged human rights violations.

Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status

Women

In a July report on equality before the law, the Australian Law Reform Commission, a government-funded advisory body reporting to the Attorney General on possible law reforms, concluded that women face systemic discrimination within the legal system. The Commission found that discrimination against women permeates substantive law, judicial interpretation, and women's access to appropriate legal services. Although this reflects women's unequal social and economic status, the Commission believes that the legal system contributes to the inequality and tends to perpetuate and exacerbate it. The Commission recommended the immediate establishment of a national women's justice program in which the federal, state, and territorial governments would work together to address women's needs in the areas of legal representation, legal advice and referral, community legal education, development of the law, research and data collection, court processes, and facilities.

The Federal Sex Discrimination Act of 1984 prohibits discrimination on the basis of sex, marital status, or pregnancy. The Affirmative Action Act of 1986 also obliges employers to provide equal employment and equal promotion opportunities for female employees. The Department of Industrial Relations and the Sex Discrimination Commissioner receive complaints and attempt to resolve those that they find valid. They mainly do this by seeking to persuade employers to comply with the law, but can also decide to refer complaints to the Attorney General's Department and recommend legal action. Overall, enforcement is reasonably effective. Pay equity as a legal right went into force on March 30.

In an effort to end violence against women, the Government continued its community education campaign, begun in 1991 and operating under a 3-year budget of about $2.3 million. Social analysts and commentators estimate that domestic violence may affect as many as one Australian family in three or four. However, government officials stress that, because of underreporting and the lack of an agreed method for collecting statistics, it is impossible to provide an accurate national profile of the number of women who are victims of domestic violence. The Government is currently considering a national survey on violence against women in order to provide baseline data.

Children

The Australian Institute of Health and Welfare estimates 20,000 children are victims of child abuse or are at significant risk of abuse each year. This is somewhat less than 0.5 percent of persons under 17, but the president of the Australian Medical Association stresses that many cases of neglect and abuse are not reported. The six states and two territories investigate complaints of neglect or child abuse and institute practical measures aimed at protecting the child (e.g., placement in foster homes) when such complaints prove founded.

On June 30, Parliament enacted a law that prohibits sexual relations and other indecent acts with children on the part of Australians who are visiting other countries. Offenders, as well as organizers of travel for such purposes, may be prosecuted in Australia. The maximum penalty is 17 years' imprisonment. By year's end, no prosecutions under this law had taken place.

Indigenous People

The Racial Discrimination Act of 1975 prohibits discrimination on grounds of race, color, descent, or national or ethnic origin. In practice, however, the community services provided to Aboriginals and Torres Strait Islanders tend to be distinctly inferior, and Aboriginal spokespersons charge that police are less responsive to requests for law enforcement services which originate in Aboriginal rather than in other communities.

Even though Aboriginal Australians constitute about 1.6 percent of the population at large, Aboriginal prisoners exceed 15 percent of the overall total. In May Minister for Aboriginal and Torres Strait Islander Affairs Robert Tickner criticized the states' lack of action on various recommendations put forward by the 1991 report of the Royal Commission on deaths in custody. "Across Australia," Tickner said, "There has been an abject failure by state and territory governments to tackle this deplorable overrepresentation" of Aboriginals in prison. He called for a "radical reassessment" of criminal justice policies.

In much of Australia, the incidence of arrest of Aboriginals and Torres Strait Islanders for minor street crimes is disproportionately high. Public drunkenness remains a criminal offense in three states (Queensland, Victoria, and Tasmania), even though decriminalization was one of the 1991 Royal Commission's key recommendations. Drunkenness is no longer an offense in New South Wales. However, instead of being charged with drunkenness, disproportionate numbers of indigenous Australians are arrested for violating a provision of the state's criminal code which proscribes "conduct ... in an offensive manner in ... a public place." New South Wales is conducting small-scale trials of an alternative procedure that would not require arrests under such circumstances. In effect, a court summons that would resemble a traffic ticket would direct the offender to appear in court and answer charges on a specified date.

The states have established racial-sensitivity training programs for police officers, as well as advisory bodies and other outreach programs which seek to improve police relations with Aboriginal communities. In spite of notable and praiseworthy improvements in particular localities, there is no evidence to suggest that current approaches have been effective in reducing arrests nationwide.

Because Aboriginals are the most disadvantaged group in relation to education, housing, health, and employment (unemployment is three times the national average), 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 indigenous Australians. The Aboriginal and Torres Strait Islander Commission gives indigenous Australians control over many government programs intended for their benefit. The Council for Aboriginal Reconciliation is coordinating a 10-year program to promote better understanding between indigenous Australians and others.

Aboriginal spokespersons generally support federal and state programs but often describe them as underfunded. They note that much of the underlying problem of racial discrimination stems from deeply rooted personal attitudes and views and express doubt that government programs will produce notable results in the short run. In addition, they question whether federal and state police authorities have shown sufficient diligence and energy in pursuing police reform.

Most Aboriginals and Torres Strait Islanders welcomed landmark legislation (December 1993) which established federal tribunals to adjudicate claims to land ownership by groups of indigenous Australians who can demonstrate active association and uninterrupted use (native title). But most indigenous Australians cannot meet this test, and Parliament is considering draft legislation that would establish a national trust fund to purchase land for them.

People with Disabilities

The Disability Discrimination Commissioner, a member of the Human Rights and Equal Opportunity Commission, promotes compliance with federal law prohibiting discrimination against the disabled. The Commissioner also promotes more energetic implementation and enforcement of state laws that require equal access and otherwise protect the rights of disabled persons.

Section 6 Worker Rights

a. The Right of Association

Australian law and practice provide workers, including public servants, freedom of association domestically and internationally. Approximately 40 percent of the work force is unionized.

Unions carry out their internal functions free of government or political control, but most local affiliates belong to the state's branch of the ALP. Union members must make up at least 60 percent of the delegates to ALP congresses, but unions do not participate or vote as a bloc.

There are no restrictions on the right to strike. Legislation which went into force on March 30 for the first time legalized what had long been a de facto right to strike.

Laws and regulations prohibit retribution against strikers and labor leaders, and they are effectively enforced. In practice, employers tend to avoid legal remedies (e.g., secondary boycott injunctions) available to them in order to preserve long-term relationships with their unions.

Since 1992 the Federal Government has used its adherence to International Labor Organization (ILO) conventions to override state objections to new labor relations legislation. Major provisions (right to strike, parental leave, pay equity, minimum wage, and protection from unfair dismissals and hiring discrimination) of the 1994 legislation referred to above were deliberately based on ILO conventions and recommendations, as well as on broader U.N. conventions and covenants.

However, the official employers' representative to the ILO, the Australian Chamber of Commerce and Industry, formally complained to the ILO Committee on Freedom of Association in June that the new legislation actually restricts employers from bargaining freely with their employees without impediment because it contains vestiges of the old system, namely compulsory arbitration and centralized wage-fixing. The ILO has not yet issued a ruling on this complaint.

Unions may freely form and join federations or confederations, and they actively participate in international bodies.

b. The Right to Organize and Bargain Collectively

Australian law and practice give workers the right to organize and bargain collectively, and they protect them from antiunion discrimination.

Officials administer centralized, minimum wage awards and provide quasi-judicial arbitration, supplemented by industrywide or company-by-company collective bargaining.

The Government's 1994 legislation aimed to facilitate decentralized collective bargaining, keyed to individual enterprises, in order to relate wage increases more directly to gains in productivity. Workers can trade fringe benefits for greater wage increases, but must register their agreement with the Australian Industrial Relations Commission, which insures that they suffer no net disadvantage. The legislation also created an industrial relations court to adjudicate disputes, especially the failure to bargain in good faith, arising from the increased use of enterprise-level bargaining.

Export processing zones do not exist.

c. Prohibition of Forced or Compulsory Labor

Although there are no laws prohibiting it, forced labor is not practiced in Australia.

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, effectively prevent most children from joining the work force until they are 15 or 16 years of age. Federal and state governments monitor and enforce a network of laws, which vary from state to state, governing minimum school-leaving age, minimum age to claim unemployment benefits, and minimum age to engage in specified occupations.

e. Acceptable Conditions of Work

Although a formal minimum wage exists, it has not been relevant in wage setting since the 1960's. Instead, 80 percent of workers are covered by differing minimum wage rates for individual trades and professions, all of which are sufficient to provide a decent standard of living for a worker and his family. However, cottage industry work has grown recently, especially in the clothing industry. These workers, working at home and paid by piecework, commonly earn less than $1.50 (A$2.00) hourly, not enough to maintain decent living standards. The ALP, at its September 1994 Congress, noted that such workers are almost always women (frequently immigrants); it urged the Government to investigate this phenomenon and afford such workers the wide range of protections and entitlements found in the formal labor market.

Most workers are employees of incorporated organizations. For them, a complex body of government regulations, as well as decisions of the applicable federal or state industrial relations commission, prescribe a 40-hour or shorter workweek, paid vacations, sick leave, and other benefits, including at least one 24-hour rest period per week.

Federal or state safety laws apply to every workplace. 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 individual 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 demand remedial action.

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