The Federal Justice Ministry oversees Australian Federal Police (AFP) activities, while the state police forces report to the respective state police ministers. The civilian authorities maintained effective control over the security forces. There were occasional reports that police committed human rights abuses.
The country has a mixed, highly developed market-based economy. Its population was approximately 20 million as of December. Per capita GDP growth was 2.5 percent for the 12-month period ending September 30. Wages and benefits generally kept pace with inflation. The downturn of the global economy had a limited effect on the country's economy. A wide range of government programs offered assistance for disadvantaged citizens.
The Government generally respected the human rights of its citizens, and the law and judiciary provide effective means of addressing individual instances of abuse; however, there were problems in some areas. There were occasional reports that police and prison officials abused persons in custody. Human rights organizations, refugee advocacy groups, and opposition politicians continued to express concern about the impact of prolonged mandatory detention on the health and psychological well-being of asylum seekers. Societal violence and discrimination against women, and discrimination against Aboriginal people also were problems. Some leaders in the ethnic and immigrant communities and opposition political party members expressed continued concern about instances of vilification of immigrants and minorities. There was ongoing criticism of the 1996 Federal Workplace Relations Act by domestic labor unions and the International Labor Organization (ILO), particularly in regard to the law's restrictions on multi-enterprise agency bargaining and its emphasis on individual employment contracts. There was some trafficking in women, which the Government was taking steps to address.
RESPECT FOR HUMAN RIGHTS
There were no reports of the arbitrary or unlawful deprivation of life committed by the Government or its agents. However, the Australian Institute of Criminology (AIC), an agency of the Attorney General's Department, reported that in 2002, 19 persons died in police custody or in the process of arrest, 12 fewer than in 2001. Police fatally shot three persons; all three shootings were found to be justifiable homicides. In the remaining cases, seven deaths were attributed to accidents, seven to self-inflicted injuries, and two to natural causes. Of the six Aboriginal deaths in police custody, three resulted from accidents, one from natural causes, and two from self-inflicted injuries. In November, after a 17-year-old youth fell to his death from a moving police van, the Western Australian (W.A.) Coroner criticized the state's police force for failing to properly secure the van door.
During the year, a W.A. independent commission inquired into police corruption and criminal conduct, including the unresolved death in police custody of an 18-year-old nonindigenous youth in 1988; Amnesty International (AI) had called for an investigation of the death. At year's end, the W.A. Government had not released its report.
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits all such practices; however, there were occasional reports that police and prison officials mistreated suspects in custody. Some indigenous groups charged that police harassment of indigenous persons was pervasive and that racial discrimination among police and prison custodians persisted.
During the year, a W.A. police officer was disciplined for using excessive force in the arrest of a homeless man in 2002. In December, a Victoria court awarded a man $46,000 (A70,000) in compensation for a Victoria police officer's use of excessive force and false imprisonment during a 1996 drug raid.
Prison conditions generally met international standards, and the Government permitted visits by independent human rights observers. Each state and territory is responsible for managing its own prisons, which also house federal prisoners. There are no federal prisons. Although Aboriginals constituted less than 3 percent of the population, they accounted for 20 percent of the prisoner population during the year (see Section 5).
In prisons, men and women were held separately; conditions were the same for both. Detainees held without bail pending trial generally were segregated from the rest of the prison population. Juvenile offenders under age 17 were incarcerated in youth detention or training centers, but could be remanded and sentenced to custody in an adult prison upon being convicted of a serious criminal offense such as homicide. In immigration detention facilities, children were held with adults, most often family members (see Section 2.d.).
According to the AIC's annual report on prison deaths, 50 persons died in prison custody in 2002. The cause of death was not identified in four cases. Of the remainder, 14 deaths were attributed to suicide by hanging, 23 to natural causes, 5 to multiple injuries, 2 to drug overdoses, and 2 to gunshot wounds. Of the eight Aboriginal deaths in prison custody during 2002, six resulted from natural causes, one from an accident, and one from self-inflicted injuries. Three deaths were categorized as "unlawful homicides" (murder or manslaughter); however, the report did not distinguish between prisoner-instigated and guard-instigated manslaughter. Three Queensland prison guards were suspended following an investigation into the death of a prisoner at a Brisbane jail in October. One of the guards allegedly failed to monitor the prison's closed circuit television, which recorded a fight between inmates that led to the prisoner's death.
In 2002, hunger strikes, protests, and arson occurred at immigration detention facilities over allegedly poor sanitary conditions, inadequate access to telephones, limited recreational opportunities, decisions to deny refugee status, and delays in processing final appeals of asylum claims. The Government took some actions to improve detention conditions, including the addition of life-skills classes and vocational training, and increased recreational facilities. In May, the Government closed the heavily-criticized Woomera detention center and moved the detainees to the new Baxter detention center near Port Augusta in South Australia (see Sections 2.d. and 4).
d. Arbitrary Arrest, Detention, or Exile
The law prohibits arbitrary arrest and detention, and the Government generally observed these prohibitions.
Each of the country's six state and two territorial jurisdictions has a separate police force, which enforces state and territorial laws. The Federal Police enforces Commonwealth laws. The police forces generally did not have problems with corruption and impunity. State and territorial police forces have internal affairs units that investigate allegations of misconduct and a civilian ombudsman's office that either can review an investigation upon request of the complainant or initiate its own inquiry into a complaint.
Police officers may seek an arrest warrant from a magistrate when a suspect cannot be located or fails to appear; however, they may also arrest a person without a warrant if there are reasonable grounds to believe the person has committed an offense. Police must inform arrested persons immediately of their legal rights and the grounds of their arrest. The arrested person must be brought before a magistrate for a bail hearing at the next sitting of the court. Bail generally is available to persons facing criminal charges unless the person is considered to be a flight risk or is charged with an offense carrying a penalty of 12 months' imprisonment or more. Attorneys and families were granted prompt access to detainees.
In its March 2001 report, the Federal Human Rights and Equal Opportunity Commission (HREOC) asserted that as many as 70 permanent residents convicted of crimes, most with Vietnamese nationality, had completed their prison terms but were still in custody pending deportation. By year's end, all but four of the detained persons had returned to Vietnam, following the 2001 conclusion of a bilateral agreement allowing their return. Of the remaining four, one remained in detention pending further litigation, one had escaped from detention and remained at large, and two were released by court order.
In April, the Federal Court of Australia ruled that continued detention of asylum seekers when there was no real likelihood of the detainee being removed was unlawful; the Government's appeal of the decision was pending at year's end (see Section 2.d.).
Neither the Constitution nor the law addresses exile; however, the Government did not use it.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary, and the Government generally respected this provision in practice.
The court system is divided into federal, state, and territorial courts, which handle both civil and criminal matters. The highest federal court is the High Court, which exercises general appellate jurisdiction and advises on constitutional issues. State and territorial supreme, district, and county courts conduct most high-value civil and serious criminal trials, while the magistrate's and specialist's courts (such as the children's court and administrative tribunals) adjudicate lower level criminal and lesser value civil cases, and conduct preliminary hearings.
The law provides for the right to a fair trial, and an independent judiciary generally enforced this right. In the state district or county courts and the state or territorial supreme courts, there generally is a judge and jury. The judge conducts the trial, and the jury decides on the facts and on a verdict. Defendants have the right to an attorney, and a government-funded system of legal aid attorneys is available to persons with low incomes. The defendant's attorney can question witnesses, present evidence on the defendant's behalf, and access relevant government-held evidence. Defendants enjoy the presumption of innocence and have the right to appeal the court's decision or the sentence imposed.
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law prohibits such actions, and the Government generally respected these prohibitions in practice.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The law provides for freedom of speech and of the press, and the Government generally respected these rights in practice. An independent press, an effective judiciary, and a functioning democratic political system combined to ensure freedom of speech and of the press, including academic freedom. The Government did not restrict access to the Internet.
b. Freedom of Peaceful Assembly and Association
While the right to peaceful assembly is not codified in law, citizens exercised it without government restriction. In March, 14 students were arrested following a violent antiwar demonstration by approximately 2,000 students in Sydney. Police used reasonable force to contain the crowd violence.
There is no explicit right to freedom of association; however, the Government generally respected this right in practice.
c. Freedom of Religion
The law provides for freedom of religion, and the Government generally respected this right in practice.
In October, a state administrative tribunal hearing began on a civil complaint filed by the Islamic Council of Victoria (ICV), under Victoria's Racial and Religious Tolerance Act of 2001, against two persons associated with Catch the Fire, a Christian group. The ICV alleged that speakers at a 2002 seminar on Islam sponsored by Catch the Fire vilified Muslims, and sought an apology, a retraction of the comments in question, and compensation. Lawyers for the defendants argued that the complaint was outside the tribunal's jurisdiction, asserting that the Victoria act infringed on the federal right of freedom of expression. The judge rejected the defendant's request to have the matter referred to a higher court; the case still was pending at year's end.
For a more detailed discussion, see the 2003 International Religious Freedom Report.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The law provides for these rights, and the Government generally respected them in practice.
The law provides for the granting of refugee status or asylum to persons who meet the definition in the 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol, subject to certain geographic and time constraints on claims by those who previously sought asylum in a safe country of transit. In practice, the Government provided protection against refoulement and granted refugee status or asylum. The Government cooperated with the office of the U.N. High Commissioner for Refugees (UNHCR) and other humanitarian organizations in assisting refugees.
Federal immigration officials adjudicate refugee status claims based on UNHCR standards. In the 12-month period ending June 30, the Government granted 12,525 humanitarian class visas, which included an offshore resettlement component of 11,656 visas and an onshore component of 869 visas. The program's offshore component was made up of 4,376 refugees (including 504 grants to women found to be at risk in overseas refugee camps and 311 refugees that were resettled from offshore detention facilities) and 7,280 special humanitarian grantees. Special humanitarian grantees were displaced persons subjected to gross violations of human rights, and whose applications were supported by residents or organizations based in the country. Of the total number of offshore grants, 47 percent came from Africa, 37 percent from the Middle East and Southwest Asia, 10 percent from Europe, and 6 percent from other regions.
Noncitizens arriving at a national border without prior entry authorization automatically are detained. Legal assistance is provided upon request to detainees making an initial asylum claim or application for lawful residence. Individuals may be released pending full adjudication of their asylum claim only if they meet certain criteria such as old age, ill health, or experience of torture or other trauma. However, most did not meet release criteria and were detained for the length of the asylum adjudication process. At year's end, the Federal Government oversaw six immigration detention facilities located within the country. During the year, asylum seekers intercepted at sea also were housed in offshore detention centers, administered by the International Organization for Migration (IOM) with funding from the Government, in Nauru and on Manus Island in Papua New Guinea. In November, the Government established an alternative residential housing detention facility for married women and minors to be near their spouses in the Baxter detention center in Port Augusta.
In 2001, in response to an influx of boats carrying asylum seekers, Parliament changed the law to remove retroactively the right of any noncitizen to apply for a permanent protection visa (i.e., the right to live and work permanently in the country as a refugee) if that person's entry was unlawful and occurred in one of several "excised" territories along the country's northern arc: Christmas Island, Ashmore and Cartier Islands, the Cocos Islands, and any sea or resource installation designated by the Government. Following the November arrival on Melville Island of a boat carrying 14 Kurdish asylum seekers, the Government retrospectively excised almost 4,000 islands across the northern arc from the migration zone, thereby preventing persons arriving on them from making a valid application for protection. Later that month, Parliament nullified the excision order, but the Government would not accept that the Kurdish asylum seekers had made a valid application for protection because the excision order was valid at the time of their arrival. The asylum seekers returned to Indonesia, where the IOM assisted eight of them to apply to the UNHCR for protection; the other six asked to return home.
Noncitizens who arrive by boat and have their asylum claims confirmed are granted a 3-year temporary protection visa (TPV). The TPV provides full access to medical and social services but does not authorize family reunification or allow travel abroad with reentry rights. A permanent protection visa, which gives authority for family reunification and reentry rights, may be granted to an applicant at any stage of the asylum adjudication process. During the year, the Government extended the application of TPVs to all asylum seekers who applied for protection while onshore regardless of whether they entered legally. Denials of asylum claims may be appealed on merit grounds to the Refugee Review Tribunal, and on grounds of legal error to the Federal Court of Australia and, in certain cases, to the High Court. The Minister for Immigration and Multicultural and Indigenous Affairs may exercise his discretion and grant a visa after the asylum seeker has exhausted the review process.
Long delays in processing asylum applications were not a significant problem during the year, due to a decline in the number of asylum seekers arriving by boat since the Government implemented its offshore processing policy in 2001. However, a number of asylum seekers have been detained for years pending review and appeal of their claims. Of these, a small number remained in detention despite having exhausted the appeal process; they could not be returned to their home country because they lacked travel documents or could not obtain necessary transit visas. In April, the Federal Court of Australia ruled that continued detention of asylum seekers when there was no real likelihood of the detainee being removed was unlawful. In November, the High Court began hearing a government appeal of the Federal Court's decision; the appeal remained pending at year's end.
As of December, onshore detention facilities, excluding Christmas Island, held 918 detainees. At that point, the offshore detention facility in Nauru held approximately 300 detainees, most of whom had been denied refugee status and were awaiting repatriation. The Government was in the process of resettling those detainees granted refugee status. In November, the Federal Court began hearing an application to transfer the sole remaining occupant of the Manus Island center to another detention facility on humanitarian grounds.
The country's immigration laws and detention policy continued to be criticized by human rights and refugee advocacy groups, who charged that the sometimes lengthy detentions violated the human rights of asylum seekers. In November and December, detainees at W.A.'s Port Hedland detention center rioted over the length of time they had been in detention. In October, the Federal Human Rights Commissioner, who had monitored detention center conditions over the previous 5 years, stated that the Government's treatment of the detainees was harsh with respect to their length of time in detention; that immigration officials showed a lack of interest in improving the detainees' situation; and that human rights abuses had occurred during riots at the detention centers in 2001. The Government rejected this criticism.
In 2002, both the High Commissioner for Human Rights Special Envoy to Australia and the U.N. Working Group on Arbitrary Detention (WGAD) investigated conditions in the detention centers and expressed concerns about the psychological impact that prolonged detention was having on asylum seekers, in particular children, unaccompanied minors, the elderly, and those with disabilities. The Government rejected this criticism, but implemented improvements to facilities and services (see Section 1.d.).
As of December, 69 children were held in immigration detention centers, excluding Christmas Island and Nauru. Throughout 2002 and during the year, HREOC inquired into the situation of children in immigration detention, but had not published a final report by year's end. In June, the Federal Family Court ruled that its welfare jurisdiction extended to children in detention and that the indefinite detention of children was unlawful. In August, the Court ordered that five Pakistani children be released from their 32-month detention into the care of a charitable welfare group. In October, the High Court heard the Government's appeal of these decisions; the court's decision was pending at year's end. In September, Parliament passed a law preventing the courts from issuing interim orders for the release of detainees who are of "bad character" or pose a security risk, pending the final determination of their refugee claim.
There were no reports of the forced return of persons to countries where they feared persecution, before their asylum claims were considered and rejected. However, during the year, refugee, church and human rights groups expressed concern about the Government's practices in repatriating unsuccessful asylum seekers. In May, Human Rights Watch asserted that information on human rights conditions in Afghanistan disseminated by the Government to asylum seekers from that country was incomplete and misleading. The Government rejected this criticism as unfounded, stating that the information was a factual report of events in Afghanistan for asylum seekers' general information and was not put forth as a comprehensive account of that country's situation.
The Government has agreements with a number of countries under which unsuccessful asylum claimants may be returned involuntarily to their home countries. Following concerns raised by AI early in the year about the possibility of unsuccessful Iranian asylum seekers in onshore detention centers being returned involuntarily to Iran, a November press report carried claims that a male Iranian asylum seeker who was removed from the country in August had been arrested and tortured after arrival in Iran. In December, the High Court rejected an unsuccessful Iranian asylum seeker's request for a court order prohibiting the involuntary return of unsuccessful Iranian asylum seekers. In October, a church human rights group asserted to a parliamentary inquiry committee that many unsuccessful asylum seekers had disappeared or died following their return to their home country; the cases cited included both voluntary and involuntary returnees. The inquiry committee had not issued its report by year's end.
Section 3 Political Rights: The Right of Citizens to Change Their Government
The Constitution provides citizens with the right to change their government peacefully, and citizens exercised this right in practice through periodic, free, and fair elections held on the basis of universal suffrage and mandatory voting. In November 2001, citizens elected a coalition of the Liberal Party and the National Party to a third 3-year term of office. The Australian Labor Party (ALP) won all seven state and territorial elections held in 2001 and 2002 and was reelected to government in New South Wales (N.S.W.) during the year; at year's end, the ALP controlled all eight state and territorial legislatures.
There are no legal impediments to public office for women and indigenous people. Both the Government and the opposition have declared their intent to increase the numbers of women elected to public office. As of November, there were 60 female members in the 226-seat Federal Parliament, 2 female Ministers in the 17-member Federal Government Cabinet, and 5 female ministers in the 30-member Federal Government Ministry. There was one woman among the eight Premiers and Chief Ministers of the six States and two Territories, the Chief Minister of the Northern Territory (N.T.).
Aboriginals generally were underrepresented among the political leadership (see Section 5). One Aboriginal was elected to the Federal Senate in 1998. In 2001, an Aboriginal woman was elected to the West Australian state parliament (the first indigenous woman to be elected to a state legislature), and four Aboriginals, including a woman, were elected to the N.T. legislative assembly. In 2002, an Aboriginal woman was elected to the Tasmanian state parliament, and another was elected to the N.S.W. state parliament.
Section 4 Governmental Attitude on Investigations of Human Rights Violations
A wide variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. The Government in general cooperated with human rights groups.
The government-funded but independent HREOC investigates complaints of discrimination or breaches of human rights under the federal laws that implement the country's human rights treaty obligations. HREOC resolves complaints in relation to employment, provision of goods and services, access to accommodation, and inciting racial hatred. Each state and territory has its own antidiscrimination board or equal opportunity commission that also resolves complaints of discrimination. In the 12 months ending June 30, the number of discrimination complaints received by HREOC fell to 1,236, a decrease of approximately 3 percent from the 1,271 complaints received in the previous 12-month period. Approximately 56 percent of all cases were not accepted, either because they did not fall within HREOC's mandate or because no discrimination was shown. Another 32 percent were resolved through conciliation, and 11 percent were withdrawn before action could be taken.
In 2002, the Government granted access to its immigration detention centers to domestic and international human rights organizations, including HREOC, the U.N. High Commissioner for Human Rights Special Envoy, and WGAD (see Section 2.d.). However, the Government rejected both the Special Envoy's and WGAD's criticism of detention center conditions, asserting that their reports misrepresented government policy, contained many inaccuracies, and commented on issues well beyond the scope of their mandates. The Government also rejected HREOC's recommendation that the Government set a time limit on detention periods. However, during the year, the Government closed the most heavily criticized detention center, Woomera (see Section 1.d.); reviewed immigration detention standards; and awarded the contract to deliver detention services to a different company.
In 2002, the U.N. Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and All Forms of Discrimination reported that despite efforts by the authorities, much remained to be done to eradicate the legacy of racial discrimination and reduce the social inequalities and extreme poverty that affected the majority of Aboriginals. The Government rejected the Special Rapporteur's three key recommendations, namely, that it provide a fresh impetus for reconciliation, negotiate with Aboriginal representatives for the removal of the discriminatory aspects of the 1998 Native Title Act amendments, and address the needs of the "stolen generation" of Aboriginals (see Section 5).
Section 5 Discrimination Based on Race, Sex, Disability, Language, or Social Status
The law prohibits discrimination based on these factors. An independent judiciary and a network of federal, state and territorial equal opportunity offices effectively enforced the law. In December, the N.S.W. Government released a study of violence against homosexuals that found more than half of the survey participants had experienced one or more forms of abuse, harassment, or violence in the past 12 months. The report found that two or more persons who were unknown to the victim perpetrated most incidents of harassment or violence and that homosexuals of Middle Eastern background suffered exclusion, assaults, and stalking from family or community members.
Federal and various state laws prohibit discrimination on the grounds of HIV positive status. In the 12 months ending June 30, nine persons with HIV lodged discrimination complaints with the Federal Disability Discrimination Commissioner, which is part of HREOC. In 2002, a La Trobe University study of HIV positive persons found that 37.7 percent received less favorable access to health services, while 22.1 percent and 11.1 percent received less favorable treatment regarding insurance and accommodation respectively.
The law prohibits violence against women, including spousal rape and abuse; however, violence against women remained a problem. In 2002, there were 17,850 victims of sexual assault recorded by the police. According to the ABS, sexual assaults increased nearly 6 percent compared with 2001; the victims in 80 percent of the cases were female. In 2002, the sexual assault victimization rate was 91 per 100,000 persons, the highest number since statistics first were recorded in 1993. Domestic violence was particularly prevalent among Aboriginal communities.
All states and territories except W.A. have enacted legislation making it a crime to perform female genital mutilation (FGM) or to remove a child from the jurisdiction for the purpose of having FGM performed; maximum penalties range from 7 to 21 years' imprisonment. The N.S.W. women's minister revealed that 40 women had been treated for the effects of female genital mutilation in the 12 months ending November 30. There were no reports of prosecutions for the offense during the year.
Prostitution is legal or decriminalized in several states and territories, and the governments of Victoria, Queensland and the Australian Capital Territory license brothels operating within their borders. However, many brothels operated illegally. In some locations, state-funded sexual health services employees visited brothels to educate workers about sexual health matters and to prevent worker mistreatment. Local governments or prostitution licensing authorities inspected brothels to assure compliance with planning laws and licensing requirements, including health and safety regulations. However, government officials faced difficulties enforcing health and safety standards in illegal brothels. Trafficking in women, primarily from Asia, for prostitution was a limited problem (see Section 6.f.).
The Sex Discrimination Act prohibits sexual harassment. The independent Federal Sex Discrimination Commissioner, which is part of HREOC, undertakes research, policy, and educative work designed to eliminate discrimination between men and women. In 2002, the Commissioner published a report recommending that the Government establish a government-funded 14-week paid maternity leave. Although the proposal gained the support of the union movement and many women's organizations, the Government did not act on it during the year. According to the HREOC 2002-03 annual report, sex discrimination complaints fell by 5 percent during this reporting period compared with the previous reporting period. Of the 380 new cases filed during the reporting year, women filed 87 percent, and 87 percent were employment related.
The Office of the Status of Women (OSW) monitors women's rights and advises the Federal Government on issues affecting women. In 2001, the Federal Government committed funding of $10.8 million (A16.5 million) for a National Initiative to Combat Sexual Assault, which the OSW developed. In 2002, the OSW commissioned separate projects by the ABS and the AIC to identify gaps in data on sexual assaults and to evaluate the incidence of underreporting of sexual assaults. There are highly organized and effective private and public women's rights organizations at the federal, state, and local levels.
Women have equal status under the law, and the law provides for pay equity. In June, the ABS estimated that women's full-time total average weekly earnings were 81 percent of men's. Union leaders and members of opposition political parties attributed the differences between men's and women's earnings to changes in workplace laws, such as the 1996 Workplace Relations Act (WRA). The WRA encourages the use of individual contracts rather than collective agreements, which makes it more difficult for women to negotiate salaries equal to those of their male counterparts.
The Government demonstrated its strong commitment to children's rights and welfare through its publicly funded systems of education and medical care. While the structure of education varied among states and territories, all children between 6 and 15 years of age are entitled to 9 to 10 years of compulsory, free, and universal education. The ABS found in a 2002 survey that the full-time school participation rate for 15-year-olds was 92.5 percent. The Government provides universal health insurance coverage to all citizens and lawful residents from birth on a copayment basis. The Government also provides a minimum benefit of 16.8 percent of the cost of a first child's childcare to all parents (with a smaller benefit for additional children), which increases to as much as 100 percent for the lowest income families.
State and territorial child protection agencies investigate and institute prosecutions of persons for child neglect or abuse. The Federal Government's role in child abuse prevention is limited to funding research and education campaigns, developing a national plan of action against the commercial exploitation of children, and funding community-based parenting programs. According to the Federal Department of Family and Community Services, the number of substantiated cases of child abuse and neglect grew approximately 43 percent from 1992 to 2002. During the year, the Queensland Crime and Misconduct Commission (CMC) inquired into allegations of mismanagement within the state childrens' services department and neglect of foster children placed by the department. At year's end, the CMC had not yet released its report. In November, the N.T. government outlawed the legal defense of Aboriginal traditional marriage when an Aboriginal man has sexual intercourse with a girl under age 16.
The Government has enacted tough criminal laws aimed at restricting the trade in, and possession of, child pornography; the law allows suspected pedophiles to be tried in the country regardless of where the crime was committed. The 1994 Child Sex Tourism Act prohibits child sex tourism and related offenses for its residents and its citizens overseas. Since 1994, 19 citizens have been charged with offences related to child sex tourism overseas, resulting in 8 convictions and 1 acquittal; 1 person died prior to the completion of the investigation, 1 charge was withdrawn, and 8 cases were ongoing at year's end. Within the country, 16 persons have been charged under the act; as of December 1, there were 12 convictions, 3 dismissals, and 1 ongoing case. Child protection NGOs played an ongoing role in raising community awareness of child trafficking. There were no reports of children being trafficked into the country during the year (see section 6.f.).
The practice of parents unlawfully sterilizing children with disabilities was a continuing problem. The High Court has determined that physicians who sterilized a child without authorization from the Federal Family Court would be subject to criminal and civil action. In 2002, a report into the sterilization of girls and young women with disabilities, commissioned by the federal Sex Discrimination Commissioner, found that the official data was unreliable and that anecdotal evidence suggested that girls continued to be sterilized in numbers that far exceeded the number of lawful authorizations.
In 2002, HREOC undertook a national inquiry into children in immigration detention, but its final report had not been published by year's end (see Section 2.d.). In June, the Federal Family Court ruled that the indefinite detention of children was unlawful; the Government appealed the decision (see Section 2.d.).
Persons with Disabilities
Legislation prohibits discrimination against persons with disabilities in employment, education, or other state services. The Disability Discrimination Commissioner, which is part of HREOC, promotes compliance with federal laws that prohibit discrimination against persons with disabilities. The Commissioner also promotes implementation and enforcement of state laws that require equal access and otherwise protect the rights of persons with disabilities.
The law makes it illegal to discriminate against a person on the grounds of disability in employment, education, provision of goods, services and facilities, access to premises, and other areas. The law also provides for mediation of discrimination complaints by HREOC, authorizes fines against violators, and awards damages to victims of discrimination.
The 2002-03 HREOC report stated that 493 disability complaints were filed during the 2002-03 reporting year, including 169 complaints of discrimination based on physical disability, 88 complaints of discrimination based on psychiatric disability, and 25 complaints based on learning disabilities. Of these, 53 percent were employment related, and 24 percent concerned the provision of goods and services. The complaints covered a 12-month period.
The law prohibits discrimination on grounds of race, color, descent, or national or ethnic origin.
Aboriginals and Torres Strait Islanders can participate in government decision-making that affects them through the Aboriginal and Torres Straits Islander Commission (ATSIC). In 2002, indigenous people elected 380 representatives to 35 regional councils and the Torres Strait Regional Authority in triennial elections. These representatives in turn chose the 18 commissioners who made up the ATSIC Board. The 2002 election had the highest voter participation since elections were first held in 1990.
In 2002, in response to continued claims of corrupt dealings by ATSIC board members, the Government initiated a review of ATSIC's functions and operations. In November, the review body issued its final report, which recommended replacing the 18-member ATSIC board with a 10-member ATSIC national executive body, with 8 members elected from among the chairs of 35 regional councils and 2 government-appointed members. The review also recommended that the Government restore ATSIC's discretionary funding powers, which were removed in April when the Government created a separate agency called the Aboriginal and Torres Strait Islander Services (ATSIS). The Government also reviewed allegations against ATSIC's Chairman and Deputy Chairman. As a result, faced with several allegations of improper behavior, ATSIC's Deputy Chairman, Ray Robinson, resigned in July, and the Minister for Indigenous Affairs suspended Chairman Geoff Clark in August. The Commission elected ATSIC Regional Councilor Lionel Quartermaine as Acting Chairman; at year's end, the Minister of Indigenous Affairs was considering Clark's request for reinstatement.
The Government's approach toward Aboriginals emphasized a "practical reconciliation" aimed at raising the health, education, and living standards of indigenous people. DIMIA, in conjunction with ATSIC and ATSIS, has the main responsibility for government efforts to improve the quality of life of indigenous people. A wide variety of government initiatives and programs sought to improve all aspects of Aboriginal and Torres Straits Islander life. In 2002-03, the Government spent approximately $1.55 billion (A2.36 billion) on indigenous-specific programs in areas such as health, housing, education, and employment. This represented a 1 percent increase in Government funding for indigenous programs compared with the previous 12 months. However, indigenous citizens continued to experience significantly higher rates of imprisonment, inferior access to medical and educational institutions, greatly reduced life expectancy rates, elevated levels of unemployment, and general discrimination, which contributed to a feeling of powerlessness. Poverty and below-average educational achievement levels contributed significantly to Aboriginal underrepresentation in national, territorial, and state political leadership (see Section 3).
According to a joint ABS and Australian Institute of Health and Welfare study released during the year, the life expectancy of an indigenous person remained 20 years less than that of a nonindigenous person, and the indigenous infant mortality rate was 2.5 times the rates found in nonindigenous populations. In 2001, notification rates of tuberculosis and hepatitis A and B rates among indigenous people were, respectively, 3.7 times greater, 4.3 times greater, and 3.6 times greater than rates among the nonindigenous. According to the Department of Family and Community Services, indigenous youth were 2.5 times more likely than nonindigenous youth to leave school before graduation. The ATSIC 2002-03 annual report highlighted findings in a 2001 report that 37 percent of indigenous students did not achieve a grade 5 mathematical competency benchmark and 33 percent of indigenous students in grade 5 were below the national reading benchmark, compared with 10 percent of the nonindigenous population against both markers. The ATSIC report also noted that poor access to labor markets in remote areas contributed to the high indigenous unemployment rate, which was 20 percent in 2001, almost 3 times greater than the nonindigenous unemployment rate. Unemployment rose to over 34 percent when indigenous persons given employment as part of government-assisted employment programs were included.
Although Aboriginal adults represented only 2.2 percent of the adult population, according to the ABS they accounted for approximately 20 percent of the total prison population and were imprisoned at 15 times the rate of nonindigenous persons as of June 2002. The indigenous incarceration rate was 1,829 per 100,000 adult population, in contrast to a nonindigenous rate of 121 per 100,000. Over 45 percent of Aboriginal men between the ages of 20 and 30 years had been arrested at some time in their lives. In 2001, Aboriginal juveniles accounted for 55 percent of those between the ages of 10 to 17 in juvenile correctional institutions. Human rights observers noted that socioeconomic conditions gave rise to the common precursors of indigenous crime, including unemployment, homelessness, and boredom.
In September, HREOC drew to the attention of the U.N. Committee on the Rights of the Child the heavily disproportionate impact the W.A. mandatory sentencing law for home burglary offenses had on Aboriginal juveniles, with indigenous youth accounting for 81 percent of all juveniles convicted under the law.
Indigenous groups charged that police harassment of indigenous people, including juveniles, was pervasive and that racial discrimination among police and prison custodians persisted. Human rights groups and indigenous people alleged a pattern of mistreatment and arbitrary arrests occurring against a backdrop of systematic yet unofficial discrimination; these statements were based on anecdotal information and lacked statistical confirmation.
A 2002 W.A. inquiry into family violence and sexual abuse found that indigenous women in W.A. accounted for as many as 50 percent of all domestic violence incidents although they constituted less than 3 percent of the population. Indigenous women were 45 times more likely to be victims of violence than nonindigenous women and 10 times more likely to die as a result. In May, prominent indigenous leader and former ATSIC Chairman Mick Dodson highlighted the prevalence of domestic violence in indigenous communities and called upon indigenous men to be more accountable for the problem. In June, ATSIC increased its funding of indigenous family violence projects by $657,000 (A1 million) to $2.9 million (A4.4 million). In July, the federal and state governments launched a multifaceted action plan to tackle indigenous violence and announced seven priority areas for government funding, including reducing alcohol and substance abuse, increasing child safety and well being, creating safe places in the community, and promoting shared leadership. In August, the Federal Government supplemented ATSIC's regional council family violence action plan funding by an additional $2 million (A3 million) over 2 years. A 2001 Northern Queensland study into indigenous violence found that 70-90 percent of all assaults were committed under the influence of alcohol or drugs. In August, the Government committed $6.9 million (A10.5 million) over 4 years to help divert Aboriginals and Torres Strait Islanders from alcohol and drug abuse and $4 million (A6.1 million) for NGO indigenous treatment programs.
The Government continued to oppose an official apology to the "Stolen Generation" of Aboriginal children, who were removed from their parents by the Government from 1910 until the 1970s, on the grounds that the present generation had no responsibility to apologize for the wrongs of a previous generation.
Following the 2002 rejection by the High Court of a claim for compensation by two members of the "Stolen Generation" because of insufficient evidence, many Aboriginal leaders and NGOs supported calls for the Government to establish a Reparations Tribunal to avoid costly legal battles in the future. The Government rejected this proposal. However, in 2002, the Government allocated an additional $6.5 million (A9.9 million) over 4 years to the national network of Link Up offices it established in 1998 in response to HREOC's landmark 1997 report on the "Stolen Generation." The Link Up offices provide family tracing, reunion, and other support to indigenous families separated as a result of past government practices. In the 12 months ending June 30, the Government spent $2.6 million (A4 million) on family tracing and reunion services.
The National Native Title Tribunal resolves native title applications through mediation. The Tribunal also acts as an arbitrator in cases where the parties cannot reach agreement about proposed mining or other development of land. In 2002, ATSIC noted that the 1993 Native Title Act, as amended in 1998, provided gains for Aboriginal people but still did not address adequately the needs of native title claimants. Aboriginal leaders were pleased by the removal of a time limit for lodging native title claims but expressed deep concern about the weakening of Aboriginal rights to negotiate with non-Aboriginal leaseholders over the development of rural property. Aboriginal groups continued to express concern that the amended act limited the future ability of Aboriginal people to protect their property rights. In December, after almost a decade of litigation, the Federal Court approved a consent agreement between the Miriuwung-Gajerrong people and the Federal, W.A. and N.T. Governments on a native title claim of almost 8,000 square kilometers of land in East Kimberley region covering the far north of W.A. and the N.T. In a separate case in December, the Federal Court also recognized the Wanjina Wunggurr Wilinggin claimants' native title rights over remaining crown land within 60,000 square kilometers of W.A.'s Kimberley region.
In 2002, the High Court ruled that native title rights did not extend to mineral or petroleum resources, and that in cases where leasehold rights and native title rights were in conflict, leaseholder rights prevailed. Also in 2002, the High Court rejected the Yorta Yorta people's land claim, ending the country's longest-running native title case. The court required that the Yorta Yorta people, in order to claim ownership, demonstrate that they had, without interruption and throughout the period of white settlement, practiced a system of native law and tradition on the land in question. Aboriginal leaders voiced concern that this decision would make future claims untenable by establishing too great a burden of proof.
The $848 million (A1,290 million) indigenous land fund is a special account that provides an ongoing source of funds for indigenous people to purchase land for their use. It is separate from the Native Title Tribunal and is not for payment of compensation to indigenous people for loss of land or to titleholders for return of land to indigenous people.
The NGO Aboriginal Tent Embassy in Canberra was set up in a small structure on public land opposite the Old Parliament building over 30 years ago and publicized Aboriginal grievances. The tent embassy, which also encompassed an itinerants' camp, still existed at year's end despite fire damage in June and continued efforts to relocate it by the Government and some local indigenous groups, who asserted that it was not representative of the entire indigenous community. Other Aboriginal NGOs included groups working on native title issues, reconciliation, deaths in custody, and Aboriginal rights in general. International NGOs, such as AI, also monitored and reported on indigenous issues and rights.
Although Asians comprised less than 5 percent of the population, they made up approximately 40 percent of new immigrants. Public opinion surveys long have indicated concern with the number of new immigrants. However, a marked increase in unauthorized boat arrivals from the Middle East during the period 1998-2001 heightened public concern that "queue jumpers" and alien smugglers were abusing the country's refugee program. Leaders in the ethnic and immigrant communities continued to express concern that increased numbers of illegal arrivals and violence at migrant detention centers had contributed to incidents of vilification of immigrants and minorities. Following the deaths of 88 Australian citizens in a 2002 terrorist bombing in Bali, the press reported an increase in racially motivated incidents.
According to the 2002-03 HREOC report, the number of racial discrimination complaints fell by 2 percent during the reporting year. Of 182 reported cases, 42 percent involved employment; 24 percent involved provision of goods, services, and facilities; and 13 percent alleged "racial hatred." Non-English speakers filed 58 percent of the complaints, and Aboriginals and Torres Strait Islanders, 28 percent.
Section 6 Worker Rights
a. Right of Association
The law provides workers, including public servants, the right of association domestically and internationally, and workers exercised this right in practice. A 2002 ABS survey indicated that union membership had declined to 23.1 percent of the workforce from 24.5 percent the previous year.
Unions carried out their functions free from government or political control, although most local unions belonged to state branches of the ALP. Union members made up at least 50 percent of the delegates to ALP state and territory conferences, but unions did not participate or vote as a bloc.
The Workplace Relations Act contains curbs on union power, restrictions on strikes (see Section 6.b.), and an unfair-dismissal system that limits redress and compensation claims by dismissed employees. The umbrella trade union organization, the Australian Council of Trade Unions (ACTU), has objected to the law, alleging that it violates the right to assembly provided for in several ILO conventions that the Government has signed, including ILO Convention 87 on the Freedom of Association and Protection of the Right to Organize. Both the ILO's Committee on Freedom of Association and Committee of Experts on the Application of Conventions and Recommendations have called on the Government to amend the WRA and the Trade Practices Act (TPA) to bring them into compliance with ILO Convention 87. The Government rejected the ILO's comments. The primary curb on union power is the abolition of closed shops and union demarcations. This provision could create many small and competing unions at the enterprise level, but thus far, there have been few changes in existing union structures.
Unions may form and join federations or confederations freely, and they actively participated in international bodies. However, in 2000, the ILO's Committee on Freedom of Association also recommended that the Government take measures, including amending legislation, to ensure that in the future, trade union organizations are entitled to maintain contacts with international trade union organizations and to participate in their legitimate activities. The Government rejected this recommendation.
b. The Right to Organize and Bargain Collectively
Federal, state, and territorial laws provide workers with the right to organize and bargain collectively and protection from anti-union discrimination. Workers exercised these rights in practice.
Since passage of the WRA in 1996, negotiation of contracts covering wages and working conditions shifted from the centralized awards system of the past to enterprise-level agreements certified by the Australian Industrial Relations Commission (AIRC). In the 12-month period ending June 30, the AIRC certified 6,514 enterprise agreements, a decrease of 3 percent from the number certified in the previous 12 months. The WRA provides for the negotiation of Australian Workplace Agreements (AWAs) between employers and individual workers, which are subject to fewer government regulations than awards or enterprise bargaining agreements; however, AWAs must improve upon the basic working conditions contained in a relevant same-sector award. Rates of AWA approvals continued to grow. Of the 412,782 AWAs made in the past 6 years, more than 30 percent were made in retail trade, property and business services, and manufacturing industries.
Federal law first recognized an implicit right to strike in 1994. The 1996 WRA significantly restricts this right; it subjects strikers to heavy fines for taking industrial action during the life of an agreement and contains tougher secondary-boycott provisions. The WRA confines strikes to the period when unions are negotiating a new enterprise agreement, and strikes must concern matters under negotiation. This is known as "protected action." Protected action provides employers, employees, and unions with legal immunity from claims of losses incurred by industrial action. In 1999, a union successfully challenged the WRA's restriction on strike action in federal court. The court refused to grant an injunction against the union for taking industrial action outside of a bargaining period because the action was in support of maintaining existing wages and conditions. The decision has not been appealed to date. Parliament has rejected on many occasions the Government's proposed changes to the TPA, which would provide companies with resort to legal action if they were subject to secondary boycotts.
During the year, there were no national strikes of significance, but there were short localized strikes by health-care professionals, teachers, entertainers, and construction workers. The Bureau of Statistics reported 703 industrial disputes for the twelve months ending June 30, an increase of nearly 3 percent from the previous year; during the same period, workdays lost due to strikes fell by 26 percent to 244,700.
During the year, the ACTU campaigned to increase the minimum wage, set reasonable hours, protect employee entitlements in the face of numerous company collapses, and extend family-friendly policies in the workplace. In May, the ACTU successfully argued for an increase in the federal minimum wage (see Section 6.e.). In 2002, the AIRC refused the ACTU's request to set a standard for "reasonable working hours" but allowed workers to refuse without penalty to work unreasonable overtime. In April, the N.S.W. industrial relations commission extended these provisions to N.S.W. awards. By year's end, 12,000 former Ansett Airlines employees had received partial payment for entitlements lost after the company's collapse in 2001; the union movement's campaign on their behalf resulted in the recovery of 71 cents for every lost dollar of entitlement. Throughout the year, unions successfully campaigned for paid maternity leave provisions in many collective agreements.
The ILO's Committee on Freedom of Association in 2000 and its Committee of Experts on the Application of Conventions and Recommendations during the year recommended that the Government remove certain provisions in the WRA and the TPA that restrict a union's ability to take strike action. On both occasions, the Government rejected the ILO's comments, stating that they reflected an inadequate understanding of Australian law.
There are no export processing zones.
c. Prohibition of Forced or Bonded Labor
The law does not explicitly prohibit forced or bonded labor, including by children; however, there were no reports that such practices occurred. Trafficking in women was a limited problem (see Section 6.f.).
d. Child Labor Practices and Minimum Age for Employment
There is no federally mandated minimum age of employment, but state-imposed compulsory educational requirements, enforced by state educational authorities, effectively prevented most children from joining the work force full time until they were 15 or 16 years of age. Federal and state governments monitored and enforced a network of laws, which varied from state to state, governing the minimum school-leaving age (see Section 5), the minimum age to claim unemployment benefits, and the minimum age to engage in specified occupations. The ACTU also monitored adherence to these laws.
The country has not ratified ILO Convention 182 on the worst forms of child labor.
In October, Victoria enacted new legislation to strengthen protection of working children by specifying minimum conditions of work; the previously existing restriction of children to light work only also remained in force.
e. Acceptable Conditions of Work
Although a formal minimum wage exists, it has not been directly relevant in wage agreements since the 1960s, since most workers receive higher wages through enterprise agreements or individual contracts. In May, the AIRC increased the federal minimum award wage by $11 (A17) to $295 (A448.40) per week. Differing minimum wages for individual trades and professions covered approximately 80 percent of all workers; all rates provided a decent standard of living for a worker and family.
Most workers were employees of incorporated organizations. A complex body of applicable government regulations, as well as decisions of applicable federal or state industrial relations commissions, prescribe a 40-hour or shorter workweek, paid vacations, sick leave, and other benefits. The minimum standards for wages, working hours, and conditions are set by a series of "awards" (basic contracts for individual industries).
Over the past two decades, there has been a substantial increase in the percentage of the workforce regarded as temporary workers. In 2001, there were 2.1 million persons (27 percent of the workforce) employed as casual or temporary workers, even though government statistics indicated that over 50 percent had been employed in the same job for over 12 months, and 67 percent worked regular hours. Such employees were not entitled to certain employment benefits such as sick leave or annual leave, but were paid at a higher hourly wage rate.
Federal or state occupational health and safety laws apply to every workplace. The law provides federal employees with the right to cease work without endangering their future employment if they believe 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 investigate complaints and demand remedial action.
Labor law protects citizens, permanent residents, and migrant workers alike. Migrant worker visas required that employers respect these protections and provide bonds to cover health insurance, worker compensation insurance, unemployment insurance, and other benefits. Past reports of abuse of foreign workers generally involved permanent residents who performed work in their homes in the clothing and construction industries. There were no such reports during the year.
There were no reports of worker rights abuses in any of the country's five dependent territories of Macquarie and Heard Islands, Christmas Island, Cocos (Keeling) Island, and Norfolk Island.
f. Trafficking in Persons
The law prohibits trafficking in persons, but the country continued to be a destination for a small, indeterminate number of trafficked women in the sex industry.
Legislation enacted in 1999 targets criminal practices associated with trafficking, and other laws address smuggling of migrants. Trafficking in a limited number of persons from Asia, particularly women, was a problem that the Government took steps to address as part of a broader effort against "people smuggling," defined as "illegally bringing noncitizens into the country." Under the Federal Migration Act, smuggling of persons in all forms is prohibited and carries a maximum penalty of 20 years' imprisonment. Under the Federal Crimes Act, conduct that amounts to slavery, or exercising a power of ownership over another person, carries a maximum penalty of 25 years' imprisonment. No prosecutions have occurred under this legislation, although trafficking investigations were ongoing; in June and July, police investigations led to the arrest of seven persons in Melbourne and Sydney. The 2001 Border Protection Act authorized the boarding and searching of vessels in international waters, if suspected of smuggling or trafficking in persons. In 2002, the criminal code was modified to provide for sentences of up to 20 years' imprisonment upon conviction for "people smugglers" who knew that their victims were destined for involuntary sexual servitude and bonded labor. The Federal Parliament inquired into the national criminal intelligence agency's efforts to gauge the extent of the sex trafficking problem and the adequacy of federal sex trafficking laws; the parliamentary committee had not issued its report by year's end.
DIMIA and the Australian Customs Service have lead roles in dealing with illegal migration, including trafficking in persons. The AFP enforces the trafficking provisions of the Federal Crimes Act, while state and territorial police forces enforce their respective criminal codes. DIMIA and the AFP reported that women, mostly from Asia, were brought into the country for the purpose of prostitution, sometimes entering with fraudulently obtained tourist or student visas. There have been some instances of organized crime groups forcing foreign women to work as sex workers. Some reports indicated that women working in the sex industry became mired in debt or were physically forced to keep working, and that women in irregular immigration status were pressured to accept hazardous working conditions. Some women were subjected to indentured sexual servitude to pay debts to their traffickers. Some women were lured by offers of employment as waitresses, maids, or dancers and were not aware that they would be employed as prostitutes after entering the country. There were also reports of young women, primarily from Asia, sold into the sex industry by impoverished families. However, available evidence indicated that such cases were not widespread.
In 2002, the Government established the position of Ambassador for People Smuggling Issues, with responsibility for promoting a coherent and effective international approach to combating people smuggling (particularly in the Asia-Pacific region), assisting in the negotiation of international agreements for the return and resettlement of persons brought illegally into the country, and working for the prosecution of smugglers and traffickers in persons.
Early in the year, the Government took a series of additional steps to combat trafficking in persons for sexual exploitation, including establishing a national police Transnational Sexual Offenses Crime Team to collate and analyze intelligence on organized trafficking syndicates; signing a memorandum of understanding with the Indonesian police that permits joint operations to combat transnational crime, including trafficking in persons; and sponsoring a seminar with NGOs to discuss ways to improve assistance to victims of trafficking in persons. The Government also increased enforcement against brothels using illegal aliens. In April, the country co-chaired with Indonesia the second annual 38-country Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime. During the year, the Government also began funding the $5.6 million (A8.5 million) Asia Regional Cooperation to Prevent People Trafficking project. Underway in four countries--Thailand, Laos, Burma and Cambodia--the project focused on strengthening the criminal justice process to combat trafficking in persons.
In October, the Government announced a coordinated series of measures, developed in consultation with NGOs and designed to be implemented over a 4-year period, to strengthen further its efforts to combat trafficking in persons. These included additional antitrafficking legislation, enhanced government cooperation with other countries and state and local law enforcement authorities, new visa procedures to facilitate cooperation of trafficking victims with law enforcement personnel, and additional social services for victims. As part of the October package, the Government replaced its analytical Transnational Sexual Offenses Crime Team with the Transnational Sexual Exploitation and Trafficking Team, an expanded 23-member mobile strike force responsible for investigating trafficking syndicates operating in the country.
There were no NGOs devoted solely to trafficking victims. Nonetheless, assistance was available through NGOs that ran shelters for women and youth; sex worker organizations; the NGO Project Respect, which assisted women to escape prostitution and combated sex trafficking of women; and Childwise, which campaigned against the commercial sexual exploitation of children in the country and through sex tourism overseas. Some NGOs received government funding; others were funded privately. Local NGOs and the press were instrumental in bringing to the authorities' attention the presence of illegal migrant women and girls in brothels and massage parlors, and raising public awareness of the problem.