Document 01
Contains deletions under FOI
Gregory Parkhurst
From:
Media
Sent:
Thursday, 23 November 2017 12:01 PM
To:
Fiona Sawyers; Erica s 47F ; Phuong s
Cc:
Media; Michael Manthorpe; Jaala Hinchcliffe
47F
Subject:
FW: Urgent media enquiry: AFP access of journalist metadata [SEC=UNCLASSIFIED]
Importance:
High
Good afternoon
Please see below a media enquiry from Christopher Knaus from The Guardian.
Could you please prepare a response to his query. Please note Chris’ deadline of
COB today. For your background,
the Communication Team was in a meeting this morning and we have just seen this email.
I will go back to the journalist to ask whether there is any flexibility in his deadline.
Thanks
Candice s 47F
Communication Manager
Ph: s 47E
Web:
ombudsman.gov.au Influencing systemic improvement in public administration
From: Christopher Knaus [mailto:xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx]
Sent: Thursday, 23 November 2017 10:24 AM
To: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: Ombudsman audit: AFP access of journalist metadata
Hi there,
Just hoping you can help me with something. I'm following up on an incident from April, which involved
the unlawful accessing of a journalist's metadata by the AFP. At the time, the AFP said the ombudsman was
auditing the breach to ensure the agency's safeguards were strong enough to prevent a repeat.
I'm just wondering the following:
- has such an audit been conducted? What is its status?
- if it has been finalised, what were the audit's findings?
- what concerns, if any, does the ombudsman hold about this incident?
- what has been the response of the AFP? Has it strengthened its systems/safeguards in a way sufficient to
prevent a repeat?
I was hoping for a response by COB today, if possible.
Many thanks,
Christopher Knaus
1
Document 01
Contains deletions under FOI
Journalist
The Guardian | Australia
-----
+61 2 8076 8536
+61 422 283 681
xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx
-----
m
m
m
m
V
theguardian.com/au
-----
Download the Guardian app for Android and iOS
This e-mail and all attachments are confidential and may also be privileged. If you are not the
named recipient, please notify the sender and delete the e-mail and all attachments
immediately. Do not disclose the contents to another person. You may not use the information for
any purpose, or store, or copy, it in any way. Guardian News & Media Limited is not liable for any
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virus checking software.
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
2
Document 02
Contains deletions under FOI
Gregory Parkhurst
s 22
From: Dermot Walsh s 47E
Sent: Wednesday, 26 June 2019 1:48 PM
To: Jaala Hinchcliffe s 47E
Cc: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: RE: Media query: private health insurers and PEC rejections [SEC=UNCLASSIFIED]
Hi Jaala
As discussed, draft response below for your consideration.
I am going to head back to Lean training, If you would like to discuss/clarify I will be monitoring email and you can
reach me on the mobile.
Thanks
Dermot
Dear Mr Knaus
Thank you for your enquiry to the Office of the Commonwealth Ombudsman.
1
Document 02
Contains deletions under FOI
Please be aware that the Office investigates in private, therefore does not provide comment on individual
complaints and investigations.
The Private Health Insurance Ombudsman was merged into the Commonwealth Ombudsman in 2015. In this role,
our function is to protect the interests of private health consumers. This includes investigating complaints from
consumers about pre‐existing condition (PEC) decisions and ensuring the PEC rules have been correctly applied. The
Office acts as an independent third party when dealing with complaints about PEC waiting periods. When the Office
receives a complaint from a member about the application of PEC waiting periods, our process is to request a copy
of the health insurer’s medical report and a copy of the certificates completed by the member’s treating doctor and
specialist. This information is only requested once the member has provided written consent for the Office to seek
this information from the insurer. The Office reviews the information provided by the insurer and then decides
whether to provide an explanation to the consumer, investigate the matter further or negotiate a resolution with
the insurer.
In making determinations about complaints about the PEC waiting period, the Office ensures the waiting period has
been applied correctly and that the fund and hospital have complied with the Pre‐Existing Condition Best Practice
Guidelines. In circumstances where individual complaints highlight systemic issues with the application of the
private health insurance regulatory framework, the Ombudsman may initiate an own investigation or refer the
matter to the regulator, XX.
For more about the Ombudsman’s role in PEC cases, please see:
http://www.ombudsman.gov.au/publications/brochures‐and‐fact‐sheets/factsheets/all‐fact‐sheets/phio/the‐pre‐
existing‐conditions‐rule
Regards
Media Team
s 22
From: Christopher Knaus <xxxxxxxxxxx.xxxxx@xxxxxxxxxxx.xxx>
Sent: Tuesday, 25 June 2019 2:57 PM
To: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: Media query: private health insurers and PEC rejections
Hi team,
Apologies in advance for the lengthy email, it's a rather complex inquiry.
I have a series of questions about the Commonwealth Ombudsman's dealings with three private health
insurers. The dealings date back to 2014, and involve Bupa, NIB, and HCF, and relate to their rejection of
claims due to pre-existing conditions (PEC). The Private Health Insurance Act requires insurers to obtain
2
Document 02
Contains deletions under FOI
the "opinion of a medical adviser appointed by the health insurer" on whether symptoms existed within six
months of taking out the policy, before they reject a claim on PEC grounds.
In 2016, Bupa publicly acknowledged it had repeatedly failed to obtain these medical opinions for 7740
claimants between 2011 and 2016.
I have evidence showing the following:
- the Ombudsman had evidence to suggest Bupa was illegally rejecting claims by failing to appoint a
medical practitioner as early as 2014. It did not act until 2016, when Bupa notified it that there were 7740
claimants affected.
- In 2016, the Cwth Ombudsman believed Bupa had falsified documents that hid the nature and scale of the
breach from the Ombudsman. The insurer had claimed the error was just an "oversight" in its processes.
- in 2016, the Cwth Ombudsman had cause to question HCF about whether it had obtained medical reviews
in PEC cases. HCF said that it had, but failed to provide any evidence to back up its claims. No further
action was taken.
- in 2018, the Cwth Ombudsman again had cause to question HCF and request evidence of medical reviews
in a PEC case. No such evidence was provided. Instead, the Ombudsman employee investigating the matter
was sidelined and directed not to consider any more PEC cases. This lasted four months, until the employee
was restored to normal duties.
- in 2018, the Cwth Ombudsman had cause to investigate NIB for its failure to appoint a medical
practitioner to review PEC case. NIB admitted to the Ombudsman that it had not been appointing medical
practitioners in some PEC cases over a period of seven years.
- the NIB case has not been made public in any way. NIB has been allowed to deal with it internally. The
matter was also referred to the department of health, but it has made no public statement about the case.
This has left those with NIB health insurance - including affected claimants - in the dark.
My questions are:
- why did the Cwth Ombudsman not act on the Bupa case in 2014, when it was first identified?
- what action did the Cwth Ombudsman take over Bupa's alleged falsification of records. What records were
falsified? in what way were they falsified?
- why did the Ombudsman not demand that HCF produce evidence that it had appointed medical
practitioners?
- why did it sideline an investigator who was considering the HCF matter?
- why has the Ombudsman made no public statement about the NIB case? why has the public not been
informed that a major insurer has illegally rejected claims over a period of seven years?
I was hoping for a response by 4pm tomorrow.
Many thanks,
-----
Christopher Knaus Reporter
The Guardian | Australia
-----
+61 (0) 422 283 681
xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx
-----
twitter: @knausc
-----
3
Document 02
Contains deletions under FOI
Level 3, 19 Foster St
Surry Hills NSW 2010
theguardian.com/au
-----
This e-mail and all attachments are confidential and may also be privileged. If you are not the
named recipient, please notify the sender and delete the e-mail and all attachments
immediately. Do not disclose the contents to another person. You may not use the information for
any purpose, or store, or copy, it in any way. Guardian News & Media Limited is not liable for any
computer viruses or other material transmitted with or as part of this e-mail. You should employ
virus checking software.
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
4
Document 03
Contains deletions under FOI
Gregory Parkhurst
s 22
From: Dermot Walsh s 47E
Sent: Monday, 1 July 2019 11:49 AM
To: Jaala Hinchcliffe s 47E
; Rodney Walsh s 47E
Cc: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: FW: Media query: private health insurers and PEC rejections [SEC=UNCLASSIFIED]
Importance: High
Jaala/Rodney
Updated draft media response below as discussed this morning.
I am currently trawling through public documents on the new PHIO powers – it does not appear there were any
specific comments about an insurer(s) withholding complaint information from PHIO.
Our Bupa press release is here: https://www.ombudsman.gov.au/media‐releases/media‐release‐
documents/commonwealth‐ombudsman/2016/12‐sep‐2016
Thanks
1
Document 03
Contains deletions under FOI
Dermot
Dear Mr Knaus
Thank you for your enquiry to the Office of the Commonwealth Ombudsman concerning pre‐existing condition (PEC)
cases in relation to three private health insurers. While the Office investigates in private and therefore does not
provide comment on individual complaints and investigations, we have considered the matters that you have
referred to in your email and are satisfied that we dealt with the matters that were referred to us in accordance
with our processes for PEC cases, which we have set out for you below. We note that two of the matters were
appropriately referred to the regulator. The third matter was not referred to the regulator because we did not
consider that it was necessary to do so.
Background to PHIO role
The Private Health Insurance Ombudsman (PHIO) was merged into the Commonwealth Ombudsman in 2015. In this
role, our function is to protect the interests of private health consumers. This includes investigating complaints from
consumers about pre‐existing condition (PEC) decisions and ensuring the PEC rules have been correctly applied by
the insurer. The Office acts as an independent third party when dealing with complaints about PEC waiting periods.
PHIO process for PEC complaints
When the Office receives a complaint from a member about the application of PEC waiting periods, our process is to
request copies of relevant documentation including:
Medical certificate from the member’s GP.
Medical certificate from the member’s specialist.
The assessment and decision from the insurer’s medical advisor.
The outcome letter/email from the insurer to the member.
Any further information that the medical advisor has used to reach their decision – e.g. hospital admission
notes, specialist referral letters, medical records.
In some cases, some of this information may not be available – e.g. in emergency cases there may be no GP
or specialist notes and the insurer may rely on hospital admission notes instead.
The Office’s PHIO case officer will assess the information provided by the insurer and will either:
Finalise the complaint assessment and advise the complainant and insurer of the outcome.
Seek guidance on the complaint through discussion at a PHIO case meeting.
Escalate the complaint and seek guidance from PHIO management on how best to progress the complaint,
including whether the insurer has made the decision in accordance with the Act.
Steps taken by the Office to finalise PEC complaints:
If our assessment concludes that the PEC rules were correctly applied by the insurer, the case officer will
write to the complainant and the insurer notifying of our decision and advising that the complaint will be
finalised.
If our assessment suggests the PEC rules were not correctly applied or the case is complex/ambiguous, the
Office will seek the complainant’s permission to send the case to an Independent Medical Advisor (IMA) for
review:
o If IMA agrees that the insurer has correctly applied the PEC rules, the case will finalised.
o If IMA does not agree that the insurer has correctly applied the PEC rules, our case officer will write
back to the insurer requesting their medical practitioner reconsider the case.
In making determinations about complaints about the PEC waiting period, the Office ensures the waiting period has
been applied correctly and that the fund and hospital have complied with the Pre‐Existing Condition Best Practice
Guidelines. In circumstances where individual complaints highlight systemic issues with the application of the
private health insurance regulatory framework, the Office may provide feedback to the insurer in our complaint
2
Document 03
Contains deletions under FOI
finalisation correspondence, or the Ombudsman may initiate an own investigation or refer the matter to the
regulator, for PEC matters this would be the Department of Health.
For more about the Ombudsman’s role in PEC cases, please see:
http://www.ombudsman.gov.au/publications/brochures‐and‐fact‐sheets/factsheets/all‐fact‐sheets/phio/the‐pre‐
existing‐conditions‐rule
We would be happy to meet with you to discuss our role in PEC cases if that would be of assistance.
Regards
Media Team
s 22
From: Christopher Knaus <xxxxxxxxxxx.xxxxx@xxxxxxxxxxx.xxx>
Sent: Tuesday, 25 June 2019 2:57 PM
To: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: Media query: private health insurers and PEC rejections
Hi team,
Apologies in advance for the lengthy email, it's a rather complex inquiry.
I have a series of questions about the Commonwealth Ombudsman's dealings with three private health
insurers. The dealings date back to 2014, and involve Bupa, NIB, and HCF, and relate to their rejection of
claims due to pre-existing conditions (PEC). The Private Health Insurance Act requires insurers to obtain
the "opinion of a medical adviser appointed by the health insurer" on whether symptoms existed within six
months of taking out the policy, before they reject a claim on PEC grounds.
In 2016, Bupa publicly acknowledged it had repeatedly failed to obtain these medical opinions for 7740
claimants between 2011 and 2016.
I have evidence showing the following:
- the Ombudsman had evidence to suggest Bupa was illegally rejecting claims by failing to appoint a
medical practitioner as early as 2014. It did not act until 2016, when Bupa notified it that there were 7740
claimants affected.
- In 2016, the Cwth Ombudsman believed Bupa had falsified documents that hid the nature and scale of the
breach from the Ombudsman. The insurer had claimed the error was just an "oversight" in its processes.
3
Document 03
Contains deletions under FOI
- in 2016, the Cwth Ombudsman had cause to question HCF about whether it had obtained medical reviews
in PEC cases. HCF said that it had, but failed to provide any evidence to back up its claims. No further
action was taken.
- in 2018, the Cwth Ombudsman again had cause to question HCF and request evidence of medical reviews
in a PEC case. No such evidence was provided. Instead, the Ombudsman employee investigating the matter
was sidelined and directed not to consider any more PEC cases. This lasted four months, until the employee
was restored to normal duties.
- in 2018, the Cwth Ombudsman had cause to investigate NIB for its failure to appoint a medical
practitioner to review PEC case. NIB admitted to the Ombudsman that it had not been appointing medical
practitioners in some PEC cases over a period of seven years.
- the NIB case has not been made public in any way. NIB has been allowed to deal with it internally. The
matter was also referred to the department of health, but it has made no public statement about the case.
This has left those with NIB health insurance - including affected claimants - in the dark.
My questions are:
- why did the Cwth Ombudsman not act on the Bupa case in 2014, when it was first identified?
- what action did the Cwth Ombudsman take over Bupa's alleged falsification of records. What records were
falsified? in what way were they falsified?
- why did the Ombudsman not demand that HCF produce evidence that it had appointed medical
practitioners?
- why did it sideline an investigator who was considering the HCF matter?
- why has the Ombudsman made no public statement about the NIB case? why has the public not been
informed that a major insurer has illegally rejected claims over a period of seven years?
I was hoping for a response by 4pm tomorrow.
Many thanks,
-----
Christopher Knaus Reporter
The Guardian | Australia
-----
+61 (0) 422 283 681
xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx
-----
twitter: @knausc
-----
Level 3, 19 Foster St
Surry Hills NSW 2010
theguardian.com/au
-----
This e-mail and all attachments are confidential and may also be privileged. If you are not the
named recipient, please notify the sender and delete the e-mail and all attachments
immediately. Do not disclose the contents to another person. You may not use the information for
any purpose, or store, or copy, it in any way. Guardian News & Media Limited is not liable for any
computer viruses or other material transmitted with or as part of this e-mail. You should employ
virus checking software.
4
Document 03
Contains deletions under FOI
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
5
Contains deletions under FOI
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Contains ument 04
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s 22
2
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s 22
From: Rodney Walsh s 47E
Sent: Friday, 5 July 2019 11:14 AM
To: Jaala Hinchcliffe s 47E
Tim s 47F
s 47E
Cc: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: RE: Media query: private health insurers and PEC rejections [SEC=UNCLASSIFIED]
No, no – I’m the same, especially in the context that Mr Knaus has noted his familiarity with the Act.
Does anyone mind if I quickly speak with David?
s 22
s 22
3
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s 22
From: Rodney Walsh s 47E
Sent: Friday, 5 July 2019 9:19 AM
To: Tim s 47F
s 47E
Cc: Media <xxxxx@xxxxxxxxx.xxx.xx>; Jaala Hinchcliffe s 47E
Subject: FW: Media query: private health insurers and PEC rejections [SEC=UNCLASSIFIED]
Hi Tim ‐ for advice please, as discussed.
I have also confirmed with media team that I will respond to Mr Knaus along the lines “I am seeking some
information from the relevant area and will respond as soon as possible”.
4
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If it assists you, Alison Leung undertook the research for the primary questions obo PHIO in this matter.
R
From: Christopher Knaus <xxxxxxxxxxx.xxxxx@xxxxxxxxxxx.xxx>
Sent: Thursday, 4 July 2019 3:09 PM
To: Rodney Walshs 47E
Cc: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: Re: Media query: private health insurers and PEC rejections [SEC=UNCLASSIFIED]
Thanks again for this Rodney. We will include the response and details of the Commonwealth
Ombudsman's role in the piece.
The only other thing I wanted to check on background, not for quoting. In a general sense, does the
ombudsman consider rejecting a claim PEC grounds without a doctor's advice to be illegal/unlawful? It
seems clear to me from the private health insurance act that it is, but I'm really just wanting to be careful
with the language.
-----
Christopher Knaus Reporter
The Guardian | Australia
-----
+61 (0) 422 283 681
xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx
-----
twitter: @knausc
-----
Level 3, 19 Foster St
Surry Hills NSW 2010
theguardian.com/au
-----
On Mon, 1 Jul 2019 at 15:10, Rodney Walsh s 47E
wrote:
Dear Mr Knaus
Thank you for your enquiry to the Office of the Commonwealth Ombudsman concerning pre‐existing condition
(PEC) cases in relation to three private health insurers. While the Office investigates in private and therefore does
not provide comment on individual complaints and investigations, we have considered the matters that you have
referred to in your email and are satisfied that we dealt with the matters that were referred to us in accordance
with our processes for PEC cases, which we have set out for you below. Given the information that was before us
at the relevant times, we are satisfied that we took appropriate actions. We note that two of the insurers subject to
your inquiries were appropriately referred to the regulator. The third insurer was not referred to the regulator
because we did not consider that it was necessary to do so.
5
Do
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Background to PHIO role
The Private Health Insurance Ombudsman (PHIO) was merged into the Commonwealth Ombudsman in 2015. In
this role, our function is to protect the interests of private health consumers. This includes investigating complaints
from consumers about pre‐existing condition (PEC) decisions and ensuring the PEC rules have been correctly
applied by the insurer. The Office acts as an independent third party when dealing with complaints about PEC
waiting periods.
PHIO process for PEC complaints
When the Office receives a complaint from a member about the application of PEC waiting periods, our process is
to request copies of relevant documentation including:
Medical certificate from the member’s GP.
Medical certificate from the member’s specialist.
The assessment and decision from the insurer’s medical advisor.
The outcome letter/email from the insurer to the member.
Any further information that the medical advisor has used to reach their decision – e.g. hospital
admission notes, specialist referral letters, medical records.
In some cases, some of this information may not be available – e.g. in emergency cases there may be
no GP or specialist notes and the insurer may rely on hospital admission notes instead.
The Office’s PHIO case officer will assess the information provided by the insurer and will either:
Finalise the complaint assessment and advise the complainant and insurer of the outcome.
Seek guidance on the complaint through discussion at a PHIO case meeting.
Escalate the complaint and seek guidance from PHIO management on how best to progress the
complaint, including whether the insurer has made the decision in accordance with the Act.
Steps taken by the Office to finalise PEC complaints:
If our assessment concludes that the PEC rules were correctly applied by the insurer, the case officer
will write to the complainant and the insurer notifying of our decision and advising that the complaint will
be finalised.
If our assessment suggests the PEC rules were not correctly applied or the case is complex/ambiguous,
the Office will seek the complainant’s permission to send the case to an Independent Medical Advisor
(IMA) for review:
6
Do
Contains ument 04
deletions under FOI
o If the IMA agrees that the insurer has correctly applied the PEC rules, the case will
finalised.
o If the IMA does not agree that the insurer has correctly applied the PEC rules, our case
officer will write back to the insurer requesting their medical practitioner reconsider the
case.
In making determinations about complaints about the PEC waiting period, the Office ensures the waiting period has
been applied correctly and that the fund and hospital have complied with the Pre‐Existing Condition Best Practice
Guidelines. In circumstances where individual complaints highlight systemic issues with the application of the
private health insurance regulatory framework, the Office may provide feedback to the insurer in our complaint
finalisation correspondence, or the Ombudsman may initiate an own investigation or refer the matter to the
regulator, for PEC matters this would be the Department of Health.
For more about the Ombudsman’s role in PEC cases, please see:
http://www.ombudsman.gov.au/publications/brochures‐and‐fact‐sheets/factsheets/all‐fact‐sheets/phio/the‐pre‐
existing‐conditions‐rule
We would be happy to meet with you to discuss our role in PEC cases if that would be of assistance.
Regards
Rodney Lee Walsh | Chief Operating Officer
Media Team
From: Christopher Knaus <xxxxxxxxxxx.xxxxx@xxxxxxxxxxx.xxx>
Sent: Tuesday, 25 June 2019 2:57 PM
To: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: Media query: private health insurers and PEC rejections
Hi team,
Apologies in advance for the lengthy email, it's a rather complex inquiry.
7
Do
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deletions under FOI
I have a series of questions about the Commonwealth Ombudsman's dealings with three private health
insurers. The dealings date back to 2014, and involve Bupa, NIB, and HCF, and relate to their rejection of
claims due to pre-existing conditions (PEC). The Private Health Insurance Act requires insurers to obtain
the "opinion of a medical adviser appointed by the health insurer" on whether symptoms existed within six
months of taking out the policy, before they reject a claim on PEC grounds.
In 2016, Bupa publicly acknowledged it had repeatedly failed to obtain these medical opinions for 7740
claimants between 2011 and 2016.
I have evidence showing the following:
- the Ombudsman had evidence to suggest Bupa was illegally rejecting claims by failing to appoint a
medical practitioner as early as 2014. It did not act until 2016, when Bupa notified it that there were 7740
claimants affected.
- In 2016, the Cwth Ombudsman believed Bupa had falsified documents that hid the nature and scale of the
breach from the Ombudsman. The insurer had claimed the error was just an "oversight" in its processes.
- in 2016, the Cwth Ombudsman had cause to question HCF about whether it had obtained medical reviews
in PEC cases. HCF said that it had, but failed to provide any evidence to back up its claims. No further
action was taken.
- in 2018, the Cwth Ombudsman again had cause to question HCF and request evidence of medical reviews
in a PEC case. No such evidence was provided. Instead, the Ombudsman employee investigating the matter
was sidelined and directed not to consider any more PEC cases. This lasted four months, until the
employee was restored to normal duties.
- in 2018, the Cwth Ombudsman had cause to investigate NIB for its failure to appoint a medical
practitioner to review PEC case. NIB admitted to the Ombudsman that it had not been appointing medical
practitioners in some PEC cases over a period of seven years.
- the NIB case has not been made public in any way. NIB has been allowed to deal with it internally. The
matter was also referred to the department of health, but it has made no public statement about the case.
This has left those with NIB health insurance - including affected claimants - in the dark.
My questions are:
- why did the Cwth Ombudsman not act on the Bupa case in 2014, when it was first identified?
- what action did the Cwth Ombudsman take over Bupa's alleged falsification of records. What records
were falsified? in what way were they falsified?
- why did the Ombudsman not demand that HCF produce evidence that it had appointed medical
practitioners?
- why did it sideline an investigator who was considering the HCF matter?
8
Do
Contains ument 04
deletions under FOI
- why has the Ombudsman made no public statement about the NIB case? why has the public not been
informed that a major insurer has illegally rejected claims over a period of seven years?
I was hoping for a response by 4pm tomorrow.
Many thanks,
-----
Christopher Knaus
Reporter
The Guardian | Australia
-----
+61 (0) 422 283 681
xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx
-----
twitter: @knausc
-----
Level 3, 19 Foster St
Surry Hills NSW 2010
theguardian.com/au
-----
This e-mail and all attachments are confidential and may also be privileged. If you are not the
named recipient, please notify the sender and delete the e-mail and all attachments
immediately. Do not disclose the contents to another person. You may not use the information for
any purpose, or store, or copy, it in any way. Guardian News & Media Limited is not liable for
9
Do
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deletions under FOI
any computer viruses or other material transmitted with or as part of this e-mail. You should
employ virus checking software.
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
The Office of the Commonwealth Ombudsman acknowledges the traditional owners of country throughout
Australia and their continuing connection to land, culture and community. We pay our respects to elders
past and present. ---------------------------------------------------------------------
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any purpose, or store, or copy, it in any way. Guardian News & Media Limited is not liable for any
computer viruses or other material transmitted with or as part of this e-mail. You should employ
virus checking software.
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
10
Document 05
Contains deletions under FOI
Gregory Parkhurst
s 22
From: Media <xxxxx@xxxxxxxxx.xxx.xx>
Sent: Tuesday, 9 July 2019 10:26 AM
To: Michael Manthorpe s 47E
Rodney Walsh
s 47E
Dermot Walsh s 47E
; Tim s 47E
s 47E
Cc: Jaala Hinchcliffe s 47E
; David s 47F
s 47E
; Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: RE: ABC RN Drive Interview Request [SEC=UNCLASSIFIED]
Hi all,
Another article has come out form Christopher Knaus which references our Office and the ‘whistleblower’ who
worked at our Office:
https://www.theguardian.com/australia‐news/2019/jul/09/government‐urged‐to‐investigate‐allegations‐health‐
insurers‐unlawfully‐rejected‐
claims?utm term=Autofeed&CMP=soc 568&utm medium=Social&utm source=Twitter#Echobox=1562609652
Thank you
Kim
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Many thanks,
-----
Christopher Knaus Reporter
The Guardian | Australia
-----
+61 (0) 422 283 681
xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx
-----
twitter: @knausc
-----
Level 3, 19 Foster St
Surry Hills NSW 2010
theguardian.com/au
-----
This e-mail and all attachments are confidential and may also be privileged. If you are not the
named recipient, please notify the sender and delete the e-mail and all attachments
immediately. Do not disclose the contents to another person. You may not use the information for
any purpose, or store, or copy, it in any way. Guardian News & Media Limited is not liable for any
computer viruses or other material transmitted with or as part of this e-mail. You should employ
virus checking software.
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
2
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Gregory Parkhurst
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From: Christopher Knaus <xxxxxxxxxxx.xxxxx@xxxxxxxxxxx.xxx>
Sent: Monday, 17 August 2020 12:27 PM
To: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: Media query: home affairs department's identification of whistleblower
Hi there,
I have a query for the ombudsman about the handling of a whistleblower complaint by the department of
home affairs.
In June, the department's PID team mistakenly revealed the identity of a whistleblower, a potential criminal
offence punishable by six months imprisonment.
The mistake occurred when the department sent correspondence and documents intended for the
whistleblower to a second, unrelated person who had made a different PID complaint. In doing so, the
department revealed the whistleblower's name and details of the investigation into his/her complaint.
To be clear - the Guardian has no knowledge of the substance of the whistleblower's complaint and has no
intention whatsoever to publish his/her identity or any identifying details.
The facts as I understand them are as follows:
- the whistleblower's identity was revealed in an email from the department's public interest disclosure team
to a separate whistleblower on Friday, June 12, 2020. That email revealed the name of the first
whistleblower and attached a report about his/her complaint.
- disclosing the identity of a whistleblower without consent is a criminal offence, punishable by six months
behind bars, as per section 20 of the PID Act 2013
- the person who received the correspondence by mistake complained to the Cwth Ombudsman about the
blunder, saying it was a criminal offence
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- the Ombudsman refused to investigate and instead passed it back to home affairs, despite concerns of a
conflict of interest
- that has resulted in a situation where home affairs is now investigating allegations about its own staff that
could amount to criminal conduct.
My questions for the ombudsman are:
- why did it refuse to investigate this matter?
- does it acknowledge there is an unavoidable conflict in having the department of home affairs investigate
itself over actions that may amount to criminal conduct?
I am hoping for a response by COB today.
Many thanks,
-----
Christopher Knaus
Reporter
The Guardian | Australia
-----
+61 (0) 422 283 681
xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx
-----
twitter: @knausc
-----
Level 3, 19 Foster St
Surry Hills NSW 2010
theguardian.com/au
-----
This e-mail and all attachments are confidential and may also be privileged. If you are not the
named recipient, please notify the sender and delete the e-mail and all attachments
immediately. Do not disclose the contents to another person. You may not use the information for
any purpose, or store, or copy, it in any way. Guardian News & Media Limited is not liable for any
computer viruses or other material transmitted with or as part of this e-mail. You should employ
virus checking software.
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
2
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Gregory Parkhurst
From:
Claire s 47F
Sent:
Monday, 17 August 2020 2:49 PM
To:
Michael Manthorpe; Media; Lisa s 47F
Cc:
Penny McKay; Julia Taylor
Subject:
RE: Media query: home affairs department's identification of whistleblower
[SEC=OFFICIAL]
Categories:
Purple Category
OFFICIAL
Hi Michael
I suggest the following words to use in response to Mr Knaus:
We are unable to comment noting the public interest disclosures are subject of the secrecy provisions of the PID Act.
If needed, we could also say:
The PID Act encourages the handling of disclosures by the agencies concerned and this office would generally
allocate disclosures to the agency concerned unless we assessed the agency cannot handle the matter.
s 47E
If you would like more details please let me know.
Regards
Claire
Claire s 47F
Director
Complaints Management and Education Branch
COMMONWEALTH OMBUDSMAN
Phone: s 47E
Email: s 47E
Website: ombudsman.gov.au
Influencing systemic improvement in public administration
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From: Christopher Knaus <xxxxxxxxxxx.xxxxx@xxxxxxxxxxx.xxx>
Sent: Monday, 17 August 2020 12:27 PM
To: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: Media query: home affairs department's identification of whistleblower
Hi there,
I have a query for the ombudsman about the handling of a whistleblower complaint by the department of
home affairs.
In June, the department's PID team mistakenly revealed the identity of a whistleblower, a potential criminal
offence punishable by six months imprisonment.
The mistake occurred when the department sent correspondence and documents intended for the
whistleblower to a second, unrelated person who had made a different PID complaint. In doing so, the
department revealed the whistleblower's name and details of the investigation into his/her complaint.
To be clear - the Guardian has no knowledge of the substance of the whistleblower's complaint and has no
intention whatsoever to publish his/her identity or any identifying details.
The facts as I understand them are as follows:
- the whistleblower's identity was revealed in an email from the department's public interest disclosure team
to a separate whistleblower on Friday, June 12, 2020. That email revealed the name of the first
whistleblower and attached a report about his/her complaint.
- disclosing the identity of a whistleblower without consent is a criminal offence, punishable by six months
behind bars, as per section 20 of the PID Act 2013
- the person who received the correspondence by mistake complained to the Cwth Ombudsman about the
blunder, saying it was a criminal offence
- the Ombudsman refused to investigate and instead passed it back to home affairs, despite concerns of a
conflict of interest
- that has resulted in a situation where home affairs is now investigating allegations about its own staff that
could amount to criminal conduct.
My questions for the ombudsman are:
- why did it refuse to investigate this matter?
- does it acknowledge there is an unavoidable conflict in having the department of home affairs investigate
itself over actions that may amount to criminal conduct?
I am hoping for a response by COB today.
Many thanks,
-----
Christopher Knaus Reporter
The Guardian | Australia
-----
+61 (0) 422 283 681
xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx
-----
twitter: @knausc
-----
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Level 3, 19 Foster St
Surry Hills NSW 2010
theguardian.com/au
-----
This e-mail and all attachments are confidential and may also be privileged. If you are not the
named recipient, please notify the sender and delete the e-mail and all attachments
immediately. Do not disclose the contents to another person. You may not use the information for
any purpose, or store, or copy, it in any way. Guardian News & Media Limited is not liable for any
computer viruses or other material transmitted with or as part of this e-mail. You should employ
virus checking software.
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
4
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Gregory Parkhurst
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s 47F
The Financial Review
s 47F
The Sydney Morning Herald
A number of journalist also follow the Office on Twitter – we would recommend a tweet on the statement to cover
off this group.
Let me know your preferences.
Regards,
Lisa
Lisa s 47F
(raised on Wiradjuri land, living on Ngunnawal land)
A/g Chief Operating Officer
Office of the Commonwealth Ombudsman
Phone:s 47E
Email:s 47E
Influencing systemic improvement in public administration
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s 22
From: Rodney Walsh s 47E
Date: Thursday, 27 Jun 2019, 1:59 pm
To: Jaala Hinchcliffe s 47E
>, Kim s 47F
s 47E
>, Alisons 47F s 47E
Cc: Michael Manthorpe s 47E
, Dermot Walsh
s 47E
Subject: PHIO media enquiry [SEC=UNCLASSIFIED]
All – I have spoken with the Guardian journalist, Christopher Knaus, regarding his deadline for our response.
I have said that a response today, given the range of matters he has raised, was not reasonable.
We have agreed on Monday but with a caveat that I call him if we are in danger of not meeting that.
I suggest we meet tomorrow to discuss where we are at?
Rodney
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Gregory Parkhurst
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From: Media
Sent: Friday, 29 November 2019 12:06 PM
To: Carmen s 47F
; Michael Manthorpe
Cc: Rodney Walsh ; Lisa s 47F ; Media ; Jaala Hinchcliffe
Subject: FW: Query public interest disclosure [SEC=UNCLASSIFIED]
Hi all
Please see below media enquiry we have received from Christopher Knaus at the Guardian.
As discussed with Carmen, below is the proposed response for review/approval:
Hi Christopher,
Thank you for your enquiry to the Office of the Commonwealth Ombudsman.
Please see below response to your enquiry:
We are unable to confirm or deny that such a disclosure was received. It is an offence under the PID Act to disclose
information which may identify a discloser or which was obtained in the course of performing a function or an
investigation under the PID Act (ss 20 and 65).
1
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or store, or copy, it in any way. Guardian News & Media Limited is not liable for any computer
viruses or other material transmitted with or as part of this e-mail. You should employ virus
checking software.
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
3
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130TH ANNIVERSARY HENRY PARKES ORATION
HENRY PARKES FOUNDATION
TENTERFIELD SCHOOL OF ARTS MUSEUM,
TENTERFIELD, 26 OCTOBER 2019
SAFEGUARDING OUR DEMOCRACY:
WHISTLEBLOWER PROTECTION AFTER
THE AUSTRALIAN FEDERAL POLICE RAIDS
A. J. BROWN
Professor of Public Policy & Law, Griffith University;
Board member, Transparency International and
Transparency International Australia
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A 7-point plan for restoring public confidence in
Commonwealth whistleblower protection
1. Undertake
comprehensive overhaul or replacement of the Public Interest Disclosure Act
2013 (Cth) – not as a piecemeal reform, but so as to better support a consistent, coherent
and workable national approach to whistleblower protection across Australia’s public sector,
business and not-for-profit organisations.
2. Reform the
criteria for when whistleblowing outside official channels remains protected
– to be simpler, more workable, reflect presumed public interest in disclosure of
wrongdoing, and be consistent for both the public sector (PID Act) and Commonwealth-
regulated private sector (Corporations Act or replacement stand-alone legislation).
3. Revise statutory definitions of
‘intelligence information’ (PID Act, s. 41) and
‘inherently
harmful information’ (Criminal Code, ss.121, 122) to ensure whistleblower protection
at
all levels is extended to genuine public interest disclosures i.e. which meet the simplified
public interest tests and pose no actual, real, unacceptable risk of harm to national security,
defence or law enforcement interests.
4. Strengthen
journalism and other third-party shield laws to ensure (a) confidentiality of
public interest whistleblower sources or clients, and (b) freedom of journalists and other
relevant professionals from prosecution for receiving or using public interest disclosures in
the fulfilment of their duties or functions (PID Act and Evidence Acts).
5. Ensure it is
viable for public servants to use internal and official channels for disclosure
of wrongdoing, by updating the PID Act to be a true whistleblower protection regime:
a. Amend anti-detriment protections to match international best practice, by
removing
the de facto requirement for a deliberate, knowing intention to cause harm before
civil or employment remedies can be accessed (s. 13(1)(b)&(c));
b. Update the anti-detriment protections to match new national best practice
(Corporations Act), by:
• expanding the definition of
unlawful detriment beyond employment actions;
• extending civil liability to
organisational failures to support and protect; • reversing the
onus of proof for civil or employment remedies;
• providing for
exemplary damages.
6. Make protections real by providing
effective support to public interest whistleblowers:
a. Update the statutory minimum requirements for
whistleblowing policies and
programs in the public sector, and increase the Commonwealth Ombudsman’s
monitoring and support roles;
b. Establish a fully resourced
whistleblower protection authority to assist all reporters
and regulators with advice, support, coordination and enforcement action to prevent,
deal with, and gain remedies for detrimental conduct;
c. Continue to consider a
reward scheme for public interest whistleblowers.
7. Recognise the wider validity of public interest disclosure of official information, beyond
employee disclosures of wrongdoing, by making available
a general public interest
defence for any citizen charged with offences of unauthorised disclosure or receipt of
official information (Criminal Code).
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SAFEGUARDING OUR DEMOCRACY: WHISTLEBLOWER PROTECTION AFTER
THE AUSTRALIAN FEDERAL POLICE RAIDS
INTRODUCTION: PUBLIC INTEGRITY IN AUSTRALIA
For decades, Australian journalists have uncovered truth and aided the quest for good
governance around the world – “telling it like it is” with the frankness that makes Australians so
well-loved in so many nations. Indeed, for most of the 130 years since Sir Henry Parkes’ original
Tenterfield Oration, the world has usually looked on Australia as one of the healthiest, most
innovative democracies.
No wonder, then, that the world stood shocked when on 4 and 5 June 2019, the Australian
Federal Police (AFP) executed search warrants on the home of a News Corporation federal
political journalist in Canberra, and the Sydney headquarters of the Australian Broadcasting
Corporation, as part of an investigation into possible criminal offences by journalists for receiving
and publishing unauthorised disclosures of government information. In fact, the timings were
clearly no coincidence. A third AFP raid on News Corporation’s Sydney headquarters was also
planned for the following days, but quietly abandoned due to the media and public backlash.1
These events confirmed, more dramatically than before, that alongside all our trends towards
more open and accountable government, we have also experienced powerful counter-trends that
undermine those advances, increasingly threatening both the health of our democracy and its long-
held reputation. Even before the AFP raids, Australia was slipping on the World Press Freedom
Index, largely due to laws eroding journalists’ ability to investigate governments and protect their
sources.2 Viewed this way, the raids were a natural product of creeping increases in the
criminalisation of public information as a result of national security, intelligence and border
protection laws, about which many people have warned us, including at least one previous Henry
Parkes Orator, Professor George Williams and my Griffith University colleague, Dr Kieran
Hardy.3 But these trends also have an even larger context. Since 2012, Australia has also been
1 For a digest of the reaction, see Brown A J et al (2019),
Clean as a whistle: a five step guide to better
whistleblowing policy and practice in business and government, Griffith University, August 2019, p.46.
2 See Reporters Without Borders, World Press Freedom Index (2019), <https://rsf.org/en/ranking>; Alliance for
Journalists’ Freedom (2019),
Press Freedom in Australia: White Paper,
Sydney, p.3.
3 Keiran Hardy and George Williams, ‘Terrorist, Traitor or Whistleblower? Offences and protections in Australia for
Disclosing National Security Information’ (2014) 37
University of New South Wales Law Journal 784; Keiran
Hardy and George Williams, ‘Special Intelligence Operations and Freedom of the Press’ (2016) 41
Alternative Law
Journal 160; Keiran Hardy and George Williams, ‘Free Speech and Counter-Terrorism in Australia’, in Ian Cram
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slipping on other indices, including the global Corruption Perceptions Index compiled by my
colleagues in Transparency International.4 Many of the fundamental elements or pillars of our
nation’s integrity systems remain strong, but as our current assessment of those systems shows,
many are not keeping up with our national and international challenges.5 Fundamentally, the
values of honesty and truth in our democracy, and others around the world, have probably not
been under such sustained attack for perhaps 80 years.
The weaknesses in our integrity systems are many and varied. In Australia’s case, they do
actually begin with our ability to acknowledge the constitutional truth that our nation was settled
by Europeans, but never ceded by its First Nations, and to deal with all the implications of this. I
am delighted this year to be following Professor Megan Davis’ 2018 Oration, and her call for
support for the Uluru Statement from the Heart, including for constitutional recognition of
Indigenous Australians in the form of a Voice to Parliament. We are still speaking here about
integrity – our ability to tell and recognise the truth, including the truth that this proposal is
perfectly constitutionally acceptable: as former High Court Chief Justice Murray Gleeson has
pointed out, a Voice
to Parliament can enrich our democracy, rather than being a measure that
would undermine it.6 As Megan said last year, unless recognition of Aboriginal and Torres Strait
Islander people includes structural and not simply symbolic change to deal with the reality of the
situation, constitutional reform is, ‘to put it crudely, putting lipstick on a pig’.7
My grandfather raised pigs, and I am sure Megan has nothing against pigs. But the same
choice between symbolism and substance affects all issues of integrity, justice and accountability
in our democracy. Remember that Sir Henry Parkes, the longest-serving Premier of New South
Wales and the one who charted the path for Australia’s colonies to federate on an American
model, had a very progressive, as in dynamic view of how our system of government should
evolve, to serve what was then his quite radical idea of a ‘great and growing Commonwealth’.8
(ed)
Extremism, Free Speech and Counter-Terrorism Law and Policy: International and Comparative Perspectives
(Routledge, 2018).
4 Transparency International, Corruptions Perception Index 2018 (January 2019), Berlin: www.transparency.org.
5 See Brown, A J et al (2019).
Governing for integrity: a blueprint for reform. Draft Report of Australia’s Second
National Integrity System Assessment. Griffith University & Transparency International Australia.
www.transparency.org.au/national-integrity-systems-assessment.
6 Gleeson, M. (2019).
Recognition in keeping with the Constitution: A worthwhile project, 18 July 2019. Uphold &
Recognise, https://static1.squarespace.com/static/57e8c98bbebafba4113308f7/t/ 5d30695b337e720001822490/
1563453788941/ Recognition folio+A5 Jul18.pdf
7 Megan Davis, ‘And remind them that we have robbed them?’ 2018 Henry Parkes Oration, Canberra.
https://parkesfoundation.org.au/activities/orations/2018-oration/.
8 Parkes in Tenterfield spoke of America as the "great commonwealth", then concluded his follow-up St Leonard's
speech with references to Washington and Franklin, echoing Franklin directly with the idea that an Australian
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We should remember he got into trouble in London in 1882, for daring to suggest – accurately –
that democracy was becoming more advanced in the Australian colonies than in the Mother
Country.9 And, we should recognise this is no longer a claim that he could honestly make, were
he standing today in London, or even in Washington or a range of other capital cities around the
world. (I will shortly mention Sir Henry again.)
Taking a long-term view of our direction of travel, we see a strong national integrity system
as involving wider issues than simply the freedom for public interest journalism to operate, if it is
to meet the challenges of our times. Clearly, press freedom is vital, and no-one should doubt my
huge personal sympathy for journalists caught in the cross-fire. My father was a long-serving
political journalist in Canberra, and my sister became a very accomplished journalist too. But
importantly, in Australia at least, the threat of criminal prosecutions against journalists is still
mainly just that: a cross-fire. The primary targets – intended and sometimes unintended – are
actually the employees, officials and everyday citizens who might, and do, speak up with concerns
about wrongdoing in their organisations. I am talking here about protecting the sources of
information on whom not only journalists, but
all of us rely. This is what the rest of this Oration
is about – the whistleblowers at the heart of this struggle.
PROGRESS IN A TIMELESS CHALLENGE
In fact, the importance of whistleblower protection for our democracy – for the health and
integrity of all our institutions – begins not with the media, but with the role of whistleblowing as
something much more fundamental. Inevitably, for any employee or official to raise concerns
about wrongdoing in an organisation, they have to disclose information, and often sensitive or
confidential information. And this will always include information that some people want to label
that way, specifically because they do not want the information shared or transferred. And the
trouble can start even when people blow the whistle purely internally. Just think about your own
organisation, or workplace. Or, for a vivid demonstration, look at US President Donald Trump’s
recent reactions to the intelligence officers worried about the records of his dubious conversations
with other world leaders being hidden on even more dubious servers.10
commonwealth would also be "great and growing": Parkes, H. (1890).
The Federal Government of Australasia:
Speeches. Turner and Henderson, Sydney, pp.4, 28, 169.
9 Parkes, Henry.
Fifty Years in the Making of Australian History (Longman, Green & Co, 1892).
10 See https://www.theguardian.com/us-news/2019/oct/06/trump-ukraine-scandal-second-whistleblower-comes-
forward.
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In Australia, if they do end up going outside our more limited official channels, it is
whistleblowers who are
actually being prosecuted, even when, as yet, journalists are hopefully
unlikely to be. And whistleblowers play an even more fundamental role in public integrity than
the media, because they help ensure honesty, integrity and performance
within our institutions,
every single day. Even if it never reaches the public domain.
We could speak for hours about examples of whistleblowers and whistleblowing, and of the
research we now have, internationally, about its dynamics and the role it plays. But I will give
you just three vital statistics from our own, recently concluded large-scale study, funded by the
Australian Research Council and supported by 23 partner and supporter organisations across
Australia and New Zealand, including the Commonwealth Ombudsman and Australian Securities
and Investments Commission (ASIC), for whose support we are truly grateful. This is taxpayers’
dollars being spent to better understand how other taxpayers (workers and officials) help protect
the interests of all taxpayers, by speaking up. Ours is actually the world’s largest empirical
research project to date focused on organisational responses to whistleblowing, and the first to
systematically compare what happens in both public and private bodies at the same time. You can
find our
Clean As A Whistle report on our project website.11 We surveyed over 17,000 employees
and managers across 46 organisations of all shapes and sizes, including just over 5,000 people
who had reported wrongdoing concerns, and 3,600 managers and governance professionals who
had handled, directly dealt with or observed what happened with reported concerns.
This research gives an overall picture of the role of whistleblowing in organisational
integrity, not simply on “public” whistleblowing involving the media. Consistently with
previous studies, we found that 72% of those who raised concerns
only ever reported internally,
including many who went no further even though the wrongdoing was not dealt with, or they
suffered repercussions. A quarter (26%) reported internally first but also then went outside to
regulatory channels, other public channels or both. Only 2% went outside their organisations
without ever reporting internally. Even within these figures, however, most ‘public’ reporting
was not actually to the media, or at least not directly. Of the 20% of reporters who ever went
public, 19% went to a union, professional association or industry body. Only 1% of reporters
ever went directly to a journalist, media organisation or public website (Figure 1).
11 see Brown A J et al (2019),
Clean as a whistle: a five step guide to better whistleblowing policy and practice in
business and government, Griffith University, August 2019.
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official channels, which is so central to our current debate. As is so often the case, irrespective of
exactly what may play out in court in terms of clarifying the history and merits of these cases, there
is wide acknowledgement that these whistleblowers raised matters which did, or do need
addressing. There is the ASIS operative, Witness K in relation to secret overseas bugging
operations (although we won’t find out much from that prosecution, because the whole prosecution
is secret). Military officer and lawyer, David McBride in relation to the war in Afghanistan.
Richard Boyle in relation to debt collection practices of the Australian Taxation Office.13
In fact, everyday workers and officials have served us as whistleblowers since the dawn of
institutions, and have straddled this difficult line between internal and external reporting. A good
but little known example is Sir Henry Parkes himself. As a young man in 1845, six years after
arriving in the colonies and nine years before he was first elected to parliament, Parkes was
working in the NSW Customs department when he raised concerns about rorts involving
colleagues stealing alcohol (and worse) on the Sydney wharves. I’m told by at least one
descendant14 that Parkes alerted his superiors without success, and then went further by penning
an anonymous letter to the Sydney
Register (Figure 3). He was merely suspended for three
months for this leak, a punishment tending to confirm the merit of what he was saying, as did his
final reference from Customs, which commended him as ‘a person of great integrity and some
talent’. But Parkes’ whistleblowing still led to his resignation, feeling his treatment was ‘most
unreasonable and unjust’.15 The rest, as they say, is history.
There are no end of tales about the repercussions whistleblowers can experience, especially
if dragged or forced into the public domain. The good news, however, is that not all
whistleblowers suffer in our institutions, at least today.16 In our research, when we asked our
respondents how well or badly reporters were treated as a result of raising concerns, less than half
(42%) of reporters said they felt they were treated badly by their management or colleagues.
Managers and governance professionals were slightly more positive, saying reporters were treated
badly in 34% of cases (Figure 4). The fact that a majority of reporters said they were treated the
same, or even well by the organisation, shows bad outcomes are not inevitable.
13 For some references to recent cases, see Christoper Knaus, https://www.theguardian.com/australia-
news/2019/oct/22/witness-k-lawyer-warns-many-whistleblowers-have-nowhere-to-go.
14 My great thanks to Ian Thom for alerting me to this episode in Henry Parkes’ history.
15 See Martin, A.W.
Henry Parkes: a Biography (Melbourne University Press, 1980), p.32 and notes accompanying.
16 Smith, R. (2014). ‘Whistleblowers and Suffering’, in A.J. Brown, D. Lewis, R. Moberly and W. Vandekerckhove
(eds.),
International handbook on whistleblowing research (pp. 230-249), Cheltenham: Edward Elgar.
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Figure 3. “Government Messengers – The Customs” (Henry Parkes)
The Weekly Register of Politics, Facts and General Literature (Sydney, NSW : 1843 - 1845),
Saturday 25 October 1845, p.195. https://trove.nla.gov.au/newspaper/article/228135127
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dispute as a ‘trivial’ grievance — ‘a quarrel at the lower level of the department between Parkes
and his immediate superior over the arrogance of a man whom Parkes suspected of being “a
convict under sentence” and who made confidential reports’ on other workers, such as Parkes
himself.17 Maybe that is true – it probably was. Parkes’ letter suggests he was also directly
targeting the inappropriateness of putting convict employees in such roles, perhaps linked to his
policy disagreement – a view shared with many – that transportation of convicts to New South
Wales should not still be happening at all.
But rather than suggesting that here’s a whistleblower we should simply abandon, we need
to recognise that these questions are always likely to be raised in such situations, or at least, more
often than not. And that we don’t handle them well (see Figure 4). These disputes reinforce the
importance of comprehensive, effective whistleblowing regimes for ensuring that disclosures are
properly managed, and when made to third parties (including the media) occur as much as
possible in a manner that recognises and supports the wider public interest. And this in turn
helps sustain confidence in our systems of public integrity generally.
However, it also shows that unless our laws and regimes for whistleblowing are properly
calibrated, they will help have the reverse effect – of feeding public concern that systems for
controlling abuses of government power are either missing or ineffective, and that those in
government cannot be trusted. And so, especially now, we have a major problem. We have a
crisis of confidence in our whistleblowing regimes, made worse because criminal actions against
whistleblowers are going too far. When this happens, we have to recognise the consequences. As
Law Council president Arthur Moses SC says, it not only has a ‘chilling effect’ on public
disclosures to the media, but all whistleblowing. It makes all workers and officials unsure about
whether their superiors really do want them to speak up. It makes them worry about the correct
way to do it. And it makes them fear that they – and not the problem or issue – will become the
target.
So, people with concerns are left with two options. Say nothing – or if it’s too serious to
let go, leak anonymously, even though in the surveillance age this is increasingly dangerous.
Paradoxically, one effect of a strong-handed approach may be simply that suspected wrongdoing
is left to get worse, and only later revealed (but not necessarily resolved) either by a scandal that
is much worse, or through the more political act of individual public servants making
unauthorised “leaks” to the media. The results are obvious. Our society’s integrity systems start
17 A W Martin, op cit.
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to break down, at every level. Public confidence is further eroded by a dangerous game of “hide
and seek” in which government agencies are tasked, or feel bound, to try to enforce criminal
penalties against leakers and reporters, which are not informed by logical public interest
principles; and in which public confidence in the media is undermined by it being forced to
either (a) resort to new and different forms of subterfuge to receive and handle public interest
information, or (b) cease receiving and reporting on such information altogether, no matter how
serious and important.
Somehow, this is the path Australia has managed to put itself on. This unhealthy and
destructive dynamic is the current situation with respect to the Commonwealth’s public sector
whistleblowing regime – and it calls for major reform.
FINDING OUR WAY AGAIN: A 7-POINT PLAN
Our present situation is a tragedy, because Australia actually has a record of innovation in
whistleblower protection. In principle, we know how to get the balance right. Despite all this,
whistleblower protection laws and regimes have been a cornerstone of our integrity systems, at
state level, for over two decades. Internationally, we have led the way in a range of aspects. It is
perhaps telling that the Commonwealth government came late to the party, only introducing its
public sector whistleblowing legislation, the
Public Interest Disclosure Act, in 2013. Indeed, then
Attorney-General Mark Dreyfus’ achievement of this Act, in the dying hours of the Gillard
government, was something of a miracle, because strong forces of darkness within the Labor Party
had tried to undermine it, and help explain that some aspects were always designed not to work.
Ultimately, notwithstanding the support of cross-benchers such as Andrew Wilkie and then
Shadow Attorney-General, George Brandis, for a strong and effective regime, we ended up with a
scheme that works in some respects, but often, not when it really matters.
So how did we end up in a situation of apparent crisis? Reform of the Commonwealth’s
approach is not a new issue, especially given that the
Public Interest Disclosure Act had such a
difficult birth. Some important reform issues were already identified by a statutory review of the
Act by Philip Moss AM (2016)18, and even more by a Parliamentary Joint Committee on
Corporations and Financial Services inquiry on
Whistleblower Protections (September 2017).19
18 Moss, P. (2016).
Review of the Public Interest Disclosure Act 2013: An independent statutory review, Department
of Prime Minister & Cabinet, Canberra.
19 Parliamentary Joint Committee on Corporations and Financial Services (2017),
Whistleblower Protections.
Canberra: Parliament of Australia.
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Importantly, around half of that inquiry’s recommendations were addressed in respect of the
private sector by reforms to the
Corporations Act 2001 and
Taxation Administration Act 1953,
under the
Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 – some of
them groundbreaking. Instrumental in this was the partnership between Senator Nick Xenophon,
and now Centre Alliance Senator Rex Patrick, in securing advances which are in some respects
quite historic, but also remain piecemeal. As a member of the Turnbull-Morrison Government’s
ministerial expert advisory panel on whistleblowing, I was glad to play some role. It was good
that it happened, flaws and all, as otherwise, nothing would have happened in the last Parliament.
But this does not change the fact – indeed it reinforces it – that despite the strengths in the
new
Corporations Act protections, overall, our whistleblowing laws currently amount to a well-
motivated but largely dysfunctional mess. Many agencies and companies succeed in recognising
and protecting whistleblowers, but often despite the relevant laws, not because of them. And they
are undermined by the tide of confused, inconsistent secrecy provisions on which government
continues to embark, often apparently without realising what it is doing.
Fortunately, there is recognition in government that this all needs to be addressed;20 just as
there are widespread calls in the media, and across society. So, what to do? Sorting this out
requires, in my estimation, seven simple but vital steps. “Simple” does not always mean easy, and
they require stepping back and seeing the full picture. But they can be done, and if done, we
should have some confidence they may work.
1. Undertake
comprehensive overhaul or replacement of the Public Interest Disclosure Act
2013 (Cth) – not as a piecemeal reform, but so as to better support a consistent, coherent and
workable national approach to whistleblower protection across Australia’s public sector,
business and not-for-profit organisations.
The first step is recognising that we have to take a comprehensive approach, and ensure that
whistleblower protections work simply and consistently across all sectors. This was
recommended by the Parliamentary Joint Committee on Corporations in 2017, and others, but is
yet to be done. Simply tweaking known technical difficulties in the
Public Interest Disclosures
Act is not going to cut it. That Act needs major reform, if not a total rewrite. Commissioner Moss
recommended redrafting using a simpler ‘principles-based’ approach, in place of the level of
prescriptive procedural requirements which currently undermine the pro-disclosure culture which
the Act seeks to create.21 But there are other structural weaknesses – the Act completely leaves
20 See Merritt, C., & Berkovic, N. (2019). Attorney-General flags plan to protect sources behind public service
leaks.
The Australian, 21 June 2019, pp.1-2.
21 See Moss Review (2016), pp.6-7.
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out disclosures about wrongdoing by politicians or their staff, and limits regulatory reporting
channels to just the Ombudsman and Inspector-General of Intelligence and Security – not other
obvious points like the AFP itself, Inspector-General of Taxation, Independent Parliamentary
Expenses Authority, or the National or Commonwealth Integrity Commission which is to come.
In fact, these problems still also affect the private sector. There is similar unfinished
business there, because the Corporations Act protections share common problems, have gaps,
and only recognise the role of the financial regulators. For example, there too, they do not even
protect disclosures of federal criminal offences to – guess who – the Australian Federal Police.
Or breaches to the ACCC. This is why the 2017 Joint Parliamentary Committee recommended a
single, comprehensive Act for the private sector, not different schemes in different Acts. This
would make it easier to overcome the sheer problems of inconsistency between what remain
multiple whistleblowing schemes in different areas, especially affecting government-owned
businesses and government contractors. For them, it is not clear if access to remedies for
whistleblowers is limited to the courts, as per the Corporations Act, or can also be pursued in
Fair Work Australia, as per the PID Act. For unions, the Fair Work (Registered Organisations)
whistleblower protection are now inconsistent with everything else, despite having helped show
the way as recently as 2016. And who knows how many other laws are still littered with the
types of out-of-date protections we have now hunted out of the Corporations Act, such as the
entire Division 7 of the
National Disability Insurance Scheme Act (2013).
2. Reform the
criteria for when whistleblowing outside official channels remains protected
– to be simpler, more workable, reflect presumed public interest in disclosure of wrongdoing,
and be consistent for both the public sector (PID Act) and Commonwealth-regulated private
sector (Corporations Act or replacement stand-alone legislation).
Obviously, as the backstop, we have to simplify the principles for when whistleblowing
outside official channels remains protected. We know that no matter how good our internal
systems, such public disclosure will continue to be necessary, from time to time. Our society’s
regulatory systems rely on public disclosure as a vital and sometimes advantageous means of
ensuring action is taken. The law should reflect this reality, and properly extend protection to all
three tiers of disclosure.22 Further, by ensuring that protections are available for justified public
disclosures, the law provides the best incentive for regulators and companies to put in place more
effective internal processes for dealing with wrongdoing and supporting whistleblowers.
22 Vandekerckhove, W. (2010). ‘European whistleblower protection: Tiers or tears?’ in D. Lewis (ed.)
A Global
Approach to Public Interest Disclosure (pp. 15-35), Cheltenham: Edward Elgar Publishing.
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These rules, too, can and should be more consistent between the public and private sectors.
Presently, apart from being cumbersome, they are almost the reverse of each other, but for no
good reason. Part of the good news is that Attorney-General Christian Porter is well qualified to
help sort this out, because he personally introduced the very simple equivalent tests to Western
Australia’s state whistleblowing legislation in 2012 – along with shield laws for journalists.
Indeed, there are different precedents in four Australian state or territory laws (NSW 1994,
Queensland 2010, Western Australia 2012, ACT 2012), as well as the United Kingdom and
Ireland, where the same principles cover both public and private sectors (1998 amended 2013; and
2014). It needs a consistent, fresh look and sensible negotiation. It can be done.
3. Revise statutory definitions of
‘intelligence information’ (PID Act, s. 41) and
‘inherently
harmful information’ (Criminal Code, ss.121, 122) to ensure whistleblower protection
at
all levels is extended to genuine public interest disclosures i.e. which meet the simplified
public interest tests and pose no actual, real, unacceptable risk of harm to national security,
defence or law enforcement interests.
Third, as part of this process, it is imperative for the federal government to revise its
definitions of ‘intelligence information’ (PID Act, s. 41) and ‘inherently harmful information’
(Criminal Code, ss.121, 122) to actually make sense. These are the definitions that mean, if this
type of information is included in a disclosure, it can never be publicly revealed without criminal
sanctions. But currently, they include any information that has ever come within a mile of any
intelligence agency or issue, irrespective of the risk it actually poses. Hence it is sadly no
surprise that Witness K was forced to plead guilty, irrespective of the merits of his actions.
Again, we can do much better. And all sides of politics should support these better solutions,
especially the Labor Opposition. After all, even though it was a miracle that then Attorney-
General Dreyfus rescued the PID Act in 2013, this problem was in the Act from the start. We
know this, because I was one who warned that this would lead to the outcomes we are now
seeing. Again, there are sensible international principles than can help us refine these definitions
back, to mean what they are meant to say;23 and provide mechanisms for ensuring that even in
the highest sensitivity contexts, whistleblowers have somewhere to go.24
4. Strengthen
journalism and other third-party shield laws to ensure (a) confidentiality of
public interest whistleblower sources or clients, and (b) freedom of journalists and other
23 See Brown, A. J. (2013). Towards 'ideal' whistleblowing legislation? Some lessons from recent Australian
experience.
E-Journal of International and Comparative Labour Studies, 2(3), 153–182.
24 See Ben Oquist, https://www.theguardian.com/commentisfree/2019/oct/01/someone-blew-the-whistle-on-trump-
if-it-happened-in-australia-we-might-never-hear-about-it; Chris Knaus, https://www.theguardian.com/australia-
news/2019/oct/22/witness-k-lawyer-warns-many-whistleblowers-have-nowhere-to-go.
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relevant professionals from prosecution for receiving or using public interest disclosures in
the fulfilment of their duties or functions (PID Act and Evidence Acts).
The fourth step is to strengthen press freedoms and protections for journalists, especially in
ways that protect the confidentiality of their sources in cases of public interest. Thanks to the
furore created by the current poor state of the law, and the actions of the AFP in trying to enforce
it, sensible recommendations from the Alliance for Journalists’ Freedom, Right to Know
Coalition, Law Council of Australia and every Australian expert now abound.25 In fact, many of
the same principles need to extend beyond journalists, to other relevant professionals who may
validly receive and need to deal with wrongdoing disclosures in the fulfilment of their duties or
functions. This actually affects everybody.
5. Ensure it is
viable for public servants to use internal and official channels for disclosure
of wrongdoing, by updating the PID Act to be a true whistleblower protection regime.
Fifth, if governments and the public truly want to limit
public whistleblowing on
wrongdoing to when it is really necessary – as I believe we do – then we have to make sure our
internal and official systems and protections for disclosure are actually working. Currently,
despite all the recent improvements, the legal hoops that a worker has to jump through before
they could access remedies for any detrimental conduct against them remain prohibitive. This is
especially true for public officials, and simply updating their protections to match the new
private sector rules would go a long way. Updating the anti-detriment protections in new public
sector legislation to match the new principles in the Corporations Act would include:
• expanding the examples given in the definition of
unlawful detriment beyond
employment actions;
• extending civil liability to
organisational failures to fulfil a duty to support and
protect whistleblowers, which is one of the most important new advances provided by
Australian law, on the international stage;
• reversing the
onus of proof for civil or employment remedies; and
• providing for
exemplary damages.
But there are actually still also defects – by international standards
– in the old PID Act
which were copied across to the new Corporations Act provisions, and which therefore continue
25 See submissions to the Parliamentary Joint Committee on Intelligence & Security, and Senate Environment and
Communications References Committee.
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to infect both. This is why we must amend the anti-detriment protections in both, to match
international best practice, by removing what is a
de facto requirement for a deliberate, knowing
intention to cause harm before civil or employment remedies can be accessed.26 This may be
appropriate for a criminal offence of victimisation, but not for civil or employment remedies for
the types of detrimental conduct by organisations – both acts and omissions – which can
foreseeability result in damage to whistleblowers. As recommended by the Parliamentary Joint
Committee, for protections to be realistic there needs to be a clear separation between this
criminal liability, and the different bases on which whistleblowers should be able to obtain civil
remedies.27 We got ourselves into this particular mess by being the first country to
systematically criminalise victimisation against whistleblowers, but without realising we were
doing it in a way that would narrow the chances of wider remedies being made available.
Internationally, best practice frameworks do not make this mistake.28 Even with other
improvements, we cannot expect these legal protections to work until this is addressed.
6. Make protections real by providing
effective support to public interest whistleblowers:
• Update the statutory minimum requirements for
whistleblowing policies and
programs in the public sector, and increase the Commonwealth Ombudsman’s
monitoring and support roles;
• Establish a fully resourced
whistleblower protection authority to assist all reporters
and regulators with advice, support, coordination and enforcement action to prevent,
deal with, and gain remedies for detrimental conduct;
• Continue to consider a
reward scheme for public interest whistleblowers.
Sixthly, making the protections real also requires a commitment to providing effective
support to public interest whistleblowers in practice, and not just in legal theory. This means
practical improvements to what government agencies are required to do, overseen by the
Commonwealth Ombudsman. Again, the Corporations Act helps point the way – it provided
another world first, by explicitly requiring organisations not only to have their own
whistleblowing policies and procedures, but to detail how they were will support and protect
whistleblowers from the outset.
26 See PID Act, s. 13(1)(b)&(c); Corporations Act, s. 1317AD(1)(b)&(c).
27 Recommendations 10.1 and 10.2.
28 See OECD,
Whistleblower Protection Frameworks, Compendium of Best Practices and Guiding Principles for
Legislation, Paris: OECD, 2011, p.11; Government Accountability Project,
International Best Practices for
Whistleblower Policies (2016); Joint Parliamentary Committee (2017), pp.21-23.
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In addition, this means a fully resourced whistleblower protection authority to ensure
workers can access their rights, especially the most vulnerable and least powerful.
Internationally, the need for effective institutional arrangements is becoming clearer and clearer,
and highlights Australia’s gaps.29 Again, the need for and roles of such an authority were laid
out in some detail, supported by a bipartisan consensus, by the 2017 Parliamentary Joint
Committee. More recently, the
National Integrity Commission Bill developed and introduced to
federal parliament by Independent Cathy McGowan and Centre Alliance’s Rebekha Sharkie, in
November 2018, shows that the types of roles and powers needed for a whistleblower protection
commissioner can be readily translated into legislation.
And as a third element of support, we need to remember the historic recommendation of
the 2017 Parliamentary Joint Committee that it is time for Australia to have a reward or incentive
scheme, which enables eligible whistleblowers, and their lawyers, to claim a percentage of the
financial benefits that their disclosures may bring to regulators or the public.
7. Recognise the wider validity of public interest disclosure of official information, beyond
employee disclosures of wrongdoing, by making available
a general public interest defence
for any citizen charged with offences of unauthorised disclosure or receipt of official
information (Criminal Code).
Finally, we need to remember it is not only worker disclosures about wrongdoing that
might attract penalties under secrecy laws. A general public interest defence needs to be
available for any citizen to assert, using the right criteria, if they are charged with offences of
unauthorised disclosure or receipt of official information. The common law once provided this
kind of relief, before being wiped out by recent decades of secrecy legislation. At one time, a
general public interest defence to criminal or civil liability for a breach of confidentiality was
likely available to whistleblowers in ‘non-emergency’ situations.30 Federal Parliamentary
Committees have concluded since at least 1994 that uncertainty over the scope of any common
law protection is exactly why statutory protections of these kinds need to be created, and
29 Loyens, K., & Vandekerckhove, W. (2018). Whistleblowing from an international perspective: A comparative
analysis of institutional arrangements,
Administrative Science, 8(3), 30-46.
30 In Australian courts it has been said that 'the public interest in the disclosure (to the appropriate authority or perhaps
the press) of iniquity will always outweigh the public interest in the preservation of private and confidential
information':
Allied Mills Ltd v Trade Practices Commn (1980) 55 FLR 125 per Sheppard J. For qualifications, see
-
G v Hayden (No 2) (1984) 156 CLR 532, per Gibbs CJ;
Attorney-General (UK) v Heinemann Publishers (1987) 10
NSWLR 86, per Kirby P at 166-170. The common law principle flowed from the famous English principle that 'there
is no confidence as to the disclosure of iniquity': Wood V-C in
Gartside v Outram (1856) 26 LJ Ch 113 (at 114). See
generally, Brown, A. J. (2007). ‘Privacy and the Public Interest Disclosure: When Is It Reasonable to Protect
‘Whistleblowing’ To The Media?’
Privacy Law Bulletin 4(2): 19-28; Brown, A. J. (2009), 'Returning the Sunshine to
the Sunshine State: Priorities for whistleblowing law reform in Queensland'
Griffith Law Review 18(3): 666-689.
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extended to all reasonable circumstances.31 To return to the starting point of this Oration, the
issue also goes beyond employee reporting, and beyond the reporting of clear wrongdoing. The
nature of creeping criminalisation of official information means that
anyone could potentially be
caught by the increasing raft of criminal laws – not just whistleblowers, but public servants
revealing information in other circumstances, journalists, or businesses and professionals dealing
with confidential information as a result of their dealings with government. The Australian Law
Reform Commission recommended, in 2010, that a wider approach was needed – not to excuse
every public disclosure, but to at least give the courts the flexibility and discretion to
consider
whether the public interest outweighs the merits of secrecy, where this becomes a valid issue in
individual cases.32 Now is the time to re-equip our legal system with this kind of safety valve.
Without this, neither these offences nor our legal system are consistent with justice.
CONCLUSION: FOLLOWING PARKES’ EXAMPLE
From all these recent events, we can see how confused and inconsistent policy and
lawmaking has become in this area. But we can respond, and those seven steps are my
suggestions on how. Whatever the approach, we must act to strengthen our national systems of
public integrity and accountability if Australia is to remain the world-leading democracy
envisioned by our constitutional founders. The new attention on these issues, brought by the
AFP’s unfortunate attempts to enforce our current mess of laws, can let us turn things around.
These steps are clear, and achievable within this term of Parliament, even if some require a
comprehensive view, or a return to basic principles. Our political leaders, especially current and
former Attorneys-General with the calibre and skills of Christian Porter and Mark Dreyfus, are
capable of doing it. So, however we got into this mess, by taking the right approach, we can get
ourselves out. But we have to understand, this is not simply for the sake of press freedom, nor
even for the sake of justice for everyday workers and officials. It is vital to safeguarding the
future of Australian democracy.
_________________________
31 See e.g. Senate Select Committee on Public Interest Whistleblowing,
In the public interest, 1994, par 8.27.
32 Australian Law Reform Commission (2010).
Secrecy Laws and Open Government in Australia, Report 112.
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Gregory Parkhurst
s 22
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AUSTRALIA’S 3RD UNIVERSAL PERIODIC REVIEW
Joint NGO Submission on behalf of the
Australian NGO Coalition
APRIL 2020
This Joint NGO Submission is endorsed, in whole or in part, by 202 NGOs across Australia.
The submission was coordinated by the Human Rights Law Centre, the Kingsford Legal Centre and the
Caxton Legal Centre, working with an Advisory Group comprised of 16 NGOs, which provided expert
guidance on the content and focus of the submission.
The sections in the submission were developed by 21 expert and recognised NGOs, working with 36 other
diverse NGOs. Particular attention was taken to ensure intersectionality across the sections, reflecting the
compounding nature of discrimination and disadvantage in Australia, and the direct participation of Aboriginal
and Torres Strait Islander Peoples and their organisations.
This submission was finalised in April 2020, at a time when the COVID-19 pandemic was sweeping Australia
and the world, resulting in delays in UN Universal Periodic Review processes. This submission was therefore
submitted in July 2020 and an annexure included (Annexure C) that addresses COVID-19 and human rights
developments in Australia between April and July 2020.
CONTACT
Edwina MacDonald
Emma Golledge
Bridget Burton
Human Rights Law Centre
Kingsford Legal Centre
Caxton Legal Centre
xxx@xxxx.xxx.xx
e.gol xxxx@xxxx.xxx.xx
xxxxxxx@xxxxxx.xxx.xx
Ph: + 61 2 8599 2184
Ph: + 61 2 9385 9566
Ph: + 61 7 3214 6333
Level 5, 175 Liverpool Street
F8-003 UNSW Australia
1 Manning Street,
Sydney NSW 2122
UNSW Sydney 2052
South Brisbane QLD 4101
www.hrlc.org.au
www.klc.unsw.edu.au
www.caxton.org.au
1
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Submission
This joint submission has been prepared by, and in consultation with, a broad-based coalition of Australian
non-government organisations (Annexure A). It has been endorsed, in whole or in part, by 202 NGOs
(Annexure B).
Highlighted issues are often relevant to more than one population group, reflecting the intersectionality of
inequality and compounding nature of discrimination and disadvantage. In particular, Aboriginal and Torres
Strait Islander Peoples are significantly overrepresented across all low social indicators as a result of the
continuing impact of colonisation, marginalisation and racism. These unique factors require specific
Aboriginal and Torres Strait Islander control ed and targeted strategies that reflect the self-determination of
Aboriginal and Torres Strait Islander Peoples.
CONSTITUTIONAL, LEGISLATIVE AND INSTITUTIONAL FRAMEWORK
Australia’s Constitution does not support the self-determination, or recognise the rights of Aboriginal and
Torres Strait Islander Peoples, and enables Parliament to enact discriminatory, race-based legislation.1
Australia must hold a referendum to revise the Constitution to recognise Aboriginal and Torres Strait
Islander Peoples' rights, remove racist elements and include an anti-discrimination clause. Australia
must establish an Aboriginal and Torres Strait Islander elected representative Voice to Parliament
and establish a Makarrata and Truth and Justice Commission to develop a treaty with the First
Peoples of Australia.2
Australia continues to fail to fully incorporate its international human rights obligations into domestic law. An
Australian Charter of Rights would help ensure decisions and actions of our governments meet their
obligations and are guided by values like fairness, equality and dignity.
Australia must introduce a comprehensive, judicially enforceable national Charter of Human Rights
and Freedoms that protects the whole community. Similar charters must be introduced in states and
territories.
Australia must incorporate the UN Declaration on the Rights of Indigenous Peoples into domestic
law, establish an independent body to oversee its implementation in consultation with Aboriginal
and Torres Strait Islander Peoples, and include UNDRIP in the Human Rights (Parliamentary
Scrutiny) Act.
Not all Australian jurisdictions have compensation schemes for members of the Stolen Generations.3
Australia must urgently compensate all members of the Stolen Generations, as recommended by the
Bringing Them Home Report.4
Concern persists about Australia’s failure to ratify key international human rights instruments, reservations to
existing ratifications, and the lack of implementation of previous UPR and UN recommendations.
Within three years, Australia must ratify the Convention on Migrant Workers, ILO 169 on Indigenous
and Tribal Peoples, Convention against Enforced Disappearances, OP to ICESCR, Nagoya Protocol
and Third OP to the CRC. Within two years, Australia must withdraw all treaty reservations, including
to CRC Article 37(c) regarding children in detention.5 Australia must also immediately task its Joint
Parliamentary Committee on Human Rights with monitoring domestic consideration and
implementation of UN human rights recommendations.
Australia ratified OPCAT, following its 2016 UPR voluntary commitment. There is a lack of commitment to
implementing a National Preventive Mechanism and concern this will result in a NPM lacking the essential
powers, resources, independence, and uniformity necessary to fulfil its OPCAT obligations.6
2
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Australia must prioritise developing and adequately funding a NPM that covers aged care and
children’s and disability specific facilities, and establish an advisory relationship with civil society
including for designation and implementation stages.
Australia lacks an institutional mechanism for investigating and prosecuting international crimes committed
by and against Australians.
Australia must develop an international crime mechanism resourced to provide effective access to
justice for victims.
Social and community services suffer deep ongoing funding cuts, funding instability and unjustified funding
conditions.7
Australia must adequately fund social and community services to underpin the realisation of human
rights.8
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES
Australia has enacted a series of punitive and paternalistic policies that racially target Aboriginal and Torres
Strait Islander communities.9 In considering the ‘Northern Territory Intervention’,10 Special Rapporteur Anaya
found the quarantining of welfare payments,11 compulsory leasing of Aboriginal lands, and removal of
governance12 to ‘overtly discriminate against Aboriginal people’,13 infringe their right to self-determination14
and conflict with the ICERD, ICCPR and the UN Declaration on the Rights of Indigenous Peoples.15
Continued through the ‘Stronger Futures’ legislation’,16 funding has been cut to Aboriginal
‘Homeland/Outstation’ communities.17
The Cashless Debit Card racially discriminates with 81% of compulsory recipients being Aboriginal and
Torres Strait Islander Peoples.18 It quarantines 80% of cash welfare,19 stigmatises, exacerbates financial
hardship and entrenches disempowerment,20 leading to increased violence and crime.21 A lack of technology
and power outages prevent access to funds and food in remote communities.22 A Parliamentary Committee
found it limited human rights and was disproportionate.23 Despite costing $10,000 per participant, it is being
extended.24
The Community Development Program racially targets, with 85% of 35,000 participants being Aboriginal and
Torres Strait Islander Peoples.25 It requires remote participants to work for welfare payments, with additional
onerous obligations.26 It has applied financial penalties disproportionately, giving 350,000 penalties over two
years,27 resulting in cuts to payments, causing hunger.28
The Intervention/Stronger Futures and welfare reforms that impose cashless debit cards, additional
burdens or penalties on Aboriginal and Torres Strait Islander Peoples must be abolished, and
Homeland/Outstation communities must be refunded within 12 months.
Australian land management and legislative regimes do not uphold the rights of Aboriginal and Torres Strait
Islander Peoples to manifest, practice and teach cultural traditions and customs on traditional lands,
territories and waters. Climate change is having a detrimental and inequitable impact on Aboriginal and
Torres Strait Islander communities, with unendurable temperatures in central Australia.29 Aboriginal and
Torres Strait Islander Peoples have not been included in water/land regulatory bodies.30 The commercial
sale of water has also left Aboriginal and Torres Strait Islander communities dry, with health impacts from
sub-standard water.31 Traditional Owners are concerned that hydraulic fracking wil contaminate and deplete
ground water.32
Australia must amend all policy and legislative regimes that impact Aboriginal and Torres Strait
Islander rights to practice cultural traditions; facilitate Aboriginal and Torres Strait Islander decision
making in regulatory water and land management bodies; and provide finances for Aboriginal and
Torres Strait Islander communities to develop climate change mitigation strategies.33
3
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The Native Title Act 1993 is fundamentally flawed, favours mining interests, and is inconsistent with the
principle of ‘equality before the law’.34
Australia must: amend the Native Title Act to include free, prior and informed consent; remove power
to compulsorily acquire native title lands and extinguish native title rights; and include
compensation regardless of date of extinguishment.
The 2017 Uluru Statement called for a Makarrata Commission or Treaty, Truth and Justice Commission.35
Australia remains the only former British colony without a treaty. A Treaty is crucial for addressing the social-
economic disparity and political marginalization of Aboriginal communities by enacting self-determination, in
line with the UNDRIP.
Australia must establish a Makarrata Commission to develop a treaty with Aboriginal and Torres
Strait Islander Peoples within 3 years.
REFUGEES AND ASYLUM SEEKERS
Australia undermines the institution of asylum by intercepting asylum seekers at sea and implementing rapid
returns, with rudimentary screening and without access to legal advice or fair process. Australia has returned
people at airports without properly assessing their claims. Asylum seekers who arrived by boat after August
2012 (and not sent to Nauru or Papua New Guinea), are not eligible for permanent protection and have no
pathway to citizenship.
Australia must ensure its asylum processes and border management policies fully comply with its
international obligations, including the principle of non-refoulement.
Asylum seekers, including children and stateless persons, remain subject to mandatory, indefinite and non-
reviewable detention. Some people have been held in immigration detention for over ten years. Since 2015,
detention facilities have become more prison-like; use of force has become commonplace.36
Australia must repeal mandatory detention and introduce legislative criteria to guide individual
decisions to detain. Immigration detention must be subject to maximum timeframes and independent
review.
As of July 2020, around 370 refugees and asylum seekers forcibly sent to Nauru and Papua New Guinea in
2013 and 2014 remain there, many without access to durable solutions and some at risk of being arbitrarily
detained (including stateless persons).37 Healthcare remains inadequate and Australian legislation that
granted doctors greater power over medical evacuation decision-making was repealed in December 2019.
Offshore processing must end and all those who are yet to access durable solutions must be
brought to Australia.
Many asylum seekers, including those in the deficient ‘fast-track process’, wait years for asylum decisions.
Thousands, including children and other vulnerable groups, have lost access to legal advice, healthcare,
casework and financial support due to Government decisions. Recognised refugees who arrived by sea
many years ago are affected by discriminatory policies that prevent immediate family members from joining
them.
Australia must repeal the fast-track process and restore funding for legal assistance, income support
and basic healthcare for asylum seekers, and repeal policies preventing family reunion for refugees.
Australia lacks a statelessness determination procedure to identify, monitor and protect the rights of
stateless people38 in accordance with international law.39
Australia must introduce a statelessness determination procedure and visa category to protect
stateless persons in Australia by 2024.40
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CULTURALLY AND LINGUISTICALLY DIVERSE PEOPLE AND COMMUNITIES
Positive statements by the Prime Minister condemning racism and the Australian Government’s multicultural
statement41 are undermined by policies which threaten social cohesion and prevent CALD people from fully
participating in the Australian community.
Australia must ensure that CALD people – particularly in rural and regional areas – have equitable
access to services, support and opportunity.
The extension of waiting periods for social support services, limitations on family visa pathways and delays
in citizenship processing inflict unnecessary hardship. This hardship disproportionately affects women from
CALD backgrounds, particularly those experiencing family violence.
Australia must ensure a fair and non-discriminatory migration and citizenship policy which
recognises the importance of family, and promotes full public participation.
Debate about population, national security and crime has seen a sharp rise in anti-immigration sentiment.42
Muslim Australians continue to experience high levels of racism and bigotry,43 and Australians of African
heritage (particularly Sudanese Australians), have increasingly been the subject of sensationalist political
and media attention, which has fuelled racism, profiling and discrimination.44
Australia must strengthen measures to combat discrimination and violence on racial, ethnic or
religious grounds, particularly through education and dialogue.
OLDER PEOPLE
Australia has not fulfilled its 2016 UPR commitment45 to use existing human rights mechanisms to report on
and protect the rights of older persons, nor to include an older people section in their UN reports. Australia is
largely disengaged from the Open-Ended Working Group on Ageing (OEWGA).
Australia must reengage as an active participant of the OEWGA and work towards developing
improved international protections for older people.
Australia’s Aged Care Royal Commission46 labelled aged care a “shocking tale of neglect.”47 However, the
Royal Commission has so far failed to make conclusions about human rights breaches of older persons in
aged care. Over 110,000 older persons have waited between 7-32 months48 to receive aged care services in
their home,49 and Australia lacks legislative protections against the use of chemical restraints,50
demonstrating the need for stronger international protections.
Australia must strengthen its aged care system, ensuring it reflects Australia’s human rights
obligations, including appropriate funding to remove waitlists.
Unlawful age discrimination continues to affect older people, particularly women, in the market and at work.
Australia must fund the recommendations of the 2016 Willing to Work National Enquiry into
employment discrimination.51
SEXUAL ORIENTATION, GENDER IDENTITY AND EXPRESSION, AND SEX
CHARACTERISTICS
Since 2016, Australia has recognised marriages between two people regardless of gender.52 States have
amended laws to make it easier for legal gender to be changed,53 to allow adoption by couples regardless of
gender,54 and to expunge convictions for historical homosexual offences.55 Some states may soon prevent
so-called ‘conversion’ practices which seek to eliminate or suppress the affirmation of lesbian, gay, bisexual
and transgender identities.56
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Despite such reforms (and sometimes accompanying them57), discrimination, harassment and violence on
the grounds of sexual orientation, gender identity and expression, and bodily variations in sex
characteristics, remain prevalent.58
Within 18 months, Australia must:
advance reforms in remaining states which impose unjust hurdles (including requirements for
surgery) on people seeking official identity documents reflecting their gender;59
implement recommendations on ending harmful practices (including forced and coercive medical
interventions) to ensure the bodily integrity of children with intersex variations;60
ensure access to redress, independent affirmative peer support and psychosocial support for
people with intersex variations and their families;61
capture SOGIESC data62 in its 2021 national census and other significant collections to provide a
robust evidence-base for future public policy and government interventions; and
implement effective measures to reduce SOGIESC-based bullying, harassment and violence,
particularly targeted at youth.63
PEOPLE WITH DISABILITY
The National Disability Strategy (NDS) is Australia’s policy framework to implement the Convention on the
Rights of Persons with Disabilities. In 2019, the CRPD Committee raised serious concerns about the lack of
implementation, funding and oversight of the NDS.64
The new NDS must be properly resourced through a robust National Disability Agreement between
all levels of Government. Transparent monitoring and evaluation of outcomes for people with
disability must be linked to accountability measures across Governments, ensuring targets are met.
People with disability, and their representative organisations, must also be positioned at the centre
of the NDS’s development, implementation and monitoring.
Legislation regulating legal capacity remains problematic.65 Australia’s Interpretative Declarations to CRPD
Articles 12, 17 and 18 prevent reform and allow human rights violations.66 No progress has been made
towards a national Supported Decision-Making Framework.67 Despite persistent UN recommendations,68
behaviour management, involuntary treatments and restrictive practices occur across a range of settings.69
Australia must withdraw CRPD Interpretative Declarations before 202670 and modify, repeal or nullify
laws, policies and practices which deny or diminish equal recognition before the law. Australia must
eliminate restrictive practices, involuntary treatment, forced sterilisation and medically unnecessary
interventions of people with disability.
People with disability, particularly women,71 experience significant72 violence and abuse.
The Disability Royal Commission must address the systemic drivers of this violence and establish
national mechanisms for redress, complaint and oversight.
CHILDREN
Australia must fully incorporate the CRC into domestic legislation and policy within three years.
The National Framework for Protecting Australia’s Children 2009-2020 lacked sufficient focus on preventing
violence against children, economic, social and cultural rights, non-discrimination, and participatory rights.
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Australia must develop a National Plan for Children which comprehensively protects children’s
rights, and which is at least consistent with the National Plan to Reduce Violence against Women
and Their Children, within 18 months.
Aboriginal and Torres Strait Islander children are over 10 times more likely to be removed from their families
than other children and 23 times as likely to be in detention.73
Australia must establish a national prevention, early intervention and reunification program to
prevent child protection involvement, with significant Aboriginal and Torres Strait Islander
community-controlled service provision, within two years. Australia must establish a national
commissioner for Aboriginal and Torres Strait Islander children and young people within one year.74
To comply with international legal obligations,75 Australia must immediately legislate to prohibit
detention of asylum-seeking, refugee and migrant children.
Australia fails to adequately protect children’s right to be heard about matters affecting them.76
Australia must undertake legal reform to provide mechanisms for children to participate and be
heard, and to provide all necessary funding to services that support direct advocacy for children
within two years.
Children with disability experience segregation and human rights violations in educational settings.
Australia must develop a national Action Plan for Inclusive Education and urgently end restraint and
seclusion of children with disability.77
Australia must legislate to mandate consultation between the National Children’s Commissioner and
children on matters affecting them, while ensuring the Commissioner has adequate resources, within
one year.
WOMEN
Many women in Australia experience human rights violations due to an intersection of gender and other
aspects of their lived experience.
Discrimination against Aboriginal and Torres Strait Islander women is structural y and institutionally
entrenched. Colonisation, intergenerational trauma and a lack of culturally appropriate services fosters a
disturbing pattern of violence against Aboriginal and Torres Strait Islander women, who are significantly
more likely to die or be hospitalized due to violence than other women78 and are imprisoned at 21 times the
rate of other women.79
Funding for women’s specialist services is declining and community self-determination is not valued by
funders.80
Australia must implement gender responsive budgeting which considers the needs and impacts of
expenditure on a diverse range of women, underpinned by intersectional data and research.
The family law system does not prioritise safety and risk in its practice and decision-making.81
Australia must implement the Safety First in Family Law Plan.82
The National Plan to Reduce Violence against Women and Their Children is inadequately resourced to meet
demand,83 and is not inclusive of all forms of gender-based violence.84 UN experts have recommended a
National Action Plan for Indigenous Women, but Australia has not implemented this.85
Women on temporary visas experiencing violence face barriers to accessing protections, services and
justice.86
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The second National Plan must incorporate adequate funding, specific measures to address violence
against women of diverse experiences, and a monitoring and evaluation system for all action plans.
Australia must address economic inequality, including addressing women’s unpaid caring work and
gendered gaps in wages and retirement savings.87
EQUALITY AND NON-DISCRIMINATION
Australia protects against discrimination through multiple inconsistent and overly technical anti-discrimination
legislation. Australia’s piecemeal approach does not provide remedies for intersectional discrimination, and
creates significant exceptions and barriers to individuals bringing complaints.
Australia must enact a comprehensive Equality Act that addresses all prohibited grounds of
discrimination, promotes substantive equality and provides effective remedies, including against
systemic and intersectional discrimination.
Religious discrimination is not currently addressed by standalone federal discrimination law. In 2019 the
federal government released a draft Religious Discrimination Bill. The proposed Bill goes far beyond
protecting against religious discrimination and provides people and faith-based institutions with a licence to
discriminate on religious grounds, including when delivering healthcare. The Bill privileges religious views
over patient health needs, and removes existing anti-discrimination protections, including for women, people
with disabilities, SOGIESC, and people from minority faiths.
Australia must not enact the proposed Religious Discrimination Bill.
DEMOCRATIC RIGHTS AND FREEDOMS
Queensland and New South Wales have passed anti-protest legislation that unfairly restricts peaceful
assembly, and increases penalties for trespass and using lock-on devices during peaceful protests.88
Australia must repeal laws criminalising peaceful protest and recommit to facilitating peaceful
protests.
Australian Federal Police have raided the homes and workplaces of journalists following public interest
reporting on intelligence and defence agencies.89 New federal laws have expanded the definition of
“espionage” to include public interest reporting by journalists and human rights defenders90 that could bring
the country into disrepute internationally.
Australia must repeal laws criminalising public interest reporting and strengthen journalist warrant
obligations.
The Australian Government is prosecuting whistleblowers who disclose public interest matters, most
notoriously Witness K and his lawyer, Bernard Collaery.91
Australia must strengthen existing protections for whistleblowers and enable public disclosure of
serious wrongdoing within intelligence and defence agencies.
The Australian Government has defunded NGO advocacy work and Aboriginal and Torres Strait Islander
representative and advocacy bodies.92 Charities are being investigated and deregistered for advocacy work
in elections and for working with protesters.
Australia must recommit funding for and legal protection to the NGO sector and Aboriginal and
Torres Strait Islander organisations for advocacy work.93
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The Australian Government has implemented overbroad foreign interference legislation which exempts
politicians, while potentially making NGO reporting to UN bodies a national security offence,94 and restricts
free speech on electoral matters.
Australia must amend the foreign interference laws to exclude NGO advocacy and include
politicians.
Government-funded independent broadcasters ABC and SBS have been attacked politically and
experienced significant funding cuts.
Australia must restore funding to public broadcasters.
The Australian Government has passed extensive laws requiring telecommunication companies to retain
metadata and facilitate access to encrypted messages.95 It is considering a national database of
photographs to enable law enforcement agencies to conduct facial recognition without adequate
safeguards.96
Australia must repeal the metadata and encryption laws and severely restrict the use of facial
recognition technology.
The Australian Government continues to broaden laws stripping Australians of citizenship, without adequate
procedural safeguards and sometimes retrospectively, placing them at an unacceptable risk of
statelessness, family separation and indefinite detention.97
Australia must repeal citizenship deprivation laws.
ACCESS TO JUSTICE AND THE CRIMINAL JUSTICE SYSTEM
Legal assistance funding is inadequate. The separate Indigenous Legal Assistance Program is being wound
up despite evaluation recommending retaining it.98
Australia must restore dedicated funding for Aboriginal and Torres Strait Islander Legal Services.
The legal assistance sector remains critically underfunded, with insufficient access to legal services to meet
demand and provide redress for human rights abuses.
Australia must implement the recommendations of the Productivity Commission to inject $200
million the legal assistance sector.99
The criminal justice system is failing young people, Aboriginal and Torres Strait Islander Peoples, women,
and people with disabilities. 100
Australia must reform the criminal justice system to make prison a last resort, and provide greater
rehabilitative and diversionary options for overrepresented groups. It must address the over-
representation of Aboriginal and Torres Strait Islander Peoples, including by setting justice targets,
funding a national Custody Notification Service, and ending mandatory sentences.
Children are too often detained, subject to isolation and force, and not separated from adults.101
Australia must mandate separate detention of children from adults, review its juvenile justice
systems against the CRC and CRPD,102 and implement all recommendations of the Royal
Commission into the Protection and Detention of Children in the Northern Territory, within two years.
Australia’s age of criminal responsibility is 10, contrasting with UN recommendations,103 and medical
evidence about children’s development.104 This disproportionately harms disadvantaged children.
Australia must raise its minimum age of criminal responsibility to at least 14 within one year.
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Little progress105 has been made towards Australia’s 2016 voluntary UPR commitment to improve criminal
justice system treatment of people with cognitive disability unfit to plead or found not guilty by reason of
mental impairment.106
Australia must address the over-representation of people with disability, including eradicating
imprisonment of unconvicted people with disability and enforcing safeguards against indefinite
forensic detention.
PRISONS
Due to historical y entrenched and systematic factors, including racism, Aboriginal and Torres Strait Islander
Peoples are the most imprisoned people in the world. Despite making up 2% of the population, they
constitute 28% of all imprisoned people.107 Approximately 50% of imprisoned people in Australia have a
disability,108 and up to 73% and 86% of imprisoned Aboriginal and Torres Strait Islander men and women,
respectively, report a psychosocial disability.109
At least 437 Aboriginal and Torres Strait Islander Peoples have died in custody since the 1991 Royal
Commission into Aboriginal Deaths in Custody.110
Australia must fully implement the findings of the Royal Commission into Deaths in Custody and the
NT Royal Commission, including closing Don Dale detention centre.
Women are the fastest growing imprisoned group. Aboriginal and Torres Strait Islander women made up a
third of all imprisoned women in 2018.111 Most are imprisoned for low level offending.112 Domestic violence is
both the cause and effect of women’s imprisonment.113
Australian governments must enter into a formal partnership with Aboriginal and Torres Strait
Islander organisations to develop national justice and family violence targets to reduce
imprisonment.114 Additionally, prison must only be a last resort for primary carers.115
Investigations of youth detention services, including one Royal Commission, have found repeated breaches
of children’s human rights.116 The rights of children in police watch houses in Queensland are being seriously
breached.117 Most jurisdictions have multi-billion dol ar prison expansion or construction programs without
commensurate investment in preventative or diversionary programs.
Australia must end prison construction and expansion and instead resource preventative and
diversionary programs to reduce imprisonment.
POLICE
It is critical that independent bodies118 are resourced119 to investigate potential human rights abuses by
police.
Australia must ensure that all jurisdictions establish independent investigative bodies that meet
international human rights standards.120
Racially discriminatory policing remains prevalent, impacting entire communities.121 In particular,
‘intelligence-led’ or ‘preventive’ policing models122 are having adverse and discriminatory impacts, especially
on racially marginalised groups.123
Australia must conduct a comprehensive audit into policing law, policy and procedure to identify and
eliminate discriminatory impacts, and immediately implement stop & search monitoring and
receipting124 to address racial profiling.
Aboriginal and Torres Strait Islander Peoples continue to die in custody.125
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Australia must urgently implement all recommendations from the Royal Commission into Aboriginal
Deaths in Custody.126
Police responses to family violence need urgent reform. Survivors of family violence experience police duty
failures, including misidentifying victims as perpetrators, privacy breaches and failing to provide effective
protection.127
Australia must address police duty failures and improve responses in order to enhance the safety of
victims / survivors when requesting police assistance for family violence,128 and to prevent the
criminalisation of survivors129 as a consequence of police responses.
POVERTY
3.2 million people, including 774,000 children live, below the poverty line in Australia.130 Australia ranks 16th
out of 26 OECD countries, despite high national and household wealth.131 Poverty is most acute for people
who are not in paid work and rely on social security.132 Poverty among sole parent families is high, at 32% in
2015-16.133
Australia must permanently increase allowance payments so that people can afford the basics, and
index to wage inflation.
Allowance payment rates and indexation methods are not currently benchmarked to adequacy.
Australia must also establish a Social Security Commission to advise Government on payment rates,
including indexation.
Cashless debit and income management schemes have expanded in recent years despite their
discriminatory impact on Aboriginal and Torres Strait Islander Peoples and single mothers, their restriction
on individual decision making, and weak evidence of effectiveness.134
Australia must replace compulsory cashless debit and income management schemes with voluntary
models which are non-discriminatory in design and implementation.
Australia’s unlawful automated debt collection process – robodebt - has undermined the right to social
security and severely impacted the people on whom it has been imposed, especially women.135
Australia must end all automated debt collection processes based on flawed debt calculation
methods and refund anyone who has repaid a robodebt.
HOUSING AND HOMELESSNESS
Since the last UPR, homelessness has further increased (particularly among Aboriginal and Torres Strait
Islander Peoples136 and older women137), housing affordability has not improved,138 and social housing stock
has continued to decline.139 The previous national homelessness strategy140 has not been replaced, and
there is no national plan to reduce homelessness or housing stress. Funding for the National Rental
Affordability Scheme will be discontinued. Government payments assisting renters on low incomes are
inadequate, leaving nearly half of renters on low incomes in urban areas in rental stress.141
Australia must develop a national homelessness and affordable housing strategy, with goals and
targets underpinned by substantial funding in services, stock and support. Australia must also
increase investment in new social housing that meets diverse housing needs.
The national inter-governmental funding agreement on remote Aboriginal and Torres Strait Islander housing
has expired, and federal funding for remote housing has been withdrawn in many states.
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Australia must develop a new inter-governmental Aboriginal and Torres Strait Islander housing
strategy, which includes remote homeland communities, and is included in the Closing the Gap142
Targets.
HEALTH
Australians live approximately 13.2% of their lives in ill health.143 Poor health outcomes are linked to low
incomes,144 gaps in Australia’s healthcare system,145 and low levels of investment in illness prevention.146
Australia must establish an ongoing mechanism for assessing and funding illness prevention.
Climate change and public health are interlinked. Recently, smoke from bushfires has harmed the health of
millions of Australians.147
Australia must improve systems for implementing accurate, evidence-based and timely public health
interventions to mitigate the health impact of climate change.
Aboriginal and Torres Strait Islander Peoples carry a disproportionate health burden related to poverty and
poor living conditions,148 including high rates of gastroenteritis, encephalitis, hepatitis, heart disease,
diabetes, kidney failure and trachoma. In 2018, suicide was the leading cause of death for Aboriginal and
Torres Strait Islander children and people aged 15-44.149 Traumatic experiences,150 intergenerational
trauma,151 discrimination, grief and overcrowding152 and a sense of disempowerment were attributable
factors.153
The Australian Government must fund the Aboriginal and Torres Strait Islander controlled health,
service and healing sector154 to meet family, child, youth, health, aged, disability and rehabilitation
needs nationally.
Almost a quarter of Australian children are affected by being overweight or obesity.155
Within two years, Australia must implement the WHO’s Ending Childhood Obesity Report
recommendations156 and enact legislation to protect children from unhealthy food marketing.
Transgender and gender-diverse people experience major barriers to accessing culturally safe healthcare in
Australia.157
Within two years, Australia must ensure free and timely access to culturally safe healthcare,
including access to gender affirming multidisciplinary healthcare for children and adolescents.158
CLIMATE CHANGE
Australia is failing to prevent human rights harms caused by climate change.159 Australia’s emissions are
increasing,160 its 2030 emissions reduction target is inadequate,161 and it spends more money supporting
fossil fuels than climate action.162
Australia must immediately increase its 2030 emissions reduction target to at least 45%, and set a
target of net zero emissions before 2050. By 2021, Australia must put a price on carbon and use the
revenue to support vulnerable groups; put in place a plan to phase out coal exports; shift to 100%
renewable energy before 2035; and end fossil fuel subsidies by 2025.
Australia is failing to implement appropriate measures to ensure all persons have the capacity to adapt to
climate change and provide a just transition for workers and communities.
Australia must develop a rights and equity based adaptation plan, establish a just transition
authority with sensitivity to multiple and intersecting forms of discrimination,163 and adequately
resource both.164
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Australia is failing to ensure equity in climate action and ensure meaningful participation in decision making.
Australia must develop mitigation and adaption plans and policies that provide benefits for
vulnerable groups and reduce inequality, and legally require consultation with diverse groups
(including children, Aboriginal and Torres Strait Islander Peoples, elderly people, people with
disabilities, people experiencing poverty, and women) and the publication of their views.165
Australia is failing to assist developing countries to mitigate and adapt to climate change.
Australia must increase its climate finance contribution to 2.4% of global flow, additional to existing
ODA budget,166 and ensure it captures the needs and priorities of vulnerable communities.
BUSINESS AND HUMAN RIGHTS
Australian companies continue to have significant adverse human rights impacts within Australia and abroad.
Of particular concern are corporate contributions to the climate crisis, attacks on civic space, human rights
violations in corporate supply chains, impacts on public health and abuses associated with the extractives,
financial and immigration detention sectors.
Despite its 2016 voluntary commitment, Australia has failed to develop a National Action Plan on Business
and Human Rights.
Australia must renew its efforts to develop a National Action Plan on Business and Human Rights
and provide effective pathways to remedy for corporate human rights violations.
While Australia’s new Modern Slavery Act 2018 – requiring companies to report on their actions to address
modern slavery – was a positive step, the legislation relies on voluntary reporting.
Australia must introduce mandatory human rights and environmental due diligence obligations for
companies to effectively combat forced labour and other human rights violations in corporate supply
chains.
Australia must also require companies emitting greater than 25,000 tCO2-e per annum to reduce their
emissions consistent with the goals of the Paris Agreement, while respecting human rights in a
swift, just transition to a net zero economy.
INTERNATIONAL ASSISTANCE
Australia has cut the Official Development Assistance (ODA) budget, diminishing Australia’s capacity to
support human rights internationally.167 Low investment has contributed to the failure of the aid program to
meet the 80% target of projects effectively addressing gender equality.168
Australia must increase its ODA budget to 0.7% of GNI to boost capacity to promote human
rights. Australia must also invest in technical expertise and women’s rights organisations to meet
the aid program’s gender target.
As Australia seeks to implement new aid modalities, including blended finance for infrastructure, vigorous
safe guards will be needed to mitigate risks to human rights that have previously caused concerns for
government-financed projects.169
To meet treaty and SDG commitments Australia must put human rights, rather than national interest,
at the centre of its ODA program.
Regulations introduced in 2018 require Australian charities with overseas activities to prevent harm,
exploitation and abuse of vulnerable persons.170 These address high-risk activities including volunteering
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and residential care. The implementation of monitoring and enforcement is required to assist in meeting
CRPD and CRC obligations.171
Australia must establish safeguards and monitoring mechanisms to uphold international human
rights standards within ODA and blended-finance programs.
TRAFFICKING
Since the last UPR, Australia has strengthened anti-trafficking strategies, including modern slavery
legislation, joining UNODC’s Blue Heart Campaign, launching ASEAN-Australian Counter Trafficking
Initiative, and delinking support for survivors of forced marriage from the criminal justice system for 200 days.
Access to government funded support for other survivors, however, remains contingent on participation in
criminal justice processes, creating barriers to support. The National Action Plan to Combat Human
Trafficking and Slavery is incomplete. Funding to NGOs has been reduced and there are significant delays in
renewing funding. Orphanage trafficking, whilst recognised in modern slavery law, cannot be prosecuted
under Australia’s trafficking laws.
Australia must promote a human rights-based approach and ensure that the rights of victims,
including to redress and economic and social support, are protected. Australia must also bring its
trafficking laws into conformity with international obligations.
SEX WORK
Australia’s response to sexually transmissible infections has involved effective strategies, including
supporting sex worker community organising and peer education. This has supported sex workers to
implement safer sex practices, resulting in the virtual elimination of HIV among sex workers.172
However, sex workers still experience high levels of discrimination and stigma and are negatively impacted
by the criminalisation of sex work, licensing, registration and mandatory testing in some jurisdictions.
Additionally, criminal laws remain in relation to sex work and HIV in VIC and QLD, and there is a lack of
consistent anti-discrimination protections for sex workers.173
Australia must encourage a consistent approach to the decriminalisation of sex work and introduce
measures to tackle discrimination against sex workers.
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Annexure A: Background to Report
Development
PROCESS
This joint NGO report was coordinated by the Human Rights Law Centre, Kingsford Legal Centre, and
Caxton Legal Centre working with an NGO Advisory Group, which provided expert guidance based on their
on the ground experience on the content and focus of the Report. Report sections were led by expert and
recognised NGOs (‘lead authors’), consulting with a broad range of other NGOs who provided input to the
Report’s content (‘authors’).
Expert NGO Advisory Group members, lead authors and authors were identified through consultation with
the NGO human rights sector, by online surveys, the Australian Attorney-General’s Department 2019 NGO
Forum, and wider NGO networks. These consultations were also used to inform the content of the Report.
Particular attention was paid to ensuring diversity within the Group, strong human rights credentials, the
direct participation of Aboriginal and Torres Strait Islander Peoples and their organisations, and an
intersectional approach to human rights.
This Report is the culmination of the collaborative work of leading human rights organisations and activists
within Australia. For more information, see https://www.hrlc.org.au/universal-periodic-review.
The Human Rights Law Centred received $50,000 from the Australian Attorney-General’s Department to
coordinate this joint NGO report and acted as the Secretariat for the coalition.
NGO COORDINATING COMMITTEE
The Human Rights Law Centre is a national human rights organisation that uses strategic legal action, policy
solutions and advocacy to support people and communities to eliminate inequality and injustice and build a
fairer, more compassionate Australia. HRLC has NGO Consultative status with ECOSOC.
The Kingsford Legal Centre is a community legal centre based in UNSW Sydney, which provides free legal
services to the community, specialising in discrimination law. Kingsford Legal Centre undertakes law reform
and community legal education and teaches law students in a clinical education model.
The Caxton Legal Centre is a community legal centre in Queensland, which represents the interests of
people who are disadvantaged or on a low income through strategically advocating to government, providing
legal and social work services, publishing legal information and building community awareness.
ADVISORY GROUP COMMITTEE
Amnesty International
Australian Council of Social Service
Caxton Legal Centre
Community Legal Centres Australia
COTA Australia
Equality Rights Alliance
Human Rights Law Centre
Immigration Advice and Rights Centre
Indigenous Peoples Organisation
Kingsford Legal Centre
National Aboriginal and Torres Strait Islander Legal Service
People with Disability Australia
Refugee Council of Australia
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Townsville Community Law Inc.
Women with Disabilities Australia
Youth Law Australia
LEAD AUTHORS
Australian Council of Social Service
Caxton Legal Centre
COTA Australia
Equality Australia
Equality Rights Alliance
Gay and Lesbian Counselling Service of NSW
Human Rights Council of Australia
Human Rights Law Centre
Immigration Advice and Rights Centre
Indigenous Peoples Organisation
International Women’s Development Agency
Kingsford Legal Centre
National Aboriginal and Torres Strait Islander Legal Service
People with Disability Australia
Project Respect
Public Health Association of Australia
Refugee Council of Australia
Redfern Legal Centre
Save the Children
Scarlet Alliance
Townsville Community Law Inc.
Twenty10
AUTHORS
Advocacy for Inclusion
Aged & Disability Advocacy Australia
Amnesty International
Australian Association of Social Workers
Australian Centre for International Justice
Australian Child Rights Taskforce
Australian Council of Social Service
Australian Lawyers Alliance
Australian Lawyers for Human Rights
Australian Muslim Women’s Centre for Human Rights
Australian Older Women’s Network
Australian Quaker Peace and Legislation Committee
Better Care Network
Caroline Collaborates
Caxton Legal Centre
Communication Rights Australia
COTA Australia
Disability Discrimination Legal Service
Equality Australia
Equality Rights Alliance
Flemington and Kensington Community Legal Centre
Gay and Lesbian Counselling Service of NSW
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Harmony Alliance: Migrant and Refugee Women for Change
Human Rights Council of Australia
Human Rights Law Centre
Immigration Advice and Rights Centre
Indigenous Peoples Organisation
International Women’s Development Agency
Kingsford Legal Centre
National Aboriginal and Torres Strait Islander Legal Service
National Older Women’s Network
National Social Security Rights Network
New South Wales Aboriginal Land Council
Obesity Policy Coalition
People with Disability Australia
Peter McMullin Centre on Statelessness
Physical Disability Council of NSW
Project Respect
Public Health Association of Australia
Queensland Advocacy Incorporated
Redfern Legal Centre
Refugee Council of Australia
Refugee Legal
Save the Children
Scarlet Alliance
Soroptimist International Australia
Springvale Monash Legal Service
The Secretariat of National Aboriginal and Islander Child Care
Townsville Community Law Inc.
Twenty10
Women with Disabilities Australia
Youth Affairs Network of Queensland
Youth Law Australia
YWCA Australia
YWCA Canberra
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Annexure B: List of Endorsing
Organisations
This submission is endorsed, either in part or in whole, by the following organisations:
Aboriginal Legal Rights Movement
Aboriginal Legal Service of Western Australia Limited
Aboriginal Rights Coalition
ACCIR
ACON
ACT Council of Social Service
ActionAid Australia
Advocacy for Inclusion
Advocare
Aged & Disability Advocacy Australia
Aleph Melbourne
Alevi Federation of Australia
Alliance for Gambling Reform
Amnesty International Australia
ANTaR
Anti-slavery Australia
Australian Association for Adolescent Health Ltd
Australian Association of Social Workers
Australian Baha'i Community - Office of Equality
Australian Centre for International Justice
Australian Council for International Development
Australian Council for International Development Gender Equity Working Group
Australian Centre for Leadership for Women
Australian Council of Social Service
Australasian Council of Women and Policing
Australian Federation of Medical Women
Australian Graduate Women
Australian Healthcare and Hospital Association
Australian Human Rights Institute, UNSW Sydney
Australian Injecting & Illicit Drug Users League
Australian Lawyers Alliance
Australian Lawyers for Human Rights
Australian Motherhood Initiative for Research and Community Involvement
Australian Muslim Women's Centre for Human Rights
Australian Quaker Peace and Legislation Committee
Australian Women Against Violence Alliance
Australian Women's Health Network
Be Slavery Free
Brigidine Asylum Seekers Project
Business & Human Rights Resource Centre
Canberra Community Law
CARE Australia
Carers Australia
Caxton Legal Centre
Centre for Asylum Seekers, Refugees and Detainees
Centre for Business and Human Rights, RMIT University
Child Rights Taskforce
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Children and Young People with Disability Australia
Children by Choice
Civil Liberties Australia
Cohealth
Community Legal Centres Association of WA
Community Legal Centres Australia
Community Legal Centres Australia National Human Rights Network
Commonwealth Human Rights Initiative
Consumer Credit Legal Service (WA)
Consumers Health Forum of Australia
Council on the Ageing Australia
Disability Discrimination Legal Service
Down Syndrome Australia
Eastern Community Legal Centre
Economic Justice Australia
Edmund Rice Centre
End Child Detention Coalition
Environment Centre NT
Equality Australia
Equality Lawyers
Equality Rights Alliance
Federation of Ethnic Communities Councils of Australia
Feminist Legal Clinic
Fitted for Work
Flemington Kensington Community Legal Centre
Forget Me Not Australia Limited
Foundation for Aboriginal and Islander Research Action Aboriginal Corporation
GetUp!
Girl Guides Australia
Good Shepherd Australia New Zealand
Harmony Alliance: Migrant and Refugee Women for Change
Homebirth Australia
Hub Community Legal
Human Rights Council of Australia
Human Rights Law Centre
Immigrant Women's Speakout Association of NSW Inc.
Immigration Advice and Rights Centre
Indigenous Peoples Organisation
International Women's Development Agency
Intersex Human Rights Australia
Intersex Peer Support Australia
JERA International
Jessie Street National Women's Library
Jesuit Refugee Service Australia
Josephite Justice Network
Justice Connect
Kingsford Legal Centre
Legacy
Liberty Victoria
Liberty Victoria's Rights Advocacy Project
Marie Stopes Australia
Maternity Choices Australia
Melbourne Activist Legal Support
Migrant Women's Lobby Group of South Australia
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Multicultural Youth Advocacy Network Australia
Music for Refugees
National Aboriginal and Torres Strait Islander Legal Services
National Aboriginal and Torres Strait Islander Women’s Alliance
National Association of People with HIV Australia
National Association of Services Against Sexual Violence
National Council of Churches Gender Commission
National Council of Jewish Women of Australia
National Council of Single Mothers and their Children
National Council of Women of Australia
National Foundation for Australian Women
National LGBTI Health Alliance
National Older Women's Network
National Rural Women's Coalition Ltd
National Union of Students Women's Department
New South Wales Aboriginal Land Council
Northern Suburbs Community Legal Centre
NSW Council for Civil Liberties
NSW Council of Social Service
NSW Gay and Lesbian Rights Lobby
NQWLS
Obesity Policy Coalition
Older Persons Advocacy Network
Original Power
People with Disability Australia
Peter McMullin Centre on Statelessness
PFLAG Tasmania
Physical Disability Council of NSW
Plan International Australia
Project Respect
Public Health Association of Australia
Public Health Association of Australia - Women's Health Special Interest Group
Publish What You Pay Australia
Queensland Advocacy Incorporated
Rainbow Families
Redfern Legal Centre
Refugee Advice and Casework Service
Refugee Council of Australia
Reproductive Choice Australia
ReThink Orphanages Australia
Rights in Action Inc.
Rights Information and Advocacy Centre
Rural Australians for Refugees
Safe Motherhood for All
Save the Children Australia
Scales Community Legal Centre
Scarlet Alliance
Secretariat of National Aboriginal and Islander Child Care
Seniors Rights Service
Seniors Rights Victoria
Sisters Inside
Sisters of St Joseph
Soroptimist International Australia
South Australian Rainbow Advocacy Alliance
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Springvale Monash Legal Service
St Francis Social Services
TASC National
The Centre for Excellence in Child and Family Welfare
The Youth Affairs Council of Western Australia
Thorne Harbour Health
Traditional Owner Leadership Group
TransFolk of WA
Townsville Community Law Inc.
Twenty10 incorporating the Gay and Lesbian Counselling Service NSW
UN Women National Committee Australia
Union of Australian Women
United Nations Association of Australia Status of Women Network
UQ Pro Bono Centre
Victorian Gay & Lesbian Rights Lobby
Victorian Immigrant and Refugee Women's Coalition
VIEW Clubs of Australia
Violence Prevention Australia
Welfare Rights Centre
Western Australian Council of Social Service
Western NSW Community Legal Centre Inc.
Whittlesea Community Connections
Wollotuka School of Aboriginal Studies, University of Newcastle
Women in Adult and Vocational Education
Women in Engineering Australia
Women on Boards
Women Sport Australia
Women with Disabilities Australia
Women's Electoral Lobby Australia
Women's Equity Think Tank
Women's Housing Ltd
Women's Information Referral Exchange
Women's International League for Peace and Freedom
Women's Legal Centre (ACT & Region) Inc.
Women's Legal Service NSW
Women's Legal Service, Tasmania
Women's Legal Service WA
Women's Legal Services Australia
Women's Property Initiatives
Working Against Sexual Harassment
World Wide Fund for Nature - Australia
Youth Affairs Network of Queensland
Youth Law Australia
Yorta Yorta Nation Aboriginal Corporation
YWCA Australia
YWCA Canberra
Zonta International Districts 22, 23 and 24
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Annexure C: Human rights and COVID-19
developments following finalisation of the
UPR NGO Coalition Report
The UPR NGO Coalition Report was finalised just as COVID-19 was taking hold in Australia.174 As a result, it
was not possible in the Report to contemplate the impact that COVID-19 would have on the attainment and
protection of human rights in Australia. It is still not possible to make this assessment, but this Annexure
identifies key areas of human rights concern for monitoring.
The NGO Coalition Report provides an important baseline for measuring and monitoring Australia’s human
rights response to COVID-19, and should be used to measure the impacts of COVID-19 on groups in
Australia that were experiencing human rights violations prior to the pandemic.
By global comparison, Australia has been relatively successful so far in suppressing cases of COVID-19 and
limiting deaths directly from the disease, although there has been a higher proportion of deaths among older
people. The threat of further waves of the virus remains omnipresent, as highlighted by a recent upswing in
cases in the state of Victoria. Australia must continue to effectively respond to the ongoing health threat of
the virus.175
Preventing deaths is a key human rights outcome, but, we must consider the full range of human rights
impacts of COVID-19.176 These include the impacts of pandemic restrictions on people with pre-existing and
emerging health issues177, as well as other wide-ranging impacts caused by physical lockdown and
economic shutdown measures, including the impact on mental health.178 It is likely that the full impact of the
virus will not become apparent for many years. It will be important to monitor the intergenerational impact of
the COVID-19 into the future.
MONITORING THE IMPACTS OF AUSTRALIA’S RESPONSE - KEY AREAS OF
CONCERN
Monitoring the human rights impacts of COVID-19 restrictions and the measures adopted to mitigate the
economic impacts, is complicated by the multi-jurisdictional nature of Australia - measures have varied from
state-to-state. A comprehensive human rights-based assessment will be required to consider these
geographic and jurisdictional differences.
COVID-19 shutdowns occurred across Australia through new laws and regulations which were developed
very rapidly.179 Most Australian Parliaments did not sit for a number of months, and extraordinary legislative
powers have been devolved to individual ministers and officials.180 Social distancing was implemented and a
range of activities and businesses were banned and closed.181 Police were also given extensive emergency
powers, including to issue fines where restrictions are violated.182 Urgent measures were developed and
adopted with little or no consultation with civil society. Civil society concerns about the impact of these
extraordinary measures remain, particularly for groups subject to economic and social disadvantage in
Australia, as outlined in our NGO Report.
INCURSIONS ON DEMOCRATIC INSTITUTIONS, PROCESSES AND RIGHTS
The speed and lack of consultation on the COVID-19 response measures have led to concerns about
democratic decision making. This has been compounded by the temporary closure of Parliaments and
creation of new bodies, such as the National COVID-19 Coordination Commission.183 The Commission has
been tasked with the critical role of advising Government on rebuilding jobs, business and livelihoods,
however it has no governing legislation, opaque processes and is run by government-picked appointees,
many of whom have connections to mining and resources industries. There is a lack of social service, human
rights and Aboriginal and Torres Strait Islander representation on the Commission.184
Freedom of expression and assembly are being threatened in several jurisdictions by crackdowns on protest
and heightened police powers, with over-policed groups, notably Aboriginal and Torres Strait Islander
Peoples, most exposed.185 This has been highlighted by Black Lives Matter and Aboriginal Lives Matter
protests, which have occurred across Australia.186 As the NGO Report highlights, Aboriginal and Torres
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Strait Islander Peoples in Australia are the most imprisoned people on earth and die at high rates in police
custody.187 Relatively limited data about the use of police emergency powers has been made public, but
what has been released appears to indicate discrimination and significant overstep.188 The use of COVID-19
powers to prevent protests is a growing area of human rights concern, particularly given community
transmission in Australia is relatively low. The proportionality of these measures and the extent to which they
curtail democratic freedoms needs to be monitored.
DISPROPORTIONATE IMPACTS OF COVID-19 MEASURES
Physical lockdown measures have had acute human rights implications for certain groups, in particular,
people isolated in ‘pressure cooker’ environments, such as places of detention,189 nursing homes, and in
overcrowded, violent or unsafe homes. For example, people living in institutions are at far higher risk of
infection, and at the same time, institutional living arrangements for people with disability and older people
have exposed individuals to other forms of harm, including restrictive practices under the guise of public
health measures.190 In addition, Australia has not followed public health advice about releasing people in
immigration detention, people imprisoned for low level offending, and people on remand, creating genuine
fears for the safety and wel -being of detained people.191
Of significant concern is that, without regular engagement in school, work and the community, domestic
violence and abuse of women, children and older people has been hidden and seeking help has been
difficult.192 The Government must invest in specialist domestic and family violence services to respond to the
increased need.193
COVID-19 has exacerbated existing inequalities in Australia - as outlined in the NGO Report. Inequalities
experienced by Aboriginal and Torres Islander Peoples in areas such as health outcomes, severe and forced
housing overcrowding, employment and income and the highest incarceration rate in the world - the result of
colonisation and discrimination - significantly increase the threat of death and severe illness from COVID-19
to Aboriginal and Torres Strait Islander Peoples.194 As recommended throughout the NGO report, these
inequalities and injustices must be urgently addressed.
The gendered impact of the COVID-19 health and economic crises is also of significant concern. For
example, jobs held by women have decreased by 8.1%, compared to a 6.2% decrease for men.195In addition
to an expected increase in gender-based violence, physical lockdowns have reinforced and exacerbated the
unequal gender distribution of unpaid care and restricted women’s access to sexual and reproductive health
services and products.196
In addition, there is concern that children with disabilities unable to engage in remote learning will be further
behind their peers than they were before,197 and that remote learning has further disadvantaged children
from economically and socially disadvantaged households.198 There is also concern about long term harm to
educational, training and employment outcomes for young people.199
ECONOMIC IMPACT
There have been a range of positive, but temporary, policy measures including:
● measures to reduce or mitigate tenancy evictions - these have varied across jurisdictions200;
● measures to provide a wage subsidy to keep people in work;
● measures to increase access to, and the amount of, social security payments, in particular for
people on youth, unemployment and parenting payments; and
● measures to make childcare free.201
However, many of these economic measures exclude critical groups, such as migrant workers, asylum
seekers, refugees and many casual workers, who are already economically vulnerable, and who may be
pushed into destitution or unsafe situations, such as highly exploitative work practices.202
The impact of these economic measures needs to be closely monitored with most assistance due to end
between July and September 2020. The end of assistance, with millions of people still unemployed or under-
employed, will present significant human rights challenges for large numbers of people. Monitoring the
human rights impact as these measures are withdrawn will be critical. The impact of the end of free childcare
will need to be monitored carefully in relation to gender equality.
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A HUMAN RIGHTS FRAMEWORK FOR RECOVERY
A human rights decision making framework must shape the Australian Government’s legislative and policy
approach to recovery from the COVID-19 pandemic.
This must involve creating transparent, accessible, and accountable institutional structures for civil society
engagement in government decision making, and moving away from the undemocratic processes, such as
the National COVID-19 Coordination Commission. As the immediate health emergency subsides, a key
issue wil be re-assessing the proportionality of measures that curtail human rights. For example, as
governments lift restrictions, they should also be taking steps to facilitate safe and peaceful protests, such as
the Black Lives Matter protests.203 In addition, identifying and addressing pre-existing inequalities, and how
COVID-19 has impacted on these, should be central to responses of Australian governments so as to
prevent inequality deepening into the future. Further, the swelling of the Black Lives Matter movement in
Australia should remind governments that they have a duty to ensure that COVID-19 does not delay urgent
action on long-standing human rights issues, such as ending Aboriginal deaths in custody and over-
imprisonment.
The NGO Report, particularly the recommendations, offers a human rights roadmap which, if accepted,
could align economic stimulus measures with human rights principles. An opportunity exists to turn the
calamity of the pandemic into a thoughtful rebuilding which addresses inequality and sets Australia on the
road to addressing major human rights concerns. Economic stimulus could be directed in areas such as
addressing overcrowding and homelessness through social and affordable housing, addressing gender
inequality and strengthening Australia’s response to climate change. The changes during the pandemic that
have radically improved the lives of some people on social security should also be maintained post the
emergency response.204
Other successes, such as the pivotal leadership role of Aboriginal and Torres Strait Islander communities
and the community controlled health sector in so far preventing the devastation COVID-19 posed to First
Nations communities,205 highlight the critical importance of community-led recovery measures. These need
to be built upon to address the critical human rights issues highlighted in the NGO Report.
The swift response to the health emergency by Australian Governments demonstrated an understanding of
the sanctity of life and the human right to health. It is with the same commitment that we must address the
well-documented human rights concerns in Australia, including those that have been exacerbated by the
pandemic. The human rights breaches outlined in the NGO Report represent just as critical a threat to life
and health as COVID-19. We must approach these concerns with the same urgency and sense of national
responsibility. In these extraordinary times, human rights present us with a values-based roadmap to
recovery that centres on human dignity, opportunity and equality. This would be a fitting long term response
to the pandemic for future generations.
NGO Co-ordinating Committee
3 July 2020
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1 Sections 25 and 51(xxvi) allow Federal Parliament to make laws by reference to the concept of ‘race’ – in the case of
section 25, State laws; and in the case of section 51(xxvi), Commonwealth laws. See Expert Panel on Constitutional
Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution:
Report of the Expert Panel (Report, January 2012) 137.
2 The Voice to Parliament and the Makarrata and Truth and Justice Commission are addressed in Referendum Council,
Final Report of the Referendum Council (Report, 30 June 2017).
3 Only three states in Australia have compensation schemes for members of the Stolen Generations: Tasmania (Stolen
Generations of Aboriginal Children Act 2006 (Tas)), South Australia (‘Stolen Generations Reparations Scheme’,
Government of South Australia: Department of Premier and Cabinet (Web Page, 2019); and New South Wales (‘Stolen
Generations Reparations Scheme and Funeral Assistance Fund’, NSW Government: Aboriginal Affairs (Web Page)).
4 Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander
Children and their Families (Report, 1997).
5 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2
September 1990). Art 37(c) protects the right of a child to be separated from adults in prison, unless it is not in the child’s
best interest to do so, and the right to maintain contact with family.
6 Concerns include a lack of legislative basis, lack of funding and resources across jurisdictions, inconsistencies with
existing inspection bodies, and failure to include aged care and disability-specific facilities. See the Australia Opcat
Network, Submission to the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (SPT) and the United Nations Working Group on Arbitrary Detention (WGAD), The Implementation of
Opcat in Australia (January 2020).
7 Michel Forst, Report of the Special Rapporteur on the Situation of Human Rights Defenders on his Mission to Australia,
A/HRC/37/51/Add.3 (28 October 2018) 11 [53]-[55].
8 Commonwealth funding for community services should be increased by $2 mil ion per annum in order to reverse the
cuts seen since the 2014 Budget. See Australian Council of Social Service, Budget Priority Statement 2020-2021,
(January 2020) 27.
9 Victoria Tauli-Corpus, Report of the Special Rapporteur on the Rights of Indigenous Peoples on her Visit to Australia,
UN Doc A/HRC/36/46/Add.2 (8 August 2017) 11 [60]-[64].
10 The NT Intervention sent 600 troops into 73 remote Aboriginal communities in 2007, removed cash welfare payments
for Aboriginal and Torres Strait Islander Peoples, removed community governance and instil ed the compulsory leasing
of Aboriginal and Torres Strait Islander communal lands. It suspended the protections of the Racial Discrimination Act
1975 (Cth) for Aboriginal and Torres Strait Islander Peoples.
11 James Anaya, Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of
Indigenous People: Situation of Indigenous Peoples in Australia, UN Doc A/HRC/15/37/Add.4 (1 June 2010) 29.
12 Ibid 12–13.
13 The NT Intervention suspended the protections of the Racial Discrimination Act 1975 (Cth) for Aboriginal and Torres
Strait Islander Peoples.
14 Report by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous
People, UN Doc A/HRC/15/37/Add.4 (n 11) 28.
15 Ibid 28–30.
16 Report of the Special Rapporteur on the Rights of Indigenous Peoples on her Visit to Australia, (n 9) 11 [60]-[64].
17 Funding to Homeland and Outstation communities was stopped to pressure Aboriginal and Torres Strait Islander
Peoples to move to larger hub communities. See Report by the Special Rapporteur on the Situation of Human Rights
and Fundamental Freedoms of Indigenous People, UN Doc A/HRC/15/37/Add.4 (n 11) 17–18 [68].
18 Shelley Bielefeld, Submission No 55 to Senate Standing Committee on Community Affairs, Parliament of Australia,
Inquiry into Social Services Legislation Amendment (Cashless Debit Card) Bill 2017 (29 September 2017) 17.
19 Shelley Bielefeld, Submission to United Nations Special Rapporteur on Extreme Poverty and Human Rights: Thematic
Report to the United Nations General Assembly on Digital Technology, Social Protection and Human Rights (17 May
2019) 2.
20 Submission No 55 to Senate Standing Committee on Community Affairs, Parliament of Australia, (n 18) 5, 7, 9.
21 Christopher Knaus, ‘Family Violence Rates Rise in Kimberly Towns with Cashless Welfare’, The Guardian (online, 12
January 2018); Elise Klein, ‘As Costs Mount, The Government Should Abandon the Cashless Debit Card’, The
Conversation (online, 12 December 2017).
22 Rangi Hirini, ‘Cashless Card Outrage Affects Hundreds across the Nation’, National Indigenous Television (online, 21
January 2019).
23 Submission No 55 to Senate Standing Committee on Community Affairs, Parliament of Australia (n 18) 13-14.
24 Shelley Bielefeld, Submission No 55 to Senate Standing Committee on Community Affairs, Parliament of Australia (n
18) 18; Shelley Bielefeld, Submission No 68 to the Senate Standing Committee on Community Affairs, Parliament of
Australia, Inquiry into Social Services Legislation Amendment (Cashless Debit Card Trial Expansion) Bill 2018 (20 July
2018) 1, 12.
25 Helen Davidson, ‘Remote Work-For-The-Dole Scheme is Racist, ACTU Head Sally McManus Says’, The Guardian
(online, 6 August 2017).
26 Submission to United Nations Special Rapporteur on Extreme Poverty and Human Rights: Thematic Report to the
United Nations General Assembly on Digital Technology, Social Protection and Human Rights (n 19) 5.
27 Dan Conifer, ‘Indigenous Dole Scheme Participants Slapped with 350,000 Fines in Two Years’, Australian
Broadcasting Corporation (online, 6 January 2018).
28 Submission to United Nations Special Rapporteur on Extreme Poverty and Human Rights: Thematic Report to the
United Nations General Assembly on Digital Technology, Social Protection and Human Rights (n 19) 5.
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29 Lorena Allam and Nick Evershed, ‘Too Hot for Humans? First Nations People Fear Becoming Australia’s First Climate
Refugees’, The Guardian (online, 18 December 2019).
30 Including the National Water Initiative (See Virginia Marshall, Overturning Aqua Nullius: Securing Aboriginal Water
Rights (AIATSIS, 2017) 120) and the Murray-Darling Basin Royal Commission’s findings that Aboriginal and Torres Strait
Islander Peoples’ interests have been marginalized, and that the Water Act’s governance fails to provide for the interests
of Aboriginal and Torres Strait Islander Peoples (see South Australia, Murray-Darling Basin Royal Commission Report
(Report, 29 January 2019) chs 11 and 17).
31 Michael Gannon, ‘Close the clean drinking water gap’, Australian Medical Association (online, 14 November 2017).
32 Jane Bardon, ‘NT traditional owners’ concerns about fracking dominate Origin Energy AGM’, ABC News (online, 18
October 2018); Grace Dungey and Nick Rodway, ‘Fracking threatens Aboriginal land rights in Western Australia’,
Mongabay (online, 21 November 2018); Ben Smee, ‘Fracking fears grow for rivers in Queensland’s channel country’
(online, 10 October 2019); Tom Hatton et al, Independent Scientific Panel Inquiry into Hydraulic Fracture Stimulation in
Western Australia: Final Report to the Western Australian Government (Report, September 2018) 454-455, 518, 538;
Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development, Hydraulic Fracturing
(‘Fraccing’) Techniques, including Reporting Requirements and Governance Arrangements, Background
Review’(Report, June 2014) 51-52.
33 National Climate Change Adaptation Research Facility, National Climate Change Adaptation Research Plan:
Indigenous Communities (Report, 2012); Intergovernmental Panel on Climate Change, Climate Change and Land: IPCC
Special Report on Climate Change, Desertification, Land Degradation, Sustainable Land Management, Food Security,
and Greenhouse Gas Fluxes in Terrestrial Ecosystems (Report, 7 August 2019) 381.
34 The Act denies Aboriginal and Torres Strait Islander Peoples ‘free prior and informed consent’ in mine approvals
affecting native title – without agreement, the tribunal can approve mining without awarding royalties; has a default
decision making mechanism in land use agreements that is inconsistent with the right of self-determination; allows for
compulsory acquisition of native title land for third party benefit; and provides for extinguishment of Native Title, and
extinguishment prior to 1975 without compensation.
35 Referendum Council, Final Report of the Referendum Council (Report, 30 June 2017) I.
36 In addition, legislative changes in December 2014 resulted in more cancellation or refusal of visas for refugees and
asylum seekers on character grounds. Those decisions do not give appropriate weight to non-refoulement obligations,
resulting in protracted arbitrary detention for many.
37 2017 Senate Estimates indicate that 376 stateless persons were held in offshore detention, comprising 12% of all
persons held in offshore detention: Legal and Constitutional Affairs Senate Estimates Committee, Question Taken on
Notice, Additional Estimates Hearing (27 February 2017) Immigration and Border Protection Portfolio AE17/170. Neither
Papua New Guinea nor Nauru are party to the 1954 Convention Relating to the Status of Stateless Persons, or the 1961
Convention on the Reduction of Statelessness.
38 Available Australian Government statistics indicate that the number of stateless persons currently in Australia is, at a
minimum, approximately 4,099 (See Australian Government, Department of Home Affairs, Australian Border Force,
Immigration Detention and Community Statistics Summary (Report, 31 October 2019) 8; Australian Government,
Department of Home Affairs, Australian Border Force, Illegal Maritime Arrivals on Bridging E Visa (Report, 30 September
2019); Australian Government, Department of Home Affairs, IMA Legacy Caseload, Report on Processing Status
Outcomes (Report, October 2019); Australian Government, Department of Immigration and Border protection, Onshore
Humanitarian Program 2018-19; Australian Government, Department of Home Affairs, Australia’s Offshore Humanitarian
Program: 2018-19 (Report, 2019); Australian Government, Department of Home Affairs, Key Statistics as at 31 October
2019 (Factsheet). In contrast to these government statistics, however, until recently the Australian Government was
reporting ‘0’ stateless persons within Australian territory, and more recently 138 stateless persons (See: UNHCR, Global
Trends – Forced Displacement in 2018 (Report, 2019)).
39 Australia also has no method of protecting stateless persons who do not qualify as refugees or for international
protection. Statelessness is not a criterion for qualification for a protection visa. Australia’s international obligations to
protect the rights of stateless people are found in a variety of instruments: Convention Relating to the Status of Stateless
Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960); Convention on the
Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December
1975); Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into
force 22 April 1954); Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN
Doc A/810 (10 December 1948) art 15(1); International Covenant on Civil and Political Rights, opened for signature 16
December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 24(3); Convention on the Elimination of All Forms
of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3
September 1981) art 9; Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3
(entered into force 2 September 1990) art 7; Convention on the Rights of Persons with Disabilities, opened for signature
30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008) art 18; International Convention on the Elimination of All
Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969)
art 1(3), 5; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for
signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). State based Stateless Determination
Procedures are an implicit requirement of state parties meeting their obligations under the 1954 and 1961 Conventions
(United Nations Secretary-General, Guidance Note of the Secretary-General, The United Nations and Statelessness,
November 2018, 7; UNHCR, Handbook on Protection of Stateless Persons under the 1954 Convention Relating to the
Status of Stateless Persons (2014) 6 [8].
40 This is in line with the UNHCR #iBelong Campaign to end statelessness by 2024. Action 6 relates to establishing
statelessness determination procedures. See United Nations, Global Action Plan to End Statelessness: 2014-2024
(Report, 2014).
41 Amy Remeikis, ‘Scott Morrison Attacks ‘Mindless Tribalism’ After Christchurch Massacre’, The Guardian (online, 18
March 2019); Australian Government, Multicultural Australia: United, Strong, Successful (Statement, March 2017).
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42 Lowy Institute, ‘Immigration and Refugees’, Lowy Institute Poll 2019 (Web Page)
<https://lowyinstitutepol .lowyinstitute.org/themes/immigration-and-refugees/#section-attitudes-to-immigration>.
43 Kevin Dunn et al, The resilience and ordinariness of Australian Muslims: Attitudes and experiences of Muslims Report,
(Report, November 2015) 27; Derya Iner (ed), Islamophobia in Australia II (2016-2017) (Report, 2019).
44 Diversity Council Australia, ‘The Facts on Victorian African Crime’ (Position Statement, 3 September 2018); All
Together Now, Social commentary and racism in 2019 (Report, 2019) 19.
45 See, Attorney-General’s Department, Australia's Universal Periodic Review (Report, 15 September 2015).
46 See, ‘Terms of Reference’, Royal Commission into Aged Care Quality and Safety (Web Page, 6 December 2018).
47 See, Royal Commission into Aged Care Quality and Safety, Interim Report (Report, 31 October 2019).
48 See, Australian Government Productivity Commission, Report on Government Services 2020 (Report, 23 January
2020).
49 Older Australians are assessed as having a functional decline in their abilities by the Australian Government prior to
being placed on the waitlist. This may trigger incompatibilities with ICRPD articles 25 or 26.
50 See, Human Rights Watch, "Fading Away": How Aged Care Facilities in Australia Chemically Restrain Older People
with Dementia (Report, 25 October 2019).
51 Susan Ryan, ‘Commissioner’s Foreword’ in Australian Human Rights Commission, Willing to Work: National Inquiry
into Employment Discrimination Against Older Australians and Australians with Disability (Report, 2016). Australia must
improve age-discrimination experienced by older workers in the area of recruitment. Almost one in three managers report
that they would not employ someone over a certain age, with two thirds saying that age is 50, see, COTA for older
Australians, ‘MEDIA RELEASE: Survey shows ageism alive and well among Australian employers’ (Media Release, 1
November 2018). Discrimination against older workers is also prevalent in insurance. Many insurance products such as
workers compensation and workers compensation stop at age 65 despite notional retirement age moving to 67 by 2023.
52 Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth).
53 Requirements that a person must divorce their spouse prior to updating their legal gender on birth certificates have
been removed in all states and territories: Australian Capital Territory (‘ACT’) (2006), South Australia (‘SA’) (2016), New
South Wales (‘NSW’) (2018), Queensland (‘Qld’) (2018), Northern Territory (‘NT’) (2018), Victoria (‘Vic’) (2019),
Tasmania (‘Tas’) (2019) and Western Australia (‘WA’) (2019). Requirements that a person must undergo sexual
reassignment surgery or medical intervention prior to updating their legal gender have been removed in ACT (2014), SA
(2016), NT (2018), Vic (2019), Tas (2019), and partially, in WA (2011).
54 Vic (2016), Qld (2016), SA (2017) and NT (2018), which joined WA (2002), ACT (2004), NSW (2010) and Tas (2013).
55 Tas (2017), Qld (2017), WA (2018) and NT (2018), which joined SA (2013), NSW (2014), Vic (2014) and ACT (2015).
56 Vic (2016, with further reforms under consideration), ACT (proposed 2020) and Qld (proposed 2020).
57 There is evidence that discrimination, harassment and violence against lesbian, gay, bisexual, transgender and
intersex (LGBTI) Australians was in fact exacerbated by the Australian Government’s insistence in 2017 on conducting a
non-binding and constitutionally unnecessary national postal survey on same-sex marriage, as a precondition for
allowing a vote on legislation in parliament: see, Senate Finance and Public Administration References Committee,
Parliament of Australia, Arrangements for the postal survey (Report, February 2018) 23–27 [4.3] – [4.15], 33–34[5.8] –
[5.12], see also Dissenting Report by Government Senators 48 [1.56]; Stefano Verrelli et al, ‘Minority stress, social
support, and the mental health of lesbian, gay, and bisexual Australians during the Australian Marriage Law Postal
Survey’ (2017) 54(4) Australian Psychologist 336; Cristen Til ey and Nathan Hoad, ‘Keeping Track of the Ugly Side of the
Same-Sex Marriage Debate’, ABC News (online, 26 October 2017).
58 Ibid; Australian Human Rights Commission, Resilient Individuals: Sexual Orientation Gender Identity & Intersex Rights:
National Consultation Report (Report, 2015); William Leonard et al, Private Lives 2: The second national survey of the
health and wellbeing of gay, lesbian, bisexual and transgender (GLBT) Australians (Report, Australian Research Centre
in Sex, Health & Society, La Trobe University, 2012) 45; Intersex Human Rights Australia, Submission to the Australian
Human Rights Commission, Protecting the Human Rights of People Born with Variations in Sex Characteristics in the
context of medical interventions (30 September 2018) (‘IHRA Submission’).
59 NSW, Qld and WA.
60 Committee on the Elimination of Discrimination against Women, Concluding Observations on the Eighth Periodic
Report of Australia, UN Doc CEDAW/C/AUS/CO/8 (25 July 2018); Committee on the Rights of the Child, Concluding
Observations on the Combined Fifth and Sixth Periodic Reports of Australia, UN Doc CRC/C/AUS/CO/5-6 (1 November
2019); Office of the High Commissioner for Human Rights, Background Note on Human Rights Violations against
Intersex People (2019); IHRA Submission (n 58); AIS Support Group Australia, Submission to the Australian Human
Rights Commission, Protecting the Human Rights of People Born with Variations in Sex Characteristics (29 September
2018) . In this regard, the 2013 Australian Senate recommendations on ending forced and medical interventions on
children with intersex variations remain unimplemented: see Senate Community Affairs References Committee,
Parliament of Australia, Involuntary or coerced sterilisation of intersex people in Australia (Second Report, 25 October
2013).
61 Ibid; See also Committee on the Rights of Persons with Disabilities, Concluding Observations on the Combined
Second and Third Reports of Australia, UN Doc CRPD/C/AUS/CO/2-3 (15 October 2019) (‘CPRD Concluding
Observations on Australia’).
62 Recognising that the needs, characteristics and human rights situations of populations of diverse sexual orientations,
gender identities, gender expressions and sex characteristics are distinct from each other, the data on each population
must be collected and managed in a manner consistent with ethical, scientific and human rights standards and made
available in a disaggregated form. See Yogyakarta Principles Plus 10, Principle 19, (I).
63 Kerry Robinson et al., ‘Growing up Queer: Issues facing Young Australians who are Gender Variant and Sexuality
Diverse’ (Report, Young and Wel Co-operative Research Centre, February 2014).
64 There are serious concerns with the implementation of the current National Disability Strategy (2010-2020), that were
most recently raised by the Committee on the Rights of Persons with Disabilities (CRPD). See CPRD Concluding
Observations on Australia, UN Doc CRPD/C/AUS/CO/2-3 (n 61). See also Australian Civil Society CPRD Shadow
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Report Working Group, ‘Disability Rights Now 2019’, Australian Civil Society Shadow Report to the United Nations
Committee on the Rights of Persons with Disabilities, UN CRPD Review 2019 (July 2019) (‘Australian Civil Society
Shadow Report’).
65 These include Guardianship, estate management and mental health laws.
66 See CPRD Concluding Observations on Australia, UN Doc CRPD/C/AUS/CO/2-3 (n 61). Australia’s interpretation of
CPRD Articles 12 and 17 allows for the continuation of guardianship and mental health laws that deprive people of liberty
on the basis of disability, and subject them to forced medical interventions. Whilst there have been some reviews and
amendments to legislation, there has been no action to end involuntary detention on the basis of disability, or to end
forced medical interventions. The Interpretative Declaration on Article 18 also preserves Australia’s current legislative
and administrative approach to processing visa applications. The Disability Discrimination Act 1992 (Cth) provides an
exception for certain provisions within the Migration Act 1958 (Cth), which means that Australia’s migration arrangements
and treatment of disability are unable to satisfy the equal protection obligations under CRPD Article 5.
67 Despite recommendations from the Australian Law Reform Commission, Equality, Capacity and Disability in
Commonwealth Laws (Report No 124, 24 November 2014); Human Rights Council, Report of the Working Group on the
Universal Periodic Review, UN Doc A/HRC/31/14 (13 January 2016) 23 and most recently CPRD Concluding
Observations on Australia, UN Doc CRPD/C/AUS/CO/2-3 (n 61).
68 See Ibid, and Australian Civil Society Shadow Report (n 64) 27, 29.
69 A high number of people with disability, including children are administered psychotropic medication, physical restraint,
and seclusion under the guide of ‘behaviour management’, including in schools, disability and mental health facilities,
hospitals and aged care settings. Surgeries and other medical interventions are performed on infants and children with
intersex variations without informed consent or evidence of necessity. See: Australian Cross Disability Alliance (ACDA),
Submission No 147 to the Senate Community Affairs References Committee, Inquiry into Violence, Abuse and Neglect
against People with Disability in Institutional and Residential Settings (August 2015).
70 Australia is required to provide its combined fourth and fifth periodic reports to the UN Committee on the Rights of
Persons with Disabilities by 17 August 2026.
71 Disabled Peoples Organisations Australia and National Women’s Al iances, The Status of Women and Girls with
Disability in Australia (Position Paper, November 2019).
72 74% of incidents reported to Australia's Disability Royal Commission have occurred since 2010: Royal Commission
into Violence, Abuse, Neglect and Exploitation of People with Disability (First Progress Report, December 2019) 13.
73 In relation to child protection and out of home care, see SNAICC – National Voice for our Children et al., The Family
Matters Report 2019: Measuring trends to turn the tide on the over-representation of Aboriginal and Torres Strait Islander
children in out-of-home care in Australia, (Report, 2019). In relation to juvenile justice, see Australian Government
Productivity Commission, Report on government services 2020 (Report, 23 January 2020) Section 17, ‘Youth justice
services’, 17.5.
74 The core components required for the establishment of such a commissioner are outlined in SNAICC – National Voice
for our Children and Queensland Aboriginal and Torres Strait Islander Child Protection Peak (QATSICPP) Position
paper: Establishment of a national commissioner for Aboriginal and Torres Strait Islander children and young people
(Position Paper, October 2019).
75 In relation to obligations under the Convention on the Rights of the Child, opened for signature 20 November 1989,
1577 UNTS 3 (entered into force 2 September 1990) and the International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families, opened for signature 18 December 1990, 2220 UNTS 3 (entered
into force 1 July 2003) (‘CRMW’), see UN Committee on the Protection of the Rights of All Migrant Workers and
Members of Their Families (‘CMW’), Joint general comment No. 3 (2017) of the Committee on the Protection of the
Rights of Al Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the
Child on the general principles regarding the human rights of children in the context of international migration, UN Doc
CMW/C/GC/3-CRC/C/GC/22 (16 November 2017) and CMW, Joint general comment No. 4 (2017) of the Committee on
the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee
on the Rights of the Child on State obligations regarding the human rights of children in the context of international
migration in countries of origin, transit, destination and return, UN Doc CMW/C/GC/4-CRC/C/GC/23 (16 November
2017). Australia has not ratified CRMW.
76 Committee on the Rights of the Child, Concluding observations on the combined fifth and sixth periodic reports of
Australia, UN Doc CRC/C/AUS/CO/5-6 (1 November 2019) [22].
77 The National Action Plan should include a legislative and policy framework that fully complies with Article 24 and
General Comment 4; See CPRD Concluding Observations on Australia, UN Doc CRPD/C/AUS/CO/2-3 (n 61).
78 Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators
2016 (Report, 2016).
See also Djirra, ‘High Rates of Violence against Aboriginal and Torres Strait Islander women must be addressed’, Oral
Statement by Antoinette Braybrook to the Human Rights Council, 41st session, agenda item 3 (27 June 2019).
79 Human Rights Law Centre and Change the Record, Overrepresented and Overlooked: the crisis of Aboriginal and
Torres Strait Islander women’s growing imprisonment (Report, May 2017) 10. Djirra, ‘High Rates of Violence against
Aboriginal and Torres Strait Islander women must be addressed’, Oral Statement by Antoinette Braybrook to the Human
Rights Council, 41st session, agenda item 3 (27 June 2019)
80 Dubravka Šimonović, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences
on her mission to Australia: note by the Secretariat, UN Doc A/HRC/38/47/Add.1 (17 April 2018). See, eg Julia Holman,
‘Federal Government Axes Funding to Peak Body Representing Indigenous Survivors of Domestic Violence’, ABC News
(online, 6 December 2019).
81 Ibid.
82 ‘Safety First in Family Law’, Women's Legal Services Australia (Web Page, 23 October 2019).
83 Australian Women Against Violence Alliance, Analysis of the Fourth Action Plan (17 September 2019). .
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84 The Plan focuses on sexual assault and domestic and family violence in the context of intimate partner violence. It
does not account for structural and institutional forms of gender-based violence related to law, state and culture women
with disability experience and are more at risk of – i.e. reproductive rights violations and violence occurring in residential
institutions. See, and Australian Civil Society Shadow Report (n 64).
85 Committee on the Elimination of Discrimination against Women, Concluding observations on the eighth periodic report
of Australia, UN Doc CEDAW/C/AUS/CO/8 (25 July 2018) [52]; Committee on the Elimination of Racial Discrimination,
Concluding observations of the eighteenth to twentieth periodic reports of Australia, Un Doc CERD/C/AUS/CO/18-20 (26
December 2017) [28]; and Dubravka Šimonović, End of Mission statement by United Nations Special Rapporteur on
Violence against women, its causes and consequences, on her visit to Australia from 13 to 27 February 2017 (27
February 2017).
86 National Advocacy Group on Women on Temporary Visas Experiencing Violence, Blueprint for Reform: Removing
Barriers to Safety for Victims/Survivors of Domestic and Family Violence who are on Temporary Visas (Report, 2019).
87 Mercy Foundation et al, Retiring into Poverty: A National Plan For Change: Increasing Housing Security for Older
Women (Report, August 2018).
88 Summary Offences and Other Legislation Amendment Bill 2019 (Qld); Right to Farm Act 2019 (NSW). Tasmania will
also likely introduce similar laws: see Workplaces (Protection from Protesters) Amendment Bill 2019 (TAS).
89 Lorna Knowles et al., ‘ABC Raid: AFP Leave Ultimo Building with Files after Hours-Long Raid over Afghan Files
Stories’, ABC News (online, 6 June 2019).
90 Criminal Code Act 1995 (Cth), division 91.
91 There have been secret prosecutions of former intelligence officer Witness K and his lawyer Bernard Collaery, who
revealed that Australia bugged the offices of East Timorese negotiators during oil and gas negotiations. See James
Massola, ‘PM Dismisses Questions over Prosecution of ‘Witness K’ and Lawyer’ Sydney Morning Herald (online, 30
August 2019). The prosecution of Collaery may be in breach of the UN Basic Principles on the Role of Lawyers. In
addition, Australia has not applied diplomatic pressure on the UK to prevent the extradition of Julian Assange to the
USA, despite the underlying allegations cited in support of the charges include acts of common journalistic practice.
92 The National Congress of Australia's First Peoples, the national elected Aboriginal and Torres Strait Islander
representative body, lost its federal government funding in 2014 and was wound up in 2019 as a result.
93 Ibid, the Indigenous Peoples Organisation (IPO), which coordinates Indigenous advocacy at the United Nations, lost its
annual $100,000 funding to support Indigenous participation at United Nations fora in 2014.
94 National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth).
95 Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth); Telecommunications and
Other Legislation Amendment (Assistance and Access) Bill 2018 (Cth).
96 Identity-matching Services Bill 2019 and Australian Passports Amendment (Identity-matching Services) Bill 2019 (Cth).
At local and State level, governments and corporations have already rolled out facial recognition.
97 See Australian Citizenship Act 2007 (Cth) ss 32A-36A. The Australian Citizenship Amendment (Citizenship Cessation)
Bill 2019 is also currently before the Australian Parliament, which could render the Act inconsistent with Australia’s
international obligations and provide inadequate protections in ensuring the reduction and prevention of statelessness.
See Peter McMullin Centre on Statelessness, Submission No 19 to the Parliamentary Joint Committee on Intelligence
and Security, Review of the Australian Citizenship Amendment (Citizen Cessation) Bill 2019 (16 October 2019).
98 Cox Inall Ridgeway, Review of the Indigenous Legal Assistance Program (ILAP) 2015-2020 (Final Report, February
2019).
99 Productivity Commission, Access to Justice Arrangements (Inquiry Report No 72, 5 September 2014) vol 2, 738–9.
100 See e.g., Report of the Royal Commission and Board of Inquiry into the protection and detention of children in the
Northern Territory, 17 November 2017, Canberra; Committee on the Rights of the Child, Concluding observations on the
combined fifth and sixth periodic reports of Australia, UN Doc CRC/C/AUS/CO/5-6 (1 November 2019) [47]-[48]; Human
Rights Watch I needed help, instead I was punished’ Abuse and Neglect of Prisoners with Disabilities in Australia 2018
https://www.hrw.org/sites/default/files/report pdf/australia0218 web.pdf; and the Prisons section of this Report.
101 See, e.g., Report of the Royal Commission and Board of Inquiry into the protection and detention of children in the
Northern Territory, (Final Report, 17 November 2017); Committee on the Rights of the Child, Concluding observations on
the combined fifth and sixth periodic reports of Australia, UN Doc CRC/C/AUS/CO/5-6 (1 November 2019) [47]-[48].
102 See The Office of the Public Guardian, Queensland Annual Report 2018–19 (Report, 2019) 9; see also Australian
Civil Society Shadow Report (n 64) and CPRD Concluding Observations on Australia, UN Doc CRPD/C/AUS/CO/2-3 (n
61).
103 The Committee on the Rights of the Child has called on all States Parties to raise their minimum age to at least 14
and has specifically urged Australia to do so: Committee on the Rights of the Child, General comment No. 24 (2019) on
children’s rights in the child justice system, UN Doc CRC/C/GC/24 (18 September 2019) [22]; Committee on the Rights
of the Child, Concluding observations on the combined fifth and sixth periodic reports of Australia, UN Doc
CRC/C/AUS/CO/5-6 (1 November 2019) [48(a)]. Numerous other UN committees and entities have called on Australia to
raise its minimum age of criminal responsibility in line with international standards: see, e.g., Committee on the
Elimination of Racial Discrimination, Concluding observations on the eighteenth to twentieth periodic reports of Australia,
UN Doc CERD/C/AUS/CO/18-20 (26 December 2017) [26(a)]; Human Rights Committee, Concluding observations on
the sixth periodic report of Australia, UN Doc CCPR/C/AUS/CO/6 (1 December 2017) [44]; Report of the Special
Rapporteur on the Rights of Indigenous peoples on her visit to Australia, UN Doc A/HRC/36/46/Add.2 (n 9) [77] and
[113(i)].
104 Manfred Nowak, Global study on children deprived of liberty, UN Doc A/74/136 (11 July 2019).
105 In 2016 Australian Governments tabled the Working Group on the Treatment of People Unfit to Plead or Found Not
Guilty by reason of Mental Impairment, Draft National Statement of Principles Relating to Persons Unfit to Plead or
Found Not Guilty By Reason of Cognitive or Mental Health Impairment . However, three years later, these Principles are
yet to be consulted on, endorsed or implemented. In 2016 the Australian Senate also tabled the Community Affairs
References Committee, Inquiry Report into the Indefinite Detention of People with Cognitive and Psychiatric Impairment
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(Report, November 2016). The Government is yet to respond to the Report. Most recently Australia was highly criticised
by the Committee on the Rights of Persons with Disabilities for making no progress in this regard, see CPRD Concluding
Observations on Australia, UN Doc CRPD/C/AUS/CO/2-3 (n 61) 7.
106 See ‘Australia’s 2nd Universal Periodic Review: Voluntary Commitments’, Human Rights Law Centre (Web Page).
See also: ‘Australia’s International Human Rights Obligations’, Law Council of Australia (Web Page).
107 Australian Bureau of Statistics, Prisoners in Australia, 2019 (Catalogue 4517.0, 4 December 2019); Jane AndrewJ
et.al. Prison Privatisation in Australia: The State of the Nation Accountability, Costs, Performance and Efficiency (Report,
University of Sydney Business School, 2016; Hayley Gleeson and Julia Baird, ‘Why are our prisons ful of domestic
violence victims?’ ABC News (online, 18 December 2019). In 2017 the Australian Law Reform Commission conducted
an Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples: Australian Law Reform
Commission, Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander
Peoples (Summary Report No 133, December 2017). Recommendations from the Final Report have yet to be
implemented.
108 Human Rights Watch, Interview: The Horror of Australia’s Prisons. Prisoners with Disabilities Serving Time in
Solitary, Face Physical, Sexual Abuse, (Interview with Kriti Sharma, 6 February 2018).
109 Human Rights Watch, “I Needed Help, Instead I Was Punished”: Abuse and Neglect of Prisoners with Disabilities in
Australia’ (Report, 6 February 2018).
110 Lorena Allam, Calla Wahlquist, Nick Evershed, ‘Aboriginal deaths in custody: Black Lives Matter protests referred to
our count of 432 deaths. It’s now 437’, The Guardian (online, 9 June 2020).
111 Hayley Gleeson and Julia Baird, ‘Why are our prisons full of domestic violence victims?’ ABC News (online, 18
December 2019).
112 Human Rights Law Centre and Change the Record, Over-represented and overlooked: the crisis of Aboriginal and
Torres Strait Islander women’s growing over-imprisonment (Report, May 2017).
113 Mandy Wilson et.al., ‘Violence in the Lives of Incarcerated Aboriginal Mothers in Western Australia’ (2017) 7(1) SAGE
Open 1; Rowena Lawrie, ‘Speak Out Speak Strong: Rising Imprisonment Rates of Aboriginal Women’ (2003) 8(2)
Australian Indigenous Law Reporter 81.
114 These must also be consistent with the National Plan to Reduce Violence against Women and Their Children.
115 Legislative Council Standing Committee on Social Issues, Parliament of New South Wales, Report into Children of
Imprisoned Parents (Report No 12, July 1997) 6.
116 Royal Commission into Child Protection and Youth Detention in the Northern Territory (Final Report, 17 November
2017), Queensland Independent Review of Youth Detention Centres (Confidential Report, December 2016); Commission
for Children and Young People, Victoria, The same four walls: Inquiry into the use of isolation, separation and lockdown
at places of youth detention in Victoria (Report, 2017); Office of the Inspector of Custodial Services, Western Australia,
Behaviour Management Practices at Banksia Hill (Report, June 2017); Inspector of Custodial Services, New South
Wales, Use of Force Against Detainees in NSW Juvenile Justice Centres (Report, 2018); Legal and Social Issues
Committee, Legislative Council, Parliament of Victoria, Inquiry into Youth Justice Centres in Victoria (Final Report, March
2018); Office of the Advocate for Children and Young People, New South Wales, What children and young people in
juvenile justice centres have to say (Report, 2019); Australian Institute of Health and Welfare, Youth Justice in Australia
(Report, 10 May 2019); Australian Institute of Health and Welfare, Young people in child protection and under youth
justice supervision: 2013-2014 (Report, Data Linkage Series No 21, 2016); Susan Baidawi and Rosemary Sheehan,
Cross-over kids: Effective responses to children and young people in the youth justice and statutory Child Protection
systems (Report to the Institute of Criminology, December 2019) and Ombudsman SA, Investigation concerning the use
of spit hoods in the Adelaide Youth Training Centre (Report, September 2019). In Tasmania a police investigation
resulted in charges of common assault being laid against a guard from Ashley Youth Detention Centre. In the ACT an
incident at Bimberi Youth Justice Centre on 6 May 2016 is, according to the ACT Human Rights Commission: “subject to
three separate external enquiries, including an investigation by the AFP.”
117 Mark Willacy, ‘The Watch House Files’, ABC News (online, 13 May 2019).
118 Garth den Heyer and Alan Beckley, ‘Police independent oversight in Australia and New Zealand’ (2013) 14(2) Police
Practice & Research 130, 130, 139.
119 The New South Wales example showing a 5% cut in budget over a four year period starting in 2018, despite having
initiating 1,083 more assessments in the 2018/2019 period than previous oversight body in 2015/2016. Michael
McGowan, ‘NSW police watchdog fully investigated just 2% of 'firehose' of complaints: Law Enforcement and Conduct
Commission says budget cuts mean it is being forced to ‘do more with less’’ The Guardian (online, 3 November 2019);
Garth den Heyer and Alan Beckley, (n 118) 138.
120 Louise Porter and Tim Prenzler, Police Integrity and Management in Australia: Global Lessons for Combating Police
Misconduct (Routledge, 2012), 4, 233.
121 Avital Mentovich et al., ‘Policing alienated minorities in divided cities’ (2018) Regulation & Governance 1, 2.
122 Kristina Murphy, Adrian Cherney and Marcus Teston, ‘Promoting Muslims’ Willingness to Report Terror Threats to
Police: Testing Competing Theories of Procedural Justice’ (2018) 36(4) Justice Quarterly 594, 594-597; Kent Roach,
‘The Eroding Distinction Between Intelligence and Evidence in Terrorism Investigations’ in Nicola McGarrity, Andrew
Lynch and George Williams (eds), Counter-Terrorism and Beyond (Routledge, 2010) 48, 49.
123 Police notably struggle in the context of violence against minority communities, with training being inconsistent
overall. Avital Mentovich et al. (n 121) 2; Toby Miles-Johnsona et al, ‘Police Perceptions of Prejudice: how police
awareness training influences the capacity of police to assess prejudiced motivated crime’ (2016) 28(6) Policing and
Society 730, 732.
124 Tamar Hopkins, Monitoring Racial Profiling - Introducing a scheme to prevent unlawful stops and searches by Victoria
Police (Report, Police Stop Data Working Group, Flemington & Kensington Legal Centre, August 2017).
125 Two major reviews of the rates of the incarceration of Aboriginal and Torres Strait Islander Peoples have been
conducted in the period since the Royal Commission without response from Federal Government. Lorena Allam, Calla
Wahlquist and Nick Evershed, ‘Indigenous Deaths in Custody worsen in the year of tracking by Deaths inside Project’,
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The Guardian (online, 23 August 2019); Lorena Allam, Calla Wahlquist, Nick Evershed, ‘Aboriginal deaths in custody:
Black Lives Matter protests referred to our count of 432 deaths. It’s now 437’, The Guardian (online, 9 June 2020).
126 Notably, whilst the rate of deaths in custody has declined since the Royal Commission, the rate of incarceration has
increased, resulting in increased numbers of deaths in custody, and disharmony between states on the implementation
of the 339 recommendations made in 1991: Lorena Allam and Calla Wahlquist, ‘Indigenous Deaths in Custody: key
recommendations stil not ful y implemented - Deloitte review of deaths in custody reveals that only two-thirds of
landmark royal commission’s recommendations have been fully implemented’, The Guardian (online, 25 October 2018).
127 Heather Nancarrow, Unintended Consequences of Domestic Violence: Gendered Aspirations and Racialised
Realities (Palgrave, 2019), 90, 113, 184.
128 Nafiseh Ghafournia and Patricia Easteal, ‘Help-Seeking Experiences of Immigrant Domestic Violence Survivors in
Australia: A Snapshot of Muslim Survivors’, (2019) July, Journal of Interpersonal Violence 1, 2-3.
129 Heather Nancarrow, Unintended Consequences of Domestic Violence: Gendered Aspirations and Racialised
Realities (Palgrave, 2019), 90, 113, 184.
130 Peter Davidson et al., Poverty in Australia 2020: Part one, Overview. ACOSSUNSW Poverty and Inequality
Partnership Report No.3 (Report, 2020).
131 Ibid.
132 Ibid. The Newstart Allowance falls $117 a week below the poverty line, and youth payments are $168 a week below
the line.
133 Peter Davidson et al., Poverty in Australia 2020: Part one, Overview. ACOSSUNSW Poverty and Inequality
Partnership Report No.2 (Report, 2020).
134 See, J. Rob Bray, ‘Seven years of evaluating income management ‐ what have we learnt? Placing the findings of the
New Income Management in the Northern Territory evaluation in context’ (2016) 51(4) Australian Journal of Social
Issues 449.
135 See Luke Henriques-Gomes, ‘Robo Debt Could Target Pensioners and ‘Sensitive’ Groups, Leaked Documents
Show’, The Guardian (online, 23 August 2019).
136 In 2014–15, 29% Aboriginal and Torres Strait Islander people 15 years and over had experienced homelessness:
Australian Bureau of Statistics, National Aboriginal and Torres Strait Islander Social Survey, 2014-15 (Catalogue No
4714.0, 28 April 2016). A review of remote housing in 2017 found overcrowding in 49% of very remote and 27% in
remote housing, with more than 20 people per house: Department of Prime Minister and Cabinet, Commonwealth of
Australia, The Remote Housing Review 2008-2018: A Review of the National Partnership Agreement on Remote
Housing and the Remote Housing Strategy 2008-2018 (Report, 2018) 20. Overcrowding negatively impacts physical and
mental health, children’s school attendance and is a key contributing factor and is a key contributing factor for assault
and sexual assault. Overcrowding also caused additional stresses on water supplies and sewage disposal systems,
causing failures and sewage overflow, strained shared amenities resulting in a lack of washing of people, clothes and
bedding (see Department of Prime Minister and Cabinet, Commonwealth of Australia, The Remote Housing Review
2008-2018: A Review of the National Partnership Agreement on Remote Housing and the Remote Housing Strategy
2008-2018 (Report, 2018). This Housing review did not include Aboriginal Homelands, Outstations, or non-remote
discrete communities.
137 Australian Bureau of Statistics, Census of Population and Housing: Estimating homelessness, 2016 (Catalogue No
2049.0, 14 March 2018).
138 Australian Bureau of Statistics, Housing Occupancy and Costs, 2017-18 (Catalogue No 4130.0, 17 July 2019).
139 At 4.4% in 2017, compared to nearly 20% for the UK: see ‘Affordable Housing Database’, Organisation for Economic
Co-operation and Development (Web Page, 2019); Australian Institute of Health and Welfare, Housing Assistance in
Australia 2018 (Web Report, Catalogue no HOU 296, 28 June 2018).
140 Homelessness Taskforce, Department of Families, Housing, Community Services and Indigenous Affairs, The Road
Home: A National Approach to Reducing Homelessness (White Paper, 2008).
141 See Australian Bureau of Statistics, Housing Occupancy and Costs, 2017-18 (Catalogue No 4030.0, 17 July 2019).
142 Closing the Gap aims to improve the lives of all Aboriginal and Torres Strait Islander Peoples. Australian governments
have worked together to deliver better health, education and employment outcomes for Aboriginal and Torres Strait
Islander Peoples, and to eliminate the difference between Aboriginal and Torres Strait Islander Peoples and other people
across a number of areas like health, education, employment and life expectancy. In December 2018 the Council of
Australian Governments (COAG) committed to forming a genuine formal partnership with Aboriginal and Torres Strait
Islander Peoples to enable them to decide on the priorities and lead on the progress of Closing the Gap.
The Coalition of Peaks is a representative body comprised of Aboriginal and Torres Strait Islander community controlled
peak-body organisations that have come together to partner with all Australian governments on designing, implementing
and evaluating the closing the gap strategy, a policy aimed at improving the lives of Aboriginal and Torres Strait Islander
Peoples. The Coalition of Peaks entered into a historic formal Partnership Agreement on Closing the Gap with the
Council of Australian Governments (COAG) which sets out shared decision making on Closing the Gap. Together, it has
been agreed to develop a new National Agreement on Closing the Gap, to be signed by COAG and the Coalition of
Peaks, which will set out joint actions over the next ten years to help improve the lives of Aboriginal and Torres Strait
Islander Peoples.
143 This is one of the largest ratios of any OECD nation. See Productivity Commission, Why a Better Health System
Matters, Shifting the Dial: 5 year Productivity Review, Supporting Paper 4 (Report, 2017) 11.
144 The 20% of Australians living in the lowest socioeconomic areas in 2014–15 were 1.6 times as likely as the highest
20% to have at least two chronic health conditions, such as heart disease and diabetes. Australians living in the lowest
socioeconomic areas lived about 3 years less than those living in the highest areas in 2009–2011: Australian Institute of
Health and Welfare, Australia’s health 2016 (Report, 13 September 2016), Chapter 4, 130.
145 For example, Australia lacks a universal dental scheme. See Stephen Duckett, Matt Cowgill and Hal Swerissen, Filing
the Gap: A Universal Dental Scheme for Australia (Report, Grattan Institute, March 2019).
146 Public Health Association Australia, Commonwealth Budget 2020-2021 Pre-Budget Submission (31 January 2020) 6.
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147 The Australia Institute, Polling – Bushfire Crisis and Concern about Climate Change (Report, January 2020) 5.
148 Poverty and poor living conditions contribute to high rates of cardiovascular disease for Aboriginal and Torres Strait
Islander Peoples (18% for remote regions), with 94% of cases of Acute Rheumatic Fever, and 92% of cases of Rhematic
Heart Disease involving Aboriginal and Torres Strait Islander Peoples. Kidney disease and renal failure in 2011-2015 for
Aboriginal and Torres Strait Islander Peoples was 6.8 times the rate of other people, with 18.6 times the rate in the NT,
and 12.7 times the rate in WA. Aboriginal and Torres Strait Islander Peoples also have 3 times the rate of blindness than
other people, and trachoma, caused by poor living conditions and over-crowding, was at 4% in identified Aboriginal
communities in 2017. Australia is the only developed country with trachoma. Diabetes impacts 13% of Aboriginal and
Torres Strait Islander Peoples, with a death rate of 5.2 times that of other people. Cancer accounted for 9% of the
disease burden for Aboriginal and Torres Strait Islander Peoples, and chronic respiratory disease is the third leading
cause of death among Aboriginal and Torres Strait Islander Peoples, with Aboriginal and Torres Strait Islanders babies
4.5 times more likely to die than other babies. See, Australian Indigenous Health InfoNet, Summary of Aboriginal and
Torres Strait Islander health status 2017 (Report, 2018) 10-21.
149 In 2016, an inquest was launched following 13 child deaths in the Kimberley in less than four years, including five
children aged between ten and 13. The Coroner recommended a greater focus on self-determination, consultation,
cultural education, increased and paid Aboriginal employment in service delivery, increased mental health services,
recreational facilities and educational engagement, language learning, together with education on preventing, increased
support for Foetal Alcohol Syndrome Disorder and the provision of alcohol rehabilitation with an emphasis on self-
determination. See, State Coroner, Record of Investigation into Death: Inquest into the deaths of thirteen children and
young persons in the Kimberley Region of West Australia (Report, 2017).
150 Ibid 268.
151 Ibid 334-336.
152 Ibid 295-297.
153 Ibid, 372. In a 2019 inquest into five deaths by suicide at Casuarina Prison, in which three of the deceased persons
were Aboriginal or Torres Strait Islander Peoples, the Coroner made a series of recommendations on the need to
improve mental health support and reduce the risk of suicide in the prison. See, State Coroner, Record of Investigation
into Death: deaths of five persons incarcerated at Casuarina Prison (Report, 2019) 128–129 [666]. The Coroner also
acknowledged that it is important that the cultural needs of Aboriginal and Torres Strait Islander prisoners are
recognised, and that Aboriginal and Torres Strait Islander prisoners are supported by networks of Aboriginal and Torres
Strait Islander Elders and support workers. See, State Coroner, Record of Investigation into Death: deaths of five
persons incarcerated at Casuarina Prison (Report, 2019) 65-66 [317]-[322].
154 State Coroner (n 149) 332.
155 Australian Bureau of Statistics, National Health Survey: First Results, 2017-18 (Catalogue No 4364.0.55.001, 12
December 2018).
156 Commission on Ending Childhood Obesity, World Health Organisation, Report of the Commission on Ending
Childhood Obesity (Report, 2016). Thank you to Professor Louise Baur for reviewing this section.
157 See, Human Rights Council of Australia, Oral Statement by Cristyn Davies to United Nations Human Rights Council,
41st session, agenda item 8 (24 June 2019).
158 Culturally safe healthcare refers to care that 1) respects human rights of self-determination and bodily autonomy 2)
ensures health professionals are trained in culturally safe gender affirming care; 3) that therapeutic agents are
subsidised and accessible; and 3) that provides a culturally safe informed consent model practiced across community-
based services and in general practice. National frameworks and up-to-date guidelines for healthcare must be developed
in partnership with community. In addition, Australia must (1) implement the Australian modification and implementation
of the ICD-11 (ensuring that all diagnostic coding of ‘Gender Incongruence’ are within a newly established Sexual Health
chapter and that all gender related coding is removed from the existing Mental Illness chapter), and (2) establish a
review of the Medicare Benefits Schedule, which allows public funding to be directed towards particular healthcare
services, to ensure the health system does not discriminate against people on the grounds of their gender identity and
sex characteristics. See, Cristyn Davies et al, ‘Australians of diverse sexual orientations and gender identities’, (2020)
Culture, Diversity and Health in Australia: Towards Culturally Safe Health Care; Michelle Telfer et al., Australian
Standards of Care and Treatment Guidelines for Trans and Gender Diverse Children and Adolescents (Report version
1.1, Melbourne Royal Children’s Hospital, 2018); Editorial, ‘Gender-affirming care needed for transgender children’
(2018) 391 (10140) The Lancet 2576; E Coleman et al, ‘Standards of Care for the Health of Transsexual, Transgender,
and Gender-Nonconforming People, Version 7’ (2012) 13(4) International Journal of Transgenderism 165-232; Cheung
et al ‘Position statement on the hormonal management of adult transgender and gender diverse individuals’
(2019) 211(3) Medical Journal of Australia 127. Thank you to Associate Professor Michelle Telfer and Professor S.
Rachel Skinner for reviewing this section.
159 The Human Rights Commission states “climate change threatens the enjoyment of all human rights, including the
rights to health, water, food, housing, self-determination, and life itself. Climate change is man-made. It is a result of
policy choices that breach the affirmative obligations of States to respect, protect and fulfil human rights”: ‘Human Rights
and Climate Change’, Office of the High Commissioner, United Nations Human Rights (Fact Sheet, October 2018), The
Paris Agreement preamble states “Parties should, when taking action to address climate change, respect, promote and
consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local
communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to
development, as well as gender equality, empowerment of women and intergenerational equity."
160 Quarterly Updates of Australia’s National Greenhouse Gas Inventory in ‘Publications and Resources’, Department of
Agriculture, Water and the Environment (Web Page, September 2019).
161 The Climate Action Tracker is an independent scientific analysis that tracks government climate action and measures
it against the globally agreed Paris Agreement. Its December 2019 update has rated Australia’s 2030 target as
“insufficient” and is at the less stringent end of what would be a fair share of the global effort. See, ‘Australia’, Climate
Action Tracker (Web Page, 2 December 2019).
32
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162 According to analysis by NGO Market Forces, national tax-based subsidies that encourage fossil fuel production and
consumption add up to $12 bil ion every year, see ‘How your tax dollars subsidise fossil fuels’, Market Forces (Web
Page). According to analysis by the Australian Conservation Foundation (ACF) after the 2019/2020 Federal budget
release, the Australian federal Government spends $4.36 subsidising pol ution for every dollar it spends on climate
action, see, ‘Morrison Government's Budget 2019-20: Devaluing Our Environment While Fuelling Global
Warming’, Australian Conservation Foundation (Media Release, 2 April 2019).
163 Transition planning is an opportunity to ensure job creation, social justice, poverty eradication, and grassroots
leadership and empowerment, including for people experience multiple forms of discrimination.
164 A carbon price and ending fossil fuels subsidies are two ways to fund adaptation and just transition measures.
165 Committee on the Rights of the Child, Concluding observations on the combined fifth and sixth periodic reports of
Australia, UN Doc CRC/C/AUS/CO/5-6 (1 November 2019) [40].
166 Australia has committed $1bn over 5 years 2015-2020 representing 0.3% of global flows. Academics and OFMA have
estimated Australia’s contribution should be 2.4% of global flows which is equivalent to at least $3.2bil ion. See,
Australian Council for International Development (ACFID), ‘Australian Development Cooperation in a Time of
Contestation: AFCIF Submission to the 2019-20 Federal Budget’ (Report, January 2019), 9. A carbon price and ending
fossil fuels subsidies are two ways to fund adaptation and just transition measures.
167 Australia’s ODA reduced by over 30% between 2013 and 2018. See OECD Development Assistance Committee,
‘Development Co-operation Peer Reviews: Australia 2018’ (Report, 26 March 2018).
168 Performance has fallen year-on-year against the 80% gender target, from a high of 78% in FY 2015-16 down to 75%
in 2017-18. See, Commonwealth of Australia, DFAT, ‘Performance of Australian Aid 2017-18’ (Report, 2 April 2019).
169 International Women’s Development Agency, ‘Making Infrastructure Work for Gender Equality’ (Media release, 30
May 30 2019); see, HELP Resources Inc. et al, Shadow report to the 70th Session of CEDAW: Review of Australia
Extraterritorial Obligations (June 2018).
170 Australian Charities and Not-For-Profits Commission, ‘External Conduct Standard Four: Protection of Vulnerable
Individuals’.
171 See, ACFID Child Rights Community of Practice and ReThink Orphanages Australia, Working with Children in
Residential Care: Implications of the ACNC External Conduct Standards for Australian Charities (Report, 2019).
172 Australian Government Department of Health, Eighth National HIV Strategy 2018-2022 (Report, 2018).
173 In November 2019, the Northern Territory passed a bil to fully decriminalise sex work in the NT, ensuring that sex
workers can access workplace health and safety protections. This places NT as only the third jurisdiction in the world to
decriminalise sex work, alongside NSW which was the first.
174 The first domestic case of COVID-19 in Australia was confirmed on 25 January 2020. See the Hon. Greg Hunt MP,
First Confirmed Case of Novel Coronavirus in Australia (Media Release, Department of Health, 25 January 2020). After
this, cases significantly increased and major lockdown measures occurred in mid-March 2020. See Prime Minister Scott
Morrison, Update on Coronavirus Measures (Media Statement, 18 March 2020).
175 As at 3 July 2020, fewer than 9,000 people have fallen ill from COVID-19 and 104 people have died - far fewer than
projected. See Australian Government, ‘Coronavirus (COVID-19) Current Situation and Case Numbers’ (3 July 2020)
<https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/coronavirus-covid-19-current-
situation-and-case-numbers>.
176 Michelle Bachelet, UN High Commissioner for Human Rights, COVID-19 Pandemic - Informal Briefing to the Human
Rights Council (Statement, 9 April 2020).
177 The Australian Medical Association, Submission No 86 to the Select Committee on COVID-19, Inquiry into the
Australian Government’s Response to the COVID-19 Pandemic (28 May 2020) 9.
178 Ibid. The AMA’s submission specifically notes the need for the Australian Government to renew and expand its focus
on mental health to support the population as it emerges from the health and social effects of the pandemic.
179 This occurred at both a Commonwealth, State and Territory level, making the response complex and varying across
Australia.
180 Human Rights Law Centre, Submission to the Select Committee on COVID-19, Inquiry into the Australian
Government’s Response to the COVID-19 Pandemic (3 June 2020) 6; Civil Liberties Australia, Submission No 76 to the
Select Committee on COVID-19, Inquiry into the Australian Government’s Response to the COVID-19 Pandemic (27
May 2020) 2-3.
181 Ibid.
182 Ibid.
183 The Commission was established to lead the “non-health” aspects of Australia’s recovery. See the National COVID-
19 Coordination Committee, Terms of Reference <https://www.pmc.gov.au/nccc/terms-reference>.
184 Human Rights Law Centre, above n 180, 7.
185 Ibid 14-16.
186 National Aboriginal and Torres Strait Islander Legal Services, NATSILS Supports Black Lives Matter Rallies Across
Australia (Media Release, 5 June 2020).
187 See pages 12-13 of the NGO Report. There have been at least 437 deaths in custody since the 1991 Royal
Commission into Deaths in Custody. See Lorena Allam, Calla Wahlquist and Nick Evershed, “Aboriginal deaths in
custody: Black Lives Matter protests referred to our count of 432 deaths. It’s now 437” The Guardian (online, 9 June
2020) <https://www.theguardian.com/australia-news/2020/jun/09/black-lives-matter-protesters-referred-to-our-count-of-
432-aboriginal-deaths-in-custody-its-now-437>.
188 National Aboriginal and Torres Strait Islander Legal Services, Submission No 141 to the Select Committee on
COVID-19, Inquiry into the Australian Government’s Response to the COVID-19 Pandemic (28 May 2020) 26.
189 Human Rights Law Centre, Joint Submission No 79 to the Select Committee on COVID-19, Inquiry into the Australian
Government’s Response to the COVID-19 Pandemic (27 May 2020) 6-7.
190 Disability and Aged Care OPCAT Working Group, Submission to the Select Committee on COVID-19, Inquiry into the
Australian Government’s Response to the COVID-19 Pandemic (June 2020).
33
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191 National Aboriginal and Torres Strait Islander Legal Services, above n 186, 35.
192 Equality Rights Al iance, Submission No 88 to the Select Committee on COVID-19, Inquiry into the Australian
Government’s Response to the COVID-19 Pandemic (28 May 2020) 4; Community Legal Centres Australia, Submission
to the Select Committee on COVID-19, Inquiry into the Australian Government’s Response to the COVID-19
Pandemic(12 June 2020) 6.
193 Equality Rights Al iance, ibid, 6.
194 National Aboriginal and Torres Strait Islander Legal Services, above n 186, 32; Aboriginal Medical Services Alliance
(NT), Submission to the Select Committee on COVID-19, Inquiry into the Australian Government’s Response to the
COVID-19 Pandemic (1 June 2020) 5-6; National Aboriginal Community Controlled Health Organisation, Submission No
64 to the Select Committee on COVID-19, Inquiry into the Australian Government’s Response to the COVID-19
Pandemic (28 May 2020) 7-8, 25. There is also deep concern about the virus being spread to Aboriginal and Torres
Strait Islander Peoples in the Northern Territory and other remote regions by US military troops and mining operations,
and with the imminent opening of NT borders. See Keira Jenkins, “‘Shut it Down’: Traditional Owners Call for a Stop to
the NT’s FIFO Mining Workers” NTIV (Online, 26 March 2020) <https://www.sbs.com.au/nitv/article/2020/03/26/shut-it-
down-traditional-owners-call-stop-nts-fifo-mining-workers>;
195 ABS (2020), 6160.0.55.001 - Weekly Payroll Jobs and Wages in Australia, Week ending 18 April 2020, viewed 7 May
2020 <https://www.abs.gov.au/ausstats/abs@.nsf/mf/6160.0.55.001>.
196 Equality Rights Al iance, above n 192, 3-4
197 Children and Young People with Disability Australia, Submission to the Select Committee on COVID-19, Inquiry into
the Australian Government’s Response to the COVID-19 Pandemic (28 May) 2-3.
198Westerly, Submission No 115 to the Select Committee on COVID-19, Inquiry into the Australian Government’s
Response to the COVID-19 Pandemic (28 May 2020) 4.
199 Australian Youth Affairs Coalition, Young Australians and our Response to COVID-19 - Member Briefing (May 2020)
1-2.
200 Claudia Farhart, ‘How is Each State Enacting the Moratorium on Rental Evictions?’ SBS News (Online, 13 April 2020)
<https://www.sbs.com.au/news/how-is-each-state-enacting-the-moratorium-on-rental-evictions>.
201 The Australian Government, Economic Response to the Coronavirus <https://treasury.gov.au/coronavirus>.
202 Human Rights Law Centre, above n 180, 8-9; Refugee Advice and Casework Service, Submission No 68 to the
Select Committee on COVID-19, Inquiry into the Australian Government’s Response to the COVID-19 Pandemic (28
May 2020) 1-4.
203 Human Rights Law Centre, Australians’ Right to Protest’ (Joint Statement, 18 June 2020)
<https://www.hrlc.org.au/news/2020/6/18/australians-right-to-protest>.
204 Australian Council of Social Services, Submission No 130 to the Select Committee on COVID-19, Inquiry into the
Australian Government’s Response to the COVID-19 Pandemic (26 May 2020) 4.
205 Aboriginal Peak Organisations Northern Territory, Submission to the Select Committee on COVID-19, Inquiry into the
Australian Government’s Response to the COVID-19 Pandemic (4 June 2020) 2; National Aboriginal Community
Controlled Health Organisation, above n 194, 7-8, 25; Aboriginal Medical Services Al iance (NT), above n 194, 5-6.
34
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Gregory Parkhurst
s 22
1
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s 22
2
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s 22
s 22
From: Christopher Knaus <xxxxxxxxxxx.xxxxx@xxxxxxxxxxx.xxx>
Sent: Tuesday, 25 June 2019 2:57 PM
To: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: Media query: private health insurers and PEC rejections
Hi team,
Apologies in advance for the lengthy email, it's a rather complex inquiry.
I have a series of questions about the Commonwealth Ombudsman's dealings with three private health
insurers. The dealings date back to 2014, and involve Bupa, NIB, and HCF, and relate to their rejection of
claims due to pre-existing conditions (PEC). The Private Health Insurance Act requires insurers to obtain
the "opinion of a medical adviser appointed by the health insurer" on whether symptoms existed within six
months of taking out the policy, before they reject a claim on PEC grounds.
In 2016, Bupa publicly acknowledged it had repeatedly failed to obtain these medical opinions for 7740
claimants between 2011 and 2016.
I have evidence showing the following:
- the Ombudsman had evidence to suggest Bupa was illegally rejecting claims by failing to appoint a
medical practitioner as early as 2014. It did not act until 2016, when Bupa notified it that there were 7740
claimants affected.
- In 2016, the Cwth Ombudsman believed Bupa had falsified documents that hid the nature and scale of the
breach from the Ombudsman. The insurer had claimed the error was just an "oversight" in its processes.
- in 2016, the Cwth Ombudsman had cause to question HCF about whether it had obtained medical reviews
in PEC cases. HCF said that it had, but failed to provide any evidence to back up its claims. No further
action was taken.
- in 2018, the Cwth Ombudsman again had cause to question HCF and request evidence of medical reviews
in a PEC case. No such evidence was provided. Instead, the Ombudsman employee investigating the matter
was sidelined and directed not to consider any more PEC cases. This lasted four months, until the employee
was restored to normal duties.
- in 2018, the Cwth Ombudsman had cause to investigate NIB for its failure to appoint a medical
practitioner to review PEC case. NIB admitted to the Ombudsman that it had not been appointing medical
practitioners in some PEC cases over a period of seven years.
3
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- the NIB case has not been made public in any way. NIB has been allowed to deal with it internally. The
matter was also referred to the department of health, but it has made no public statement about the case.
This has left those with NIB health insurance - including affected claimants - in the dark.
My questions are:
- why did the Cwth Ombudsman not act on the Bupa case in 2014, when it was first identified?
- what action did the Cwth Ombudsman take over Bupa's alleged falsification of records. What records were
falsified? in what way were they falsified?
- why did the Ombudsman not demand that HCF produce evidence that it had appointed medical
practitioners?
- why did it sideline an investigator who was considering the HCF matter?
- why has the Ombudsman made no public statement about the NIB case? why has the public not been
informed that a major insurer has illegally rejected claims over a period of seven years?
I was hoping for a response by 4pm tomorrow.
Many thanks,
-----
Christopher Knaus Reporter
The Guardian | Australia
-----
+61 (0) 422 283 681
xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx
-----
twitter: @knausc
-----
Level 3, 19 Foster St
Surry Hills NSW 2010
theguardian.com/au
-----
This e-mail and all attachments are confidential and may also be privileged. If you are not the
named recipient, please notify the sender and delete the e-mail and all attachments immediately.
Do not disclose the contents to another person. You may not use the information for any purpose,
or store, or copy, it in any way. Guardian News & Media Limited is not liable for any computer
viruses or other material transmitted with or as part of this e-mail. You should employ virus
checking software.
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
4
Document 23
Contains deletions under FOI
-----
Christopher Knaus Reporter
The Guardian | Australia
-----
+61 (0) 422 283 681
xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx
-----
twitter: @knausc
-----
Level 3, 19 Foster St
Surry Hills NSW 2010
theguardian.com/au
-----
This e-mail and all attachments are confidential and may also be privileged. If you are not the
named recipient, please notify the sender and delete the e-mail and all attachments immediately.
Do not disclose the contents to another person. You may not use the information for any purpose,
or store, or copy, it in any way. Guardian News & Media Limited is not liable for any computer
viruses or other material transmitted with or as part of this e-mail. You should employ virus
checking software.
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
2
Document 24
Contains deletions under FOI
Gregory Parkhurst
From:
Rodney Walsh
Sent:
Thursday, 27 June 2019 2:29 PM
To:
Jaala Hinchcliffe; Kim s 47F
Alison s 47F
Cc:
Michael Manthorpe; Dermot Walsh
Subject:
PHIO media enquiry [SEC=UNCLASSIFIED]
All – I have spoken with the Guardian journalist, Christopher Knaus, regarding his deadline for our response.
I have said that a response today, given the range of matters he has raised, was not reasonable.
We have agreed on Monday but with a caveat that I call him if we are in danger of not meeting that.
I suggest we meet tomorrow to discuss where we are at?
Rodney
1
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Gregory Parkhurst
s 22
From: Kim Armstrong
Sent: Thursday, 5 December 2019 8:44 AM
To: Rodney Walsh ; Jaala Hinchcliffe
Cc: Carmen s 47F
; Lisa s 47F
Subject: Department of Home Affairs ‐ re PID media [SEC=UNCLASSIFIED]
Importance: High
Hi Rodney/Jaala,
I have just taken a call from s 47F who is the Director of Internal investigations, professional standards at the
Department of home affairs.
He is wanting to speak to someone regarding the veracity of claims in this media article which was published late
yesterday: https://www.theguardian.com/australia‐news/2019/dec/04/whistleblower‐lodges‐complaint‐about‐
peter‐dutton‐in‐case‐of‐drug‐trafficker‐spared‐deportation
We were contacted by Christopher Knaus at the Guardian late last week, please see attached our formal response
back noting Michael also asked Carmen to brief him, if in fact we did receive the complaint.
Can you advise who is the best person to contact s 47F His contact number is s 47E
.
Kind regards
Kim s 47F
Communication Manager
1
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COMMONWEALTH OMBUDSMAN
Phone:s 47E
Email:s 47E
Website: ombudsman.gov.au
Influencing systemic improvement in public administration
2
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Disclosed under FOI
Level 3, 19 Foster St
Surry Hills NSW 2010
theguardian.com/au
-----
This e-mail and all attachments are confidential and may also be privileged. If you are not the
named recipient, please notify the sender and delete the e-mail and all attachments immediately.
Do not disclose the contents to another person. You may not use the information for any purpose,
or store, or copy, it in any way. Guardian News & Media Limited is not liable for any computer
viruses or other material transmitted with or as part of this e-mail. You should employ virus
checking software.
Guardian News & Media Limited is a member of Guardian Media Group plc. Registered Office: PO Box 68164, Kings
Place, 90 York Way, London, N1P 2AP. Registered in England Number 908396
2
Document 27
Disclosed under FOI
Gregory Parkhurst
From:
Rodney Walsh
Sent:
Monday, 1 July 2019 3:10 PM
To:
xxxxxxxxxxx.xxxxx@xxxxxxxxxxx.xxx
Cc:
Media
Subject:
Media query: private health insurers and PEC rejections [SEC=UNCLASSIFIED]
Dear Mr Knaus
Thank you for your enquiry to the Office of the Commonwealth Ombudsman concerning pre‐existing condition (PEC)
cases in relation to three private health insurers. While the Office investigates in private and therefore does not
provide comment on individual complaints and investigations, we have considered the matters that you have
referred to in your email and are satisfied that we dealt with the matters that were referred to us in accordance
with our processes for PEC cases, which we have set out for you below. Given the information that was before us at
the relevant times, we are satisfied that we took appropriate actions. We note that two of the insurers subject to
your inquiries were appropriately referred to the regulator. The third insurer was not referred to the regulator
because we did not consider that it was necessary to do so.
Background to PHIO role
The Private Health Insurance Ombudsman (PHIO) was merged into the Commonwealth Ombudsman in 2015. In this
role, our function is to protect the interests of private health consumers. This includes investigating complaints from
consumers about pre‐existing condition (PEC) decisions and ensuring the PEC rules have been correctly applied by
the insurer. The Office acts as an independent third party when dealing with complaints about PEC waiting periods.
PHIO process for PEC complaints
When the Office receives a complaint from a member about the application of PEC waiting periods, our process is to
request copies of relevant documentation including:
Medical certificate from the member’s GP.
Medical certificate from the member’s specialist.
The assessment and decision from the insurer’s medical advisor.
The outcome letter/email from the insurer to the member.
Any further information that the medical advisor has used to reach their decision – e.g. hospital admission
notes, specialist referral letters, medical records.
In some cases, some of this information may not be available – e.g. in emergency cases there may be no GP
or specialist notes and the insurer may rely on hospital admission notes instead.
The Office’s PHIO case officer will assess the information provided by the insurer and will either:
Finalise the complaint assessment and advise the complainant and insurer of the outcome.
Seek guidance on the complaint through discussion at a PHIO case meeting.
Escalate the complaint and seek guidance from PHIO management on how best to progress the complaint,
including whether the insurer has made the decision in accordance with the Act.
Steps taken by the Office to finalise PEC complaints:
If our assessment concludes that the PEC rules were correctly applied by the insurer, the case officer will
write to the complainant and the insurer notifying of our decision and advising that the complaint will be
finalised.
If our assessment suggests the PEC rules were not correctly applied or the case is complex/ambiguous, the
Office will seek the complainant’s permission to send the case to an Independent Medical Advisor (IMA) for
review:
o If the IMA agrees that the insurer has correctly applied the PEC rules, the case will finalised.
o If the IMA does not agree that the insurer has correctly applied the PEC rules, our case officer will
write back to the insurer requesting their medical practitioner reconsider the case.
1
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In making determinations about complaints about the PEC waiting period, the Office ensures the waiting period has
been applied correctly and that the fund and hospital have complied with the Pre‐Existing Condition Best Practice
Guidelines. In circumstances where individual complaints highlight systemic issues with the application of the
private health insurance regulatory framework, the Office may provide feedback to the insurer in our complaint
finalisation correspondence, or the Ombudsman may initiate an own investigation or refer the matter to the
regulator, for PEC matters this would be the Department of Health.
For more about the Ombudsman’s role in PEC cases, please see:
http://www.ombudsman.gov.au/publications/brochures‐and‐fact‐sheets/factsheets/all‐fact‐sheets/phio/the‐pre‐
existing‐conditions‐rule
We would be happy to meet with you to discuss our role in PEC cases if that would be of assistance.
Regards
Rodney Lee Walsh | Chief Operating Officer
Media Team
From: Christopher Knaus <xxxxxxxxxxx.xxxxx@xxxxxxxxxxx.xxx>
Sent: Tuesday, 25 June 2019 2:57 PM
To: Media <xxxxx@xxxxxxxxx.xxx.xx>
Subject: Media query: private health insurers and PEC rejections
Hi team,
Apologies in advance for the lengthy email, it's a rather complex inquiry.
I have a series of questions about the Commonwealth Ombudsman's dealings with three private health
insurers. The dealings date back to 2014, and involve Bupa, NIB, and HCF, and relate to their rejection of
claims due to pre-existing conditions (PEC). The Private Health Insurance Act requires insurers to obtain
the "opinion of a medical adviser appointed by the health insurer" on whether symptoms existed within six
months of taking out the policy, before they reject a claim on PEC grounds.
In 2016, Bupa publicly acknowledged it had repeatedly failed to obtain these medical opinions for 7740
claimants between 2011 and 2016.
I have evidence showing the following:
- the Ombudsman had evidence to suggest Bupa was illegally rejecting claims by failing to appoint a
medical practitioner as early as 2014. It did not act until 2016, when Bupa notified it that there were 7740
claimants affected.
- In 2016, the Cwth Ombudsman believed Bupa had falsified documents that hid the nature and scale of the
breach from the Ombudsman. The insurer had claimed the error was just an "oversight" in its processes.
- in 2016, the Cwth Ombudsman had cause to question HCF about whether it had obtained medical reviews
in PEC cases. HCF said that it had, but failed to provide any evidence to back up its claims. No further
action was taken.
- in 2018, the Cwth Ombudsman again had cause to question HCF and request evidence of medical reviews
in a PEC case. No such evidence was provided. Instead, the Ombudsman employee investigating the matter
was sidelined and directed not to consider any more PEC cases. This lasted four months, until the employee
was restored to normal duties.
- in 2018, the Cwth Ombudsman had cause to investigate NIB for its failure to appoint a medical
practitioner to review PEC case. NIB admitted to the Ombudsman that it had not been appointing medical
practitioners in some PEC cases over a period of seven years.
2
Document 27
Disclosed under FOI
- the NIB case has not been made public in any way. NIB has been allowed to deal with it internally. The
matter was also referred to the department of health, but it has made no public statement about the case.
This has left those with NIB health insurance - including affected claimants - in the dark.
My questions are:
- why did the Cwth Ombudsman not act on the Bupa case in 2014, when it was first identified?
- what action did the Cwth Ombudsman take over Bupa's alleged falsification of records. What records were
falsified? in what way were they falsified?
- why did the Ombudsman not demand that HCF produce evidence that it had appointed medical
practitioners?
- why did it sideline an investigator who was considering the HCF matter?
- why has the Ombudsman made no public statement about the NIB case? why has the public not been
informed that a major insurer has illegally rejected claims over a period of seven years?
I was hoping for a response by 4pm tomorrow.
Many thanks,
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Christopher Knaus Reporter
The Guardian | Australia
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+61 (0) 422 283 681
xxxxxxxxxxx.xxxxx@xxxxxxxx.xx.xx
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twitter: @knausc
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Level 3, 19 Foster St
Surry Hills NSW 2010
theguardian.com/au
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