National Human Rights
Action Plan
Comments on the Attorney-General
Department’s background paper
February 2011
About Children by Choice Association Inc:
Children by Choice provides counselling, information and education services on all options with an unplanned
pregnancy, including abortion, adoption and parenting. We provide a Queensland-wide counselling, information
and referral service to women experiencing unplanned pregnancy, deliver sexual and reproductive health
education sessions in schools, and offer training for GPs and other health and community professionals on
unplanned pregnancy options. Through our active volunteer base, we campaign for the removal of abortion
provisions from the Criminal Code of Queensland, and many reproductive health issues such as paid maternity
leave.
Children by Choice supports women’s access to all options with an unplanned pregnancy, including abortion, and
have been involved in helping women access these options since the service began operation in 1972. Children by
Choice is the only independent, not-for-profit women’s service dedicated to unplanned pregnancy in Australia.
Children by Choice is recognised nationally and internationally as a key advocacy group for the needs and rights of
women in relation to access to reproductive health services with regard to unplanned pregnancy.
Our vision: all women can freely determine their sexual and reproductive health choices.
Key values underpin our work across all areas of the Association’s activities. We are:
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pro choice and woman centred
ethical and evidence based
non-judgemental and unbiased
confidential and respectful
committed to social justice, diversity and equity, and
dedicated to promoting self determination.
Contact
Kate Marsh
Public Liaison Officer
T 07 3357 9933
E [email protected]
PO BOX 2005 Windsor Q 4030
Rights to be included in the new Action Plan
Children by Choice welcomes the Federal Government’s announcement of the development of a new National
Human Rights Action Plan, and its commitment to ensuring extensive consultation and input from the NGO sector
and other key stakeholders.
As an organisation working to advance women’s equality and improve reproductive health, Children by Choice
believes a new Action Plan must contain measures to improve women’s substantive equality and enshrine the right
to optimum health and wellbeing. Rights we would like to highlight as being of particular importance in relation to
women’s reproductive health are:
- the right to equality before the law;
- the right to health;
- the right to bodily and psychological integrity; and
- the right to education.
A new National Human Rights Action Plan for Australia: Comments on the Department of Attorney-General’s background paper
Children by Choice Association Inc
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Right to equality before the law
Enhanced protection of the right to equality before the law must be a priority of the new Action Plan. Children by
Choice fully endorses the following statements and recommendations from a submission to this background paper
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from the Coalition of Community Legal Centres .
The rights to non-discrimination and substantive equality are fundamental components of human rights law that
are entrenched in a wide range of human rights treaties.i At present, these rights are not adequately protected in
Australia.
The 2009 National Human Rights Consultation Report noted that that ‘[a] large number of submissions focused
on the inadequacies of anti-discrimination legislation’ and recommended that the Federal Government audit and
amend anti-discrimination legislation to ensure that it complies with Australia’s human rights obligations. ii
Internationally, the UN Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the
Committee on the Elimination of Discrimination Against Women and the Committee on the Elimination of Racial
Discrimination have all recommended that Australia strengthen its antidiscrimination laws.iii
Most recently, the inadequacy of our legal protections against discrimination received significant attention at the
Universal Periodic Review of Australia, where several countries made recommendations that Australian laws
ensure comprehensive protection of the rights to equality and non-discrimination.iv
We note that the mere harmonisation of Federal anti-discrimination laws, referred to in the Background Paper,
will not adequately address the gaps in Australia’s legal framework. For this project to be a legitimate human
rights initiative, the reform must be based on a transparent and consultative process and must aim to strengthen
and modernise our anti-discrimination regime.
Accordingly, we make the following recommendations:
Recommendation 1
The Government should ensure that the harmonisation of anti-discrimination laws is based on full and
transparent consultation with relevant stakeholders, most importantly of individuals and groups affected by
discrimination.
Recommendation 2
The National Action Plan should contain a commitment to enact comprehensive equality legislation that
addresses all prohibited grounds of discrimination, promotes substantive equality and provides effective
remedies against discrimination, including systemic and intersectional discrimination.
Recommendation 3
The National Action Plan should include a commitment that the Government will conduct an inquiry into a
constitutional amendment aimed at enshrining the right to equality.
i.
ii.
iii.
iv.
1
See, eg, International Covenant on Civil and Political Rights, Dec. 16, 1966 (entered into force Mar. 23, 1976), 999 UNTS
171 (ICCPR), arts 2, 3, 26; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966 (entered into
force Jan. 3, 1976), 993 UNTS 3 (ICESCR), art 2; Convention on the Elimination of All Forms of Discrimination against
Women, Dec. 18, 1979 (entered into force Sept. 3, 1981), 1249 UNTS 13 (CEDAW); International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD), Dec. 21, 1965 (entered into force Jan. 4, 1969), 660 UNTS 195;
Convention on the Rights of Persons with Disabilities, Dec. 13, 2006 (entered into force May 3, 2008), GA Res 61/106, UN
Doc A/61/611 (2006) (CRPD), art. 5.
National Human Rights Consultation Committee Report (September 2009), Recommendation 4.
Human Rights Committee, Concluding Observations: Australia, CCPR/C/AUS/CO/5, 2 April 2009 [12], Committee on
Economic, Social and Cultural Rights, Concluding Observations: Australia, E/C.12/AUS/CO/4, 12 June 2009 [14];
Committee on the Elimination of Discrimination Against Women, Concluding Observations: Australia, CEDAW/C/AUS/CO/7,
30 July 2010 [25]; Committee on the Elimination of Racial Discrimination, Concluding Observations: Australia,
CERD/C/AUS/CO/15-17, 27 August 2010 [10].
See the Draft Report of the Working Group on the Universal Periodic Review of Australia, available at
http://www.hrlrc.org.au/files/Draft-report-on-UPR-of-Australia.doc.
The members of the Coalition of Australian Community Legal Centres include the Human Rights Law Resource Centre, the Public Interest
Advocacy Centre, the Redfern Legal Centre, the National Association of Community Legal Centres, the Women’s Legal Centre (ACT), the
Federation of Community Legal Centres, the Public Interest Law Clearing House, Women’s Legal Service NSW, and the NSW Disability
Discrimination Legal Centre. Enquiries can be directed to Rachel Ball of the Human Rights Law Resource Centre on 03 8636 3344 or at
[email protected].
A new National Human Rights Action Plan for Australia: Comments on the Department of Attorney-General’s background paper
Children by Choice Association Inc
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Right to health
Despite the right to health and health care being universally acknowledged, Children by Choice believes not
enough is being done to protect and promote this right in Australia. Currently, people are prevented from accessing
health care due to their geographic location or isolation, their low income, their disability, and/or the lack of
culturally-appropriate health services and interpreters.
Of particular relevance to Children by Choice and our clients is access to sexual and reproductive health rights. We
reference the Beijing Declaration’s definition of sexuality and sexual rights, being that:
‘[t]he human rights of women include their right to have control over and decide freely and
responsibly on matters related to their sexuality, including sexual and reproductive health, free of
coercion, discrimination and violence. Equal relationships between men and women in matters of
sexual relations and reproduction, including full respect for the integrity of the person, require mutual
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respect, consent and shared responsibility for sexual behaviour and its consequences’.
In Queensland today, accessing abortion remains a crime, sexual and reproductive health services can be difficult
to access due to geographic isolation or marginalisation, sexuality education in schools is inconsistent, sexually
transmitted infection rates are rising rapidly, and contraception is not always readily available. Young women,
Aboriginal and Torres Strait Islander women, culturally and linguistically diverse women, and women with
disabilities, are further at risk of ill health, and face greater barriers in accessing appropriate sexual and
reproductive health information and services.
Sexual and reproductive health is widely recognised as a major priority area for improving women’s health around
the world as well as in local jurisdictions – it was one of the seven key priority areas of the original National
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Women’s Health Policy in 1989, remains one of four priority health issues in the 2010 National Women’s Health
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Policy, and is one of three priority issues in the current Victorian Women’s Health and Wellbeing Strategy. The
rights enshrined in the South African constitution also specifically states that ‘Everyone has the right to have
access to health care services, including reproductive health care’, and that ‘The state must take reasonable
legislative and other measures, within its available resources, to achieve the progressive realisation of each of [this]
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right.’
We recommend that the National Action Plan’s work on the right to health explicitly include
the right to access health care services, including reproductive health care.
Access to sexual and reproductive health information and services varies widely across Australia, from state to
state and region to region. This is particularly true in relation to pregnancy termination services, with varying
degrees of legality from state to state severely impacting on women’s access to these services. We note the
background paper on the new Action Plan includes a reference to working with state and territory governments on
the actions they will be taking to improve human rights in their jurisdictions. Children by Choice believes there is
significant work to be done in harmonising laws and policies relating to sexual and reproductive health across the
country, and that the new Action Plan should include some engagement with state and territory governments on
this issue.
We recommend that the Action Plan include a commitment to engage with state and territory
governments to ensure the right to health, including sexual and reproductive health, is
adequately and equally protected and promoted across national jurisdictions.
People have the right to make their own decisions about their health and should not be coerced into making
choices due to a lack of accurate information. This includes information about contraception and abortion.
Pregnancy counselling telephone services in Australia are not currently subject to the same misleading advertising
2
From the Beijing Declaration and its Platform for Action (1995). Cited in: K O’Rourke, Time for a national sexual and reproductive health
strategy for Australia Sexual and Reproductive Health Strategy Working Group, Public Health Association of Australia, 2008, p3
3
Department of Community Services and Health National Women’s Health Policy: Advancing Women’s Health in Australia p7. Commonwealth
Government Canberra 1989. Available online at http://www.awhn.org.au/content/view/58/69/. Accessed 16/04/2010.
4
Department of Health and Ageing National Women’s Health Policy 2010 Commonwealth Government, Canberra 2010. Available online at
http://www.health.gov.au/womenshealthpolicy.
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Department of Human Services Women’s health: everyone’s business – Victorian Women’s Health and Wellbeing Strategy Phase Two 20062010 p2. Victorian Government, Melbourne 2006. Available online at http://www.health.vic.gov.au/vwhp/publications. Accessed 15/04/2010.
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Article 27, Chapter 2, Constitution of South Africa. Available online at http://www.info.gov.za/documents/constitution/1996/96cons2.htm#27.
A new National Human Rights Action Plan for Australia: Comments on the Department of Attorney-General’s background paper
Children by Choice Association Inc
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07 3357 9933 | [email protected]
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regulations as trading organisations. This essentially means that counselling groups can advertise themselves as
a ‘pregnancy crisis helpline’ or something similar which infers a non-directive service, but which are anti-choice in
nature.
Children by Choice believes that if a group does not refer for abortion, this should be clearly stated in their
advertising. This would protect the rights of these groups to counsel as they choose, while at the same time
respecting the rights of individuals to choose what type of service they contact, and ensure informed decisionmaking.
We recommend that the Action Plan includes the right to access accurate health information,
including information about sexual and reproductive health, and provides an opportunity to
ensure that health information services accurately advertise the nature of their service.
Right to bodily and psychological integrity, including the right to make decisions
concerning reproduction
The right to bodily and psychological integrity is one of the most important in maximising a person’s health and
wellbeing. We recognise that control over reproduction is an issue on which people hold strong opinions, and that
those opinions can differ. However, on the issue of abortion, credible polling consistently shows more than 80% of
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Australians to support a woman’s right to choose. The right to safe and legal abortion has been recognised by
many bodies, including Amnesty International which has urged all countries to repeal laws which allow women to
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be persecuted or criminally charged for seeking abortion. The Parliamentary Assembly of the Council of Europe
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has also called on member states which have not already done so to decriminalise abortion.
However, as stated above, varying degrees of legality from state to state severely impact on Australian women’s
access to these services. For example, several recommendations have been made to the Queensland Government
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regarding the decriminalisation of abortion in this state, which have not been implemented. As a result, abortion
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remains a crime for which women can serve seven years in jail for accessing, and doctors 14 years for providing.
In contrast, the Australian Capital Territory has completely decriminalised pregnancy termination, while in Victoria
the only criminal penalties in relation to abortion apply only to unqualified persons carrying out the procedure.
In Australia it is estimated that more than 80,000 women a year will access health care services for the purpose of
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pregnancy termination. It is also estimated that almost one in three Australian women will experience abortion in
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their lifetime, with over 80% of abortion procedures carried out in private day facilities where the out of pocket fee
is significant. Such great variance in legality and accessibility to pregnancy termination procedures according to
location is clearly untenable and should be a key component of state and territory human rights compliance.
We recommend a Human Rights Act include the right to bodily and psychological integrity,
including the right to make decisions concerning reproduction.
We also believe that the right to found a family should be equally recognised by the Human Rights Act. Just as
women should have the choice not to parent, they should have the choice to parent, and the choice of the number,
7
See for example K Betts ‘Attitudes to Abortion: Australia and Queensland in the Twenty-First Century’ People and Place, Vol 17, No 3, 2009
pp25-39. Available online at http://search.informit.com.au/documentSummary;dn=240856454287648;res=E-LIBRARY. Accessed 28 April 2010.
See also Queensland voters’ views on abortion Report prepared by Auspoll, commissioned by Children by Choice, May 2009.
8
Amnesty International defends access to abortion for women at risk Amnesty International 2007. Available online at
http://www.amnesty.org/en/library/info/POL30/012/2007. Accessed 28 April 2010.
9
Committee on Equal Opportunities for Men and Women, Parliamentary Assembly of the Council of Europe, 18 March 2008. Available online at
http://assembly.coe.int/ASP/NewsManager/EMB_NewsManagerView.asp?ID=3643. Accessed 28 April 2010.
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Bodies including the Royal Australian College of Obstetricians and Gynaecologists, the Public Health Association of Australia, Sexual Health
and Family Planning Australia, the Doctors’ Reform Society, Family Planning Queensland and other health organisations have publicly stated
positions recommending the removal of abortion from Queensland’s Criminal Code.
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Queensland Government, Brisbane. Schedule 1 The Criminal Code, Part 4 Acts injurious to the public in general, Chapter 22 Offences
against morality. Reprinted 2010. Available online at www.legislation.qld.gov.au.
12
A Pratt, A Biggs, L Buckmaster How many abortions are there in Australia? A discussion of abortion statistics, their limitations, and options for
improved statistical collection Parliament of Australia Parliamentary Library, Social Policy Section. 14 February 2001, p2.
13
A Chan, J Scott, A-M Nguyen, L Sage Pregnancy Outcome in South Australia 2008. Pregnancy Outcome Unit, SA Health, Government of
South Australia, Adelaide 2009 p62.
A new National Human Rights Action Plan for Australia: Comments on the Department of Attorney-General’s background paper
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timing and spacing of their children. The capacity to make these decisions is of particular importance to women,
and has been adopted as a fundamental principle of development and population policy.
These choices should be equally available to all people, regardless of age, disability, sexuality or marital status.
We recommend the Human Rights Act include the right of individuals and couples, on an
equal basis of others, to found and maintain a family, and to freely choose the number, timing
and spacing of their children.
Right to education
One particular cross-portfolio area of concern to Children by Choice is the inadequate and inequitable provision of
sexuality education in Australian schools. Sexuality education is defined as the life-long process of acquiring
information and forming attitudes, beliefs and values about feelings, relationships, gender roles, body image,
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sexual development and reproductive health.
Sexuality education can facilitate the capacity of individuals to
make informed, safe and healthy decisions in accordance with personal beliefs and values as well as develop
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respect for the diversity that exists in our community.
Although sexuality education has been compulsory in Queensland schools for over 21 years, this policy is not
monitored and in reality, the level of education received by students depends largely on which school they attend.
The problem is best summarised as follows:
‘In Queensland, sexuality education is included in the Health and Physical Education (HPE) Syllabus
(Queensland School Curriculum Council, 1999). However, school administrators choose how and
when to implement it and are not required to report on what programs are used or to formally
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evaluate them. There is no state or national body that provides leadership or guidance…’
This situation is largely mirrored across Australia, with the quality of sexuality education varying from state to state,
and school to school. Providing adolescents with age-appropriate sexual and reproductive health information
empowers them to make responsible decisions regarding sexuality, thereby reducing the number of unintended
pregnancies and STI incidences.
Children by Choice recognises that work is currently underway to develop a sexuality education component to the
National Curriculum, included in the health and physical education component of the curriculum to be rolled out
from 2014. We would draw the attention of the Federal Government to world’s best practice in sexuality education,
which is best summarised by It’s All One Curriculum, an international resource developed by the International
Sexuality and HIV Curriculum Working Group. The guidelines for developing such curricula include several key
values, including being evidence-based, comprehensive, gender-sensitive, fostering civic engagement, and
based on core values and human rights, that is, it promotes principles of fairness, human dignity,
equal treatment, opportunities for participation, and human rights for all as the basis for achieving
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sexual and reproductive health and well-being.
We recommend the Action Plan provides an opportunity to engage with the development of
sexuality education through the national curriculum, to ensure a unified comprehensive
curriculum on sexuality, reproductive health, gender and human rights.
14
Sexuality Education and Information Council of the United States (SEICUS). Comprehensive Sexuality Education. Available online at
http://www.siecus.org/. Accessed 6th March 2009.
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S Blake Sex and relationships education: A step-by-step guide for teachers. 2002. London: David Fulton Publishers Ltd.
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E Barber Positioning sexuality education research on the Gold Coast of Queensland Master of Public Health Candidate, University of
Queensland. Paper presented at the Australian Association for Research in Education Conference 2004, Melbourne.
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N Haberland and D Rogow (eds) It’s All One Curriculum: Guidelines and Activities for a Unified Approach to Sexuality, Gender, HIV and
Human Rights Education Developed by the International Sexuality and HIV Curriculum Working Group, published by the Population Council,
New York, 2009. Available online at http://www.popcouncil.org/pdfs/2010PGY_ItsAllOneGuidelines_en.pdf.
A new National Human Rights Action Plan for Australia: Comments on the Department of Attorney-General’s background paper
Children by Choice Association Inc
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Goals of the Action Plan
This submission towards the development of a new National Human Rights Action Plan focuses on the major
challenges facing women in regards to the sexual and reproductive health and wellbeing. Our recommendations
are geared towards actions which envision a future where:
 Women are involved in and collaborate with government to control, develop and implement strategies to
improve their own health outcomes;
 Equity exists across state boundaries and compliance with the best international standards are a way of
life;
 Women are recognised as the experts in their own lives;
 Rural, regional and remote women can easily access comprehensive reproductive health services;
 Young people are well informed about their sexual and reproductive health choices;
 All women are safe;
 Policy and practice in women’s health are well supported by a wide range of evidence; and
 Women are well resourced financially to achieve good health outcomes.
The baseline study
Children by Choice welcomes the announcement that a baseline study will be carried out to assess the status of
human rights in Australia, as part of the Action Plan’s development. We note the Attorney-General’s Department
proposal that the baseline study include:
 Australia’s engagement with relevant human rights treaties and United Nations reporting mechanisms
 Australia’s domestic institutional and legislative architecture for human rights protection
 information on the status of priority vulnerable groups identified during the National Human Rights
Consultation
 information on key human rights issues raised by United Nations committees, and
 a snapshot of attitudes to, and knowledge of, human rights in Australia.
Children by Choice is aware of, and has taken part in, NGO consultations on Australia’s compliance to international
human rights treaties in recent years. The resulting reports prepared for human rights bodies provide a
comprehensive view of the current status of human rights in Australia, as well as detailed information on the
challenges faced in advancing human rights protection for vulnerable Australians.
Of particular relevance to this submission are the NGO Report on the Implementation of the Convention on the
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Elimination of All Forms of Discrimination Against Women (CEDAW) in Australia and its companion report,
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Aboriginal and Torres Strait Islander Women’s CEDAW NGO Report
– both contain wide-ranging
recommendations on better protection for women’s human rights, and were developed with a large number of
NGOs across Australia.
We recommend that NGO reports on Australia’s progress in implementing international
human rights treaties form part of the data used in the baseline study, to help accurately
assess the status of human rights and ensure the needs of diverse and vulnerable
Australians are represented.
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NGO Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in
Australia. Prepared by the YWCA Australia and Women’s Legal Services Australia, July 2009, with the endorsement of 135 non-profit
organisations across the country. Full report available online at http://www2.ohchr.org/english/bodies/cedaw/docs/ngos/YWCA_Australia46.pdf.
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Australian Aboriginal and Torres Strait Islander Women's Parallel NGO Report on the implementation of the Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW). Prepared by Koorie Women Mean Business and Indigenous Law Centre, University of
NSW with YWCA Australia, August 2009.
A new National Human Rights Action Plan for Australia: Comments on the Department of Attorney-General’s background paper
Children by Choice Association Inc
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