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Statements Special Procedures
27 February 2017
Canberra, 27 February 2017: The UN Special Rapporteur on violence against women, its causes and consequences, issued the following statement today following her visit to Australia from 13 to 27 February 2017.
“Ladies and Gentlemen,
First of all, let me acknowledge the Traditional Owners of the land we are gathered upon today and pay my respects to their Elders past, present and future.
I would like to warmly thank the Government of Australia for inviting me to conduct this official visit and for its excellent cooperation before and during my stay. This is the first visit to the country by the mandate of the Special Rapporteur on violence against women, its causes and consequences. During the last 15 days, I have had the opportunity to gather first-hand information on the situation of violence against women through visiting five out of the six state level governments (New South Wales, Victoria, Queensland, South Australia and Tasmania) as well as the two self-governing territory government – the Australian Capital Territory and the Northern Territory, in addition to the meetings I had at the federal level here in Canberra. I have visited the women’s correctional facility in Brisbane and shelters in different locations. I would also like to extend my gratitude for the cooperation from these States’ and territories’ governments that I visited (including the opportunity to meet with Michaelia Cash, Commonwealth Minister for Women, Jacqui Petrusma, Tasmanian Minister for Women, Shannon Fentiman, Queensland Minister for Women, Mark Ryan, Queensland Minister for Corrective Services, Marc Furner, Queensland Minister for Aboriginal and Torres Strait Islander Partnerships, Fiona Richardson, Victorian Minister for Women and for the Prevention of Family Violence) and to the broad range of civil society representatives and services providers, the Australian National Human Rights Commission and various rights commissioners at the national, state and territorial levels, and academics that I met in Canberra, Sydney, Hobart, Brisbane, Cherbourg, Alice Springs, Adelaide and Melbourne.
I would like to thank in particular the women and girls who shared with me their personal stories placing their trust and some of their hopes in my hands. Despite unique contextual complexities related to federal and state and territorial responsibilities in this area, I humbly believe that I have been able to get a good understanding of the reality of women’s and girls’ lives and some of the systematic problems they face when it comes to their right to live a life free from violence and gender inequality.
I will confine myself today to present only some preliminary findings which will be elaborated further in my final report that will contain a set of action-oriented recommendations which I will present at the UN Human Rights Council.
As recognized by the Council of Australian Governments (COAG), violence against women is disturbingly common and continues to have a significant negative impact on women, children and the wider community in Australia as in any other country in the world. The scourge of violence against women takes on average the lives of 1 or 2 women every week throughout the country; one in three Australian women has experienced physical violence, and almost one in five Australian women have experienced sexual violence. One in four Australian women has experienced physical or sexual violence at the hands of a current or former male partner. However, the true scale of the problem is likely much greater as it is estimated that on many instances, violence go unreported.
There is no doubt that violence against women has gained increased visibility being publicly recognized as a pandemic and having translated into a strong political will expressed at the highest level of the leadership of the country and transcending political divides. All the interlocutors I met at Federal, State and Territory level have all stated that addressing VAW was a high priority. I was in particular deeply impressed by the personal commitments and dedication of those who have experienced family or domestic violence and who had the strengths to find the silver lining in their tragedy to become tireless advocates on actions needed to address violence against women and on the importance of integrating victims’ voices into all laws, policies and programmes. I am thinking about Rosie Batty and many others, some I had the privilege to meet with during my visit.
Throughout my visit in different jurisdictions, i have had the opportunity to look at a wide ranges of key initiatives and legislative and policy reforms which could become good practices and be replicated in other jurisdictions. These include, for example, initiatives related to prevention like “OUR WATCH” to drive nation-wide change in the culture, behaviours and attitudes that underpin and create violence against women and children and new ways of integrating service delivery, sharing of information between governments and community groups about violent offenders, inclusion of victim voices , and homicide review death panels.
Let me now turn to some concerns.
Human rights obligations to prevent violence against women / gap in incorporation and implementation of the international human rights obligation under CEDAW / lack of specific federal law or model law on violence against women and domestic violence
In 1983, Australia was laudably one of the first countries to ratify the Convention on the Elimination of all forms of discrimination against women (CEDAW). It also provided an eminent expert to the CEDAW Committee (1985-1992): Ms. Elizabeth Evatt, who was also its Chairperson (1989-1990).
However today, Australia still maintains two reservations to the CEDAW in relation to paid parental leave and the employment of women in combat or combat-related positions in the defense force. I was informed that they are both in the process of being repealed.
Let me stress the importance of a human rights-based approach to State’s responsibility to prevent and combat violence against women. Gender based violence against women constitutes discrimination and a human rights violation under CEDAW while States have a human rights obligation to prevent violence against women committed by the state agents and due diligence obligation to prevent such violence by private persons, provide service for victims and prosecute perpetrators.
Australia remains a democratic nation without comprehensive constitutional or legislative protection of basic human rights at a federal level. This contribute to the fact that despite commitments made at the international level, there is lack of full incorporation of and references to the human rights framework in general and the human rights narrative is not being used at the national level, including with respect to women’s rights.
The rights set out in the international human rights conventions like CEDAW are not directly applicable and are not fully incorporated into the national legal system and the consequences are that those rights are not legally enforceable or justiciable; and there is no domestic law requirement that the Australian Government act compatibly with, or even give proper consideration to, human rights.
The Australian Parliament has passed some legislation that protect human rights but overall, women's human rights in Australia are protected in an incomplete, patchwork way in different States and Territories what result in different level of harmonisation of such laws with CEDAW and different level of protection of a woman's right to life free from violence.
The overarching national legislation governing women’s rights in Australia is the Sex Discrimination Act which was amended in 2011 to encompass different areas towards the achievement of gender equality.
The Council of Australian Governments (COAG) and its Advisory Panel on Reducing Violence against women and their children have, in particular in the absence of a national legislation on violence against women, play a pivotal role in ensuring consistency across jurisdictions and information sharing
Taking into consideration the lack of direct applicability and the lack of full incorporation of CEDAW, the lack of a national legal framework on violence against women and complex federal system in which domestic violence laws and intervention orders fall under the state’s/territory’s authority while family law courts are federal, there is a need to improve cross-jurisdictional coherence. There is no single nationally agreed definition of family and domestic violence (different definitions coexist in different jurisdictions). I have been made aware of important initiatives going in the direction of harmonisation, such as the draft legislation on protection orders and its accompanying new scheme on recognizing domestic violence orders across states, a national approach to perpetrator interventions ensuring sharing of information about offences, and initiatives to tackle issues of online violence to mention a few. This confirm a need for harmonization of national framework on VAW with international commitments. In that respect I would like to make the following recommendations :
National plan of action on VAW
I welcome the National Plan to Reduce Violence against Women and their Children 2010-2022 and its third plan within that plan (2016-2019) with: goal of achieving a significant and sustained reduction of violence against women and their children.
However this plan focuses on specific areas and lacks a holistic approach to prevent violence against women, and to ensure the provision of services and the punishment of perpetrators in a coordinated manner. TheNational Plan insufficiently addresses the need for adequate crisis services, shelters or refuges for women and to provide them with opportunities for empowerment. Specific National Action Plan on violence against women and gender equality should be elaborated to address the situation of indigenous women.
Shelters and housing
Domestic/family violence is one of the leading causes of homelessness in Australia. It is essential that women escaping violence can access affordable and safe housing and that the barriers towards doing this are removed. From all the services providers and other interlocutors I met, all pointed to me the dire shortage of refuges for women and children escaping violence and for public housing in general. It is extremely worrying that the situation of some women, who are already confronted, in particular when they live in remote areas and in indigenous communities, with the dilemma of being homeless with no safe refuge, possibly with children, or staying with their abusers, might even worsen.
Women's shelters and housing program should be adequately funded. Sufficient number of shelters is specially needed for Aboriginal communities that would be run by them and used as a hub for other services needed for recovery and empowerment.
The current funding of some legal community services, including the family violence legal services providing frontline support services to domestic violence victims, has been recognized by the independent Australian research and advisory body (the Productivity Commission) as insufficient to ensure that women fleeing domestic/family violence get the support they need. While I note that there is a plan to cut $35 million of federal funding to Community Legal Centre over three years, I also note other additional funding which has been promised for Community Legal Centres, Legal Aid Commissions and other services that support victims of family and domestic violence. As recognition and reporting of domestic and family violence increases, the demand for integral legal help in relation to protection orders, family law, child protection and criminal matters, especially breaches of protection orders, is likely increase. People fleeing domestic and family violence also regularly seek legal services for housing, credit and debt challenges and access to social security. I therefore urge the Government to provide the necessary funding to match the current and future needs of women who are seeking advice and assistance to protect their lives in line with its human rights obligations. Particular attention should be given to appropriate funding for the Aboriginal and Torres Strait Islander Legal Services which has experience decreases in funding.
In addition short-term project contracts for NGOs that provide different services limit the possibility for mid or long term planning and sustainability of their services and threaten the ability of their staff for long term assignment.
The situation of women who encounter multiple and intersecting forms of discrimination and violence
During my visit, I have paid special attention to the situation of women who encounter multiple and intersecting forms of discrimination and violence and have strived to unpack the compounding effects these different forms of vulnerability have upon one and another and play out in the violence they experience.
Violence against Aboriginal and Torres Strait Islander Women and girls
It has been recognized by the Government that the prevalence of violence against Aboriginal and Torres Strait Islander women emanates from colonisation, and the dispossession and discrimination that First Nations peoples have been subjected to for more than two centuries and resulted in their exclusion and disadvantaged position. Strategies such as like the “Close the Gap” one aimed at reducing disadvantage among indigenous peoples, are not yet significantly closing the gap with respect to targets envisaged and by that, certainly not the gap related to gender equality and violence against women within indigenous communities.
Aboriginal and Torres Strait Islander women face institutional, systemic, multiple, intersecting forms of discrimination. In addition to sexism and racism, many women also face class-based discrimination due to the low socioeconomic status, as well as social exclusion arising from their regional or remote geographical location. These forms of discrimination and exclusion culminate to create extremely difficult social conditions and manifest themselves in an alarmingly high prevalence of violence against Aboriginal and Torres Strait Islander women who continue to experience higher rates of domestic/family violence and more severe forms of such violence as compared to other women. For example, they are 32 times more likely to be hospitalised as a result of domestic/family violence and up to 3.7 times more likely than other women to be victims of sexual violence.
I was informed that some of the policies that I thought were belonging to the past, such as the removal of children from their families still continue, Aboriginal children being around 7 times more likely than non-indigenous children to be in contact with the child protection system or to be subject to substantiated abuse or neglect; 9 times more likely to be on a care and protection order; and around 10 times more likely to be in out-of-home care. This maintains the cycle of violence, with Aboriginal women being made unable to break it and change it.
The third action plan on Family violence has made Aboriginal and Torres Strait Islander women and their children one of its six national priorities. But this is not sufficient. Due to the current situation, I would like to stress that in addition to inclusion and consultation with Aboriginal and Torres Strait Islander peoples and communities, a specific National Action Plan on violence against Aboriginal and Torres Strait Islander and gender equality should be developed with appropriate temporary special measures that would accelerate advancement of women. This would be in line with the commitments taken under Article 22 and 23 of the UN Declaration on the Rights of indigenous peoples which states that Aboriginal and Torres Strait Islander women should have ownership of, and administer, initiatives to improve their law and justice outcomes as well as advance their human rights and temporary special measures under article 4.1 of CEDAW.
Universal access to community-based infrastructure should also be improved. I was informed for example that children school attendance was difficult in remote areas and that in a location I visited, school buses had been discontinued and that basic cards are not covering expenses related to escape from violence. In short, I would like to recommend that policies be made with communities — rather than to communities; budget for the indigenous affairs and policies based on human rights implementation should be restored and increased; support should be provided for justice reinvestment — where money is redirected to address underlying causes of crime; and temporary special measures be introduced for employment of Aboriginal and Torres Strait Islander in the States’ and Territories’ governments at all levels , especially in police force policing Aboriginal Communities and prisons.
Institutionalized violence against indigenous and other women in prison and overrepresentation of indigenous women in prison
I visited a women correctional centre in Brisbane and had exchanges with a number of women and girls who were either incarcerated, had experienced incarceration or had family members incarcerated. All their stories that I listened to had a striking common characteristic: that these women had been victims themselves of multiple and intersecting violence, sexual assault, trauma and abuse. I would like to share my concern about over-incarceration, prison-overcrowding, strip searching, solitary confinement, lack of alternatives to custodial sentences, in particular for women with dependent children, inappropriate access to health care (in particular mental health care) and inadequate re-entry programme to prevent reoffending. Most of the women I visited were incarcerated for minor, non violent offenses, such as stealing, fraud, and breaches of domestic violence orders. In that regard, I note with concern that on many occasions, reciprocal domestic violence orders are issued and increasingly used as one of the consequence of the de-gendered application of domestic violence legislation in general.
I am also concerned that women and girls on remand or pretrial detention are held together with convicted women, which raises serious concerns under article 10 (2) of the International Covenant on Civil and Political Rights. In that regard, I welcome the recent announcement made that Australia would ratifying, after having signed it in 2009, the Optional Protocol to the UN Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT). This instrument foresees national and international oversight for prisons and other facilities where people are deprived of liberty and will undoubtedly bring improvements to conditions of detentions.
I was informed that Aboriginal and Torres Strait Islander women and girls are the fastest growing prison population group across Australia. I would like to recommend a thorough examination and revision of laws and legal framework that jointly with social and economic disadvantages contribute to the significant overrepresentation of First Nations people in prison. For example, I would urge the Government to review a policy of incarceration for unpaid fines, which has a disproportionate effect on the rates of incarceration of Aboriginal women because of the economic and social disadvantage that they face.
The Royal Commission on death on custody already proposed back in 1991 that governments which have not already done so should legislate to enforce the principle that imprisonment should be the last resort (Recommendation No. 92).
I welcome the recent establishment of an inquiry to be conducted by the Australian Law Reform commission into the incarceration rate of Aboriginal and Torres Strait Islander peoples, and especially women, which will examine the laws, such as the ones regulating unpaid fines, driving offenses and frameworks and institutions and broader contextual factors that lead to the disturbing over‑representation of Aboriginal and Torres Strait Islander peoples in the Australian prison system.
In the context of women’ incarceration, I would like to also underline the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) which provides guidance for specific characteristics and needs for women in prison, in particular Rule 26, which recognises the significant impact that loss of contact with children has on mothers (and the best interests of the child).
Violence against women and girls with disabilities
I am concerned at reports of the high incidence of violence against, and sexual abuse of, women and girls with disabilities, in particular in institutional settings. Despite such reported high incidence, the issue is not addressed adequately in legislation or policy framework on violence against women or on disability rights. I would also like to echo the concerns of treaty bodies, including CEDAW in relation to the continuing practice of involuntary or coerced sterilization of persons with disabilities which were confirmed by the Senate inquiry into this issue in July 2013 and support recommendations made by these bodies.
Violence against women’s asylum seekers and refugees and migrant women
I would like first to acknowledge Australia’s longstanding refugee settlement programme, which include a focus on women-at-risk and which is in the process of being increased. As has been raised multiple times by UN human rights bodies, the overall policies and laws relating to asylum-seekers arriving by sea raises concerns under both international refugee and human rights law. As Special Rapporteur on violence against women, I am particularly concerned at continued and serious reports of violence against women and children, including sexual violence within this context. While cognizant of both the Government and Senate reports about the conditions in the Regional Processing Centre on Nauru (RPC), the latter concluding at the inadequacy, inappropriateness and unsafety of the asylum seekers detained there and efforts made to improve the situation, concerns remain, including in relation to the insufficient access to justice and lack of a children protection framework in Nauru. I am also concerned at reports of asylum-seekers and refugees women and girls transferred temporarily to Australia on medical grounds, including women and girls who have been raped, who have ongoing health concerns, are in onshore detention and face return to the RPC in Nauru.
There is no adequate investigation of complaints of violence and abuse and the Special Rapporteur on the human rights of migrants, during his official visit last November, said that accounts of rape and sexual abuse of female asylum seekers and refugees by security guards, service providers, refugees and asylum seekers or by the local community, without providing a proper and independent investigation mechanism, was making life of women in the RPCs unbearable.
All women who are in Nauru should be protected in line with CEDAW and General Recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women.
Female migrants and refugees also are at risk violence in Australia, in the community and in their homes. Of particular concern is the ability of migrants and refugees who are experiencing violence to access available services and assistance. The Australia’s National Research Organisation for Women’s Safety (ANROWS) ASPIRE Project found that social isolation experienced by many migrant and refugee women can be exploited by perpetrators of family violence to prevent them from getting help. Conditions on temporary visas can have serious impact for the safety of immigrant women experiencing family violence. Temporary visas holders face barriers to accessing because these visas have various conditions that can restrict access to income support, public housing, healthcare, and child services while these services are essential in situation where the migrant women fear for their safety. While it is commendable that women on a partner visa where the perpetrator is their sponsor can apply for special exception allowing them to continue with their application for permanent residency. However, it needs to be recognized within immigration policy that family violence can be inflicted by any family member and not only the sponsors and that consequently, the family violence exception should be expanded to persons on non-partner visas and any victim of family violence regardless of visa status should be able to access the full range of social and health services.
Data collection and coronary death review / femicide watch
Australia in general provides many data on different forms of violence against women what is commendable but still on many levels there are no national and States’ and Territories’ comparable data on different forms of violence against women, including on gender related killings of women. Some jurisdictions have Homicides Death Review Panels but not all.
I find homicide review panels as a very positive model partially in line with my initiative to call all States to establish a femicide watch and to collect and publish such data and analyse each case in order to determine any shortcomings of the national preventive system. Work done by some NGOs on quantifying gender related killings of women and by the Committee on Aboriginal death in custody (DICWC) are also examples of good practices.
I encourage the Government to further improve collection of comparable data on gender-related killings of women and to expand homicide/femicide review panels to all States and territories, to consider expansion of their work as femicide panels or to establish or designate other bodies to do so like independent institutions such as the Human Rights Commission with participation of NGOs representatives, as recommended in my thematic report on this topic (A/71/378).
I was informed that the Australian Human Rights Commission has been tasked to engage with governments and coroners across Australia to identify mechanisms to collect national data and ensure that death review processes exist in all states and territories.
I thank you for your attention.