3 Despite a relatively high birth registration rate nationally (approximately 96%), Australia’s Aboriginal and Torres Strait Islander (ATSI) population continue to experience a vastly disproportionate rate of unregistered births.8 For example, statistics indicate that as many as one in six ATSI children are born without a birth certificate in the state of Queensland, rendering them ‘legally invisible.’9 While the HCA recently held that an ATSI person who is not an Australian citizen cannot be considered an ‘alien’ for the purposes of the Migration Act 1958 (Cth),10 access to birth registration for the ASTI community remains an issue of concern. 4 Although the scope of this submission does not cover issues pertaining to birth registration in ASTI communities, we wish to acknowledge the significance of this issue in Australia, and consequentially the importance of Government bodies working closely with ATSI communities and ATSI lead organisations in addressing this important issue. Australia’s Universal Periodic Review under the First and Second Cycle The First Cycle – 2010 – 11 5 Australia’s 1st cycle review took place in January 2011 under the 10th session of the UPR Working Group. 145 recommendations were made, of which 137 were accepted wholly or partly.11 6 Whilst there were no recommendations specifically relating to statelessness, concerns regarding Australia’s treatment of stateless persons were raised as follows: 6.1 6.2 In the compilation of United Nations (UN) Information Report, the Office of the High Commissioner for Human Rights (OHCHR) highlighted that the Committee on the Elimination of Racial Discrimination (CERD) ‘regretted that the Australian High Court has found that it is lawful for a stateless person to be detained indefinitely’.12 Ghana referred to the concerns expressed regarding Australia’s asylum-seeker and refugee policy, specifically drawing attention to the possibility of ‘indefinite detention of stateless persons’.13 The Second Cycle - 2015 7 Australia’s 2nd cycle review took place in November 2015 under the 23rd session of the UPR Working Group. 290 recommendations were made; Australia accepted 150 and noted 140.14 8 Paula Gerber and Melissa Castan, Castan Centre for Human Rights Law, Submission to The Office of the United Nations High Commissioner for Human Rights, Examples of best practices to ensure the registration of children, namely those in situation of risk and marginalized: Human Rights Council resolution 34/15 (31 October 2017) 2 – 5 <https://www.ohchr.org/Documents/Issues/Children/BirthRegistrationMarginalized/CastanCentreSubmission.pdf>. 9 Phil Clarke, Queensland Ombudsman, The Indigenous Birth Registration Report: An investigation into the under-registration of Indigenous births in Queensland (Report, June 2018) 7 <https://www.ombudsman.qld.gov.au/improve-public-administration/reports-and-casestudies/investigative-reports/the-indigenous-birth-registration-report>. 10 Love v Commonwealth of Australia, Thoms v Commonwealth of Australia [2020] HCA 3. 11 Human Rights Council, Report of the Human Rights Council on its Seventeenth Session, UN Doc A/HRC/17/2 (24 May 2012) paras 456-457 <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G12/136/30/PDF/G1213630.pdf?OpenElement>. 12 Human Rights Council, Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15(b) of the annex to Human Rights Council resolution 5/1: Australia, UN Doc A/HRC/WG.6/10/AUS/2 (15 November 2010) para 49 <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G10/175/67/PDF/G1017567.pdf?OpenElement>. 13 Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia, UN Doc A/HRC/17/10 (24 March 2011) para 78 <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G11/122/90/PDF/G1112290.pdf?OpenElement>. 14 Report of the Human Rights Council on its thirty-first session, UN Doc A/HRC/DEC/31/108 (6 April 2016). 2