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UNSW Law Society Court of Conscience |
MAKING RIGHTS A REALITY – THE NEED
FOR A HUMAN RIGHTS ACT FOR AUSTRALIA
Rosalind Croucher AM FAAL*[1]
I The International Bill Of Rights And
The Absence In Domestic Law
On 10 December 1948, the United Nations (‘UN’) adopted the Universal Declaration of Human Rights (‘UDHR’),[2] to provide a roadmap to guarantee the rights of every individual everywhere.[3] The declaration was drafted in response to the horrors inflicted on countless people and communities during the terrible conflict of World War II, including Jewish people, ethnic minorities, people with a disability and people of diverse sexualities and genders. It was born of an international consensus that all nations needed to work together to create a better, more inclusive and respectful world for all human beings. An Australian, Dr HV Evatt, or ‘Doc Evatt’ as he was known, was in the Chair of the General Assembly at that landmark moment. On 10 December 2023, we marked its 75th anniversary.
What was distinctive about this Declaration was its move away from an international law that was about the rights of states among themselves, to an international law of human rights, which conferred rights on individual people.
That moment, in 1948, was celebrated and marked across Australia. The Hon Michael Kirby AC CMG, in delivering the opening keynote address at the Australian Human Rights Commission’s ‘Free + Equal Conference’ on 7 June 2024, recalled how, as a 10-year-old primary schoolboy in 1949, his teacher, Mr Gorringe, gave him a copy – as was every schoolchild in Australia.
The UDHR provided the foundation stone for a pair of binding conventions in the 1960s – the International Covenant on Civil and Political Rights[4] and the International Covenant on Economic, Social and Cultural Rights[5] – and the combination of rights guaranteed in these two covenants ‘represent the most authoritative universal minimum standard of present international human rights law’.[6] Together with the UDHR, these three instruments are known as the ‘International Bill of Rights’.
Australia was a founding signatory to each of these instruments and, as a nation, we stepped forward in embracing the commitments of these great documents. Australia has signed and ratified each of the key international treaties since then – and it has not been a party-political exercise. Both sides in our system of Westminster government – and in equal measure – have signed and ratified them, undertaking obligations to the world.[7]
However, in practice, little has been done to enact the rights and freedoms protected by these instruments into Australian law, in our own Human Rights Act, despite the aspirations perhaps encouraged in the schoolchildren of Michael Kirby’s young years – and repeated attempts to do so.[8] This means that the rights and freedoms enshrined in these international human rights instruments are not directly enforceable in Australia at the federal level. The promises of our Commonwealth Government to the world, while genuine, are not backed up fully in practice, and the willingness to do so has also fluctuated greatly over the intervening decades.
While we do have strong rhetoric of the importance of rights and freedoms in Australia, the domestic legislative protection of them is strikingly limited, with specific human rights instruments enacted only in the Australian Capital Territory (‘ACT’), Victoria and Queensland.[9] From the perspective of the jurisdiction of the Australian Human Rights Commission (‘Commission’), the absence of implementation of the treaty commitments is also still unfinished legal architecture. When put on a permanent foundation in 1986, the Commission was designed in tandem with an accompanying Australian Bill of Rights Act.[10] The Bill was passed in the House of Representatives, but did not survive the Senate. More recently, the idea was the principal recommendation of the National Human Rights Consultation led by Fr Frank Brennan SJ, over a decade ago, with its report in 2009.[11] It also did not progress.
The principal purpose of this article is to highlight the five-year program of work of the Australian Human Rights Commission, which has been central to re-advocating the case for a national Human Rights Act – as a key piece of a revitalised human rights framework in Australia. Part II outlines the Commission’s ‘Free and Equal’ report. Parts III and IV focus on why we need a federal Human Rights Act and the differences such an Act would make. Part V of the article considers the report of the Parliamentary Joint Committee on Human Rights, the majority of which strongly supported the Australian Human Rights Commission’s recommendations, particularly in relation to a Human Rights Act. The opportunity is also taken to rebut arguments made in a dissenting report The final section of the article, Part VI, offers some final reflections.
II Free And Equal – Revitalising Australia’s
Human Rights Framework
Its title drawn directly from the first sentence of the first article of the UDHR, ‘All human beings are born free and equal in dignity and rights’ (emphasis added), the Free and Equal project produced two major Position Papers – on discrimination law reform (December 2021),[12] and a model Human Rights Act for Australia (March 2023)[13] – and its final report in December 2023, with the aim of revitalising our human rights framework.[14] The completion of the work, and the challenges to come, were the focus of the ‘Free + Equal conference’, held in June 2024.[15]
The Commission’s model Human Rights Act is based on conceptual ‘bookends’ of responsibility and accountability. It is strongly democratic and is anchored in the strength and supremacy of parliament.
Responsibility of public authorities to consider and act compatibly with human rights in policies, legislation and practice – through a positive duty as exists in the state and territory Human Rights Acts and added duties to ensure the effective participation of indigenous peoples, persons with disability and children, and to ensure equal access to justice. The model provides enhanced parliamentary scrutiny and a comprehensive implementation of human rights, across the ICCPR and ICESCR.
Accountability through actionable breaches for individuals, interpretive provisions that align the understanding of human rights to international jurisprudence, a national human rights indicator index to measure progress on human rights over time, and an annual statement to parliament in relation to human rights priorities.
Together, responsibility and accountability through a Human Rights Act and Human Rights Framework support a cultural shift towards ‘rights-mindedness’ becoming part of the national psyche, not just an afterthought.
The Commission’s National Human Rights Framework is built on the following five pillars:
1. Comprehensive and effective protection of human rights in legislation through the introduction of a national Human Rights Act.
2. Federal discrimination laws to be modernised to ensure their effectiveness and to shift the focus from a reactive model that responds to discriminatory treatment to a proactive model that seeks to prevent discriminatory treatment in the first place.
3. The role of Parliament in protecting human rights is strengthened, through reform to the processes for parliamentary scrutiny and the introduction of new oversight mechanisms for Australia’s human rights obligations.
4. A national human rights indicator index is introduced to independently measure progress on human rights over time.
5. An annual statement to Parliament on human rights priorities is made by the Government.[16]
The Framework will be supported by a national human rights education program, an effective and sustainable national human rights institution and vibrant and robust civil society organisations.[17] Each of these elements has a role to play in an integrated human rights framework.
III Why Do We Need A Human Rights Act?
There is currently an implementation gap between the human rights standards that Australia has agreed to internationally in promises to the world, and the actual protections in our laws, policies and processes of government.
The Australian Constitution protects some rights through limitations on the power to pass legislation but does not confer rights on individuals – unlike the United States Constitution – and mechanisms to raise complaints of breaches of human rights, apart from the four Discrimination Acts,[18] are extremely limited. The Commission has had a complaints jurisdiction, anchored in the international treaties, since its outset, but without any redress to remedial pathways its effectiveness is very limited, the only conclusion being a report to the Attorney-General.[19] In 2017, even the obligation of the Attorney-General to table these reports was removed.[20] And here we are, decades later, with report number 160-plus, still making recommendations which have no possibility of effective remedy.[21]
The existing mechanisms are simply insufficient and do not provide the human rights protections that all people in Australia are entitled to – and expect.
Our experience with Royal Commissions into Robodebt, and the abuses experienced by persons with disability and in aged care,[22] have exposed egregious human rights breaches, and shown how our existing systems are just not adequate.
A primary benefit of a National Human Rights Framework is that it will provide the foundation to foster a culture of respect for human rights throughout the whole of government and across the country, and enhance ‘rights-mindedness’ in policy, law and decision making.
Parliamentarians and public officials should be required to consider the human rights impact of their actions. And they should be required to favour options that positively protect human rights and justify that their chosen actions cause the least possible harm to people’s rights.
To achieve this, we need a Human Rights Act and a revitalised human rights framework.
IV How Would A Human Rights Act Make A Difference?
A Responsibility
‘Culture’ would be anchored in a framework of human rights. The public service would have a positive duty to act compatibly with human rights and consider human rights when making decisions. A human rights-based approach would improve trust in government decision making, due to guaranteed rights protections, and the increased transparency and accountability it would bring. Public trust enhances respect for the law, provides greater legitimacy for authorities and institutions, and deepens social cohesion.[23]
By considering the human rights impacts of a proposed law or policy upfront, there is also a reduced likelihood that decisions will breach human rights and therefore the risk and costs of court action are avoided.
Dealing with human rights breaches after the fact can give rise to vast consequences – including unexpected costs from failing to consider human rights early.[24] Robodebt led to a resulting class action and prompted its own Royal Commission. Dealing with human rights issues early has obvious economic benefits.
B Accountability
1 Through Parliamentary Scrutiny
The Commission’s Position Paper on a national Human Rights Act includes a review of the effectiveness of the parliamentary scrutiny of human rights at the federal level, with a particular emphasis on the role of the Parliamentary Joint Committee on Human Rights (‘PJCHR’).
The Commission argues that the work of the PJCHR is inherently constrained by the limited legal protection of human rights in Australian law. The single biggest change that can improve the effectiveness of the PJCHR is for its work to occur in conjunction with a Human Rights Act. This would provide:
● stronger accountability measures for public servants to fully consider human rights (in accordance with the proposed positive duty);
● ensure that laws, policies and programs are developed with the full engagement of affected communities (in accordance with the proposed participation duty and the role of the PJCHR to assess the adequacy of this participation);
● ensure there is domestic guidance on human rights standards and obligations over time that can assist in the quality of consideration of human rights issues; and
● increase the weight that public servants and parliamentarians attach to human rights considerations, due to the possibility of people whose rights are restricted having a cause of action to have those impacts addressed.
These proposed reforms to the parliamentary review of human rights are complementary to the need for a Human Rights Act – not a substitute for one.
2 Through Interpretation of Legislation
With respect to judicial consideration of legislation generally, the Commission recommends an interpretive clause:
All primary and subordinate Commonwealth legislation to be interpreted, so far as is reasonably possible, in a manner that is consistent with human rights.[25]
Parliament could still reach a conclusion, and express its intention in legislation clearly, that is at odds with human rights commitments, but the hurdles for being able to do this, and the constraints around it, would be far stronger. The accountability in human rights terms would be far higher, and the leverage for people seeking to challenge decisions much more potent.
3 Through Complaints Pathways With the Possibility of Remedies
This is a singular point of difference with other models. The Commission’s proposed rights are all amenable to enforcement by complaints bodies and courts. Unlawful actions and decisions in relation to all rights in the Human Rights Act should give rise to a standalone cause of action. This would provide clarity and consistency and enable the enforcement of rights in accordance with Australia’s international obligations.
The Commission advocates a Human Rights Act complaints system that mirrors the unlawful discrimination jurisdiction. This would mean that there would be a requirement for complainants first to bring a complaint to the Commission, and if conciliation fails, or is inappropriate, the complaint would be terminated by the Commission and the complainant could then move onto the courts (or tribunals) for adjudication. The same processes that currently exist for unlawful discrimination would apply in the human rights context (including all the termination grounds, and representative complaints processes).
The Commission’s existing human rights complaints jurisdiction would be replaced by this new approach.[26] It would be an evolution, not a revolution, of the Commission’s long-standing jurisdiction.
An accessible complaints process would reduce the impact of a Human Rights Act on the judicial system. Litigation need not be the only port of call for people who wish to make a complaint alleging a breach of human rights. Rather, it is a necessary last resort when other avenues have failed. It provides the leverage, the tools, for accountability and improved decision making. But litigation is not the point. It is the positive duty of public authorities to get it right in the first place – by developing policies and framing decisions through the lens of human rights.
V The Parliamentary Joint Committee
On Human Rights Report
A Majority Report
Just after the Commission released the second Position Paper, the Attorney-General requested the PJCHR to inquire into a Human Rights Framework, expressly referring to the Commission’s work. On 30 May the PJCHR released its report,[27] providing a strong endorsement of the Commission’s recommendations for a revitalised human rights framework, and a Human Rights Act, based on the Commission’s model.
The report observed a ‘clear need’ for a comprehensive and enforceable rights-based framework[28] – to ensure a ‘fair go’ for all.[29] It agreed that existing protections were ‘piecemeal’.[30]
Submissions received ‘overwhelmingly’ favoured (87.2%) an Australian Human Rights Act[31] and the PJCHR was reassured by the experiences in the three jurisdictions with such instruments: the ACT, Victoria and Queensland. It said these showed human rights legislation ‘could help embed a rights-respecting culture’[32] and ‘has not led to overwhelming litigation’.[33]
The report made 17 recommendations,[34] including the enactment of an Australian Human Rights Act that broadly reflects the Commission’s model. The Act would protect rights based on those under international treaties to which Australia has agreed to be bound. This includes the right to freedom of religion and a prohibition against advocacy of national, racial or religious hatred.
The Act would include basic aspects of economic, social and cultural rights, such as the rights to education, health and social security. The framing of cultural rights, and a right to a healthy environment, would be informed by consulting with Aboriginal and Torres Strait Islander peoples.
This is a clear reflection of the Commission’s recommendations in relation to ICESCR. Many of the most pressing human rights concerns facing people in Australia relate to economic, social and cultural rights (under ICESCR). These include access to adequate health care, education and housing; and the restriction of these rights is often linked to civil and political rights – like the right to non-discrimination.
ICESCR rights are also closely linked with the realisation of self-determination for Indigenous peoples and are essential to meeting ‘close the gap’ targets, which address socio-economic indicators of disadvantage.
The Australian public strongly values economic and social rights, indicating that the lack of implementation of ICESCR does not reflect the democratic will of the people. This was a clear outcome of the 2009 National Human Rights Consultation. Priorities identified included —
The right to adequate housing, the right to the highest attainable standard of physical and mental health, and the right to education are particular priorities for the community.[35]
The Act would impose a positive duty on public authorities to comply with and properly consider human rights in their decision-making and actions. They could still impose limits on human rights where parliament permits or where the limits are reasonable and justifiable.
The positive duty would be directly enforceable by a federal court, where conciliation is not appropriate. Courts would also need to interpret statutes so as not to breach human rights, so far as is reasonably possible.
The majority report supported the Commission’s recommendations for increased parliamentary scrutiny through the PJCHR itself.[36] It also recommended extensive human rights education in schools and the broader community, in part to drive the cultural changes needed to fully realise rights.
By contrast, a minority of the committee, the Coalition members, recommended an Australian Human Rights Act not be introduced. The report of the majority of the Committee expressly traversed the arguments against a Human Rights Act — and answered them comprehensively.[37]
There will be much analysis of the dissenting report. If an Exposure Draft Bill were to follow, which would be the ideal next step in law reform, that is when the model put forward can be subject to further full public consultation and review, which would be a welcome next step.[38]
For now, I would like to unpack, or rather unravel, the various threads of objection, using headings to reflect the gist of those objections.
1 ‘We don’t need one’
The dissenting report opposed the introduction of a Human Rights Act on the basis that it would ‘weaken our parliamentary democracy and politicise our judiciary’.[39] It said that rights were composed ‘in a politicised way’ and that parliament was ‘surrendering its responsibility to defend human rights, by throwing open the interpretation of an Act which contains excessive uncertainty to final determination by an unelected and unaccountable judiciary’.[40]
Such points are more of the old tropes of objection with respect to the idea of a Human Rights Act.[41] Some other concerns about specific wording of rights can be navigated when any Exposure Draft Bill is put to public consideration. The model also sets out a sensible framework for navigating the intersection of varied rights and freedoms.
As a general observation, I agree that the absence of a Human Rights Act does not mean that we do not have a strong tradition of rights and freedoms — we do — and they go back directly to the Magna Carta of 1215 and the Bill of Rights Act 1688,[42] but it does mean that the rights and freedoms enshrined in the international human rights instruments, and which Australia has promised to the world that we will respect domestically, are not directly enforceable in Australia. This means that rights and freedoms can be conveniently ‘distanced’, where the politics of the day chooses to push the issue, with little accountability or channels of challenge.
As to the charge of ‘weakening’ our democracy, the Commission’s model, endorsed by the majority of the PJCHR, rather strengthens our democratic and rule of law principles. It is a parliamentary model, by preserving parliamentary supremacy in a model based on dialogue. It enhances democracy by improving the quality of public debate and enabling minority and vulnerable groups to have a voice in decisions that affect them (through procedural duties) and to hold decision makers accountable.
As stated in the majority report:
The statutory model of a HRA respects parliamentary sovereignty – ensuring our elected representatives can continue to make the laws Parliament deems necessary. But with a HRA in place, Parliament would need to expressly consider human rights when making laws, and importantly, public authorities, including government departments, agencies and the Australian Federal Police, would need to consider rights when making decisions and act compatibly with rights (unless Parliament had directed them to do otherwise). ...
The committee considers that there is a clear need for a rights-based legal framework. Our current piecemeal approach to human rights protection is not adequate to ensure rights and freedoms are properly respected, protected or promoted. The committee considers that a HRA would be a framework by which the public sector can look at legislation, policies, practices and service delivery and consider their impact on individuals.[43]
Writing in The Guardian on 30 June 2024 and reflecting his keynote contribution to the Commission’s Free + Equal conference on 7 June, Michael Kirby expressed his disappointment with the committee members on the liberal side of politics in their rejection of a Human Rights Act. Instead, he said, they presented the argument of Sir Robert Menzies and Sir Owen Dixon, ‘the great chief justice of Australia in those days’ that ‘parliament does not need the additional accountability that a Human Rights Act would provide’.[44]
Why then, Mr Kirby asked, have our governments needed to apologise? He referred specifically to the apology to all members of the LGBTQ+ community by the NSW premier, Chris Minns, on 6 June, following the example already set in other states. ‘We’re sorry’, Minns said, ‘for every person convicted under legislation that should never have existed; for every person that experienced fear as a result of that legislation ... for every life that was damaged or diminished or destroyed by these unjust laws.’ ‘Why have we needed an apology from the NSW Premier,’ Kirby asked.
Why did we need an apology to the stolen generations? Why have we needed so many royal commissions to uncover the countless incidents by which Australian governments and their laws have trampled on people’s basic human rights?
Mr Kirby said that a Human Rights Act is ‘precisely the tool Australia needs to ensure that parliament is held to account for upholding human rights, and to give people access to justice in case their rights are violated or simply ignored’.[45]
We do have strong and stable democratic institutions that we should rightly be proud of, but this has not prevented human rights abuses by departments and agencies,[46] nor the eventual recognition of our Commonwealth, state and territory leaders of the need to apologise.
The weakness in the existing framework of protection, and especially the jurisdiction of the Commission itself, was also exposed during COVID-19. That framework simply was not good enough.
Mechanisms to raise complaints of breaches of human rights at the federal level, apart from the four Discrimination Acts,[47] are extremely limited. Our general human rights complaints jurisdiction, referable to the international treaties and without any redress to remedial pathways, is very limited. The only conclusion is a report to the Attorney-General. Speaking in relation to this function at its inception, then Attorney-General, Senator the Hon Peter Durack, said, somewhat expectantly, that the reports would ensure that governments and parliaments were ‘aware of situations in which there needs to be a redefinition of the rights of different individuals’ and that this would ‘stimulate them to take appropriate action’.[48] But in 2017, even this obligation of tabling was removed.
Having been responsible for signing over 50 of these human rights complaints reports in my seven years as President of the Australian Human Rights Commission,[49] and observed the care and diligence of the Commission’s mediators and lawyers, and the respectful engagement we have established with the principal responding department, the Department of Home Affairs, I acknowledge that it is an important jurisdiction. Important, yes, but deeply dismaying, with essentially no possibility of effective remedy.
And during COVID-19, the Commission received hundreds of complaints under this general human rights jurisdiction from Australians locked out of their own country.
We heard heartbreaking stories of people separated from dying relatives, in need of urgent medical assistance in Australia, and yet who could not get any engagement from their government to consider their personal situation. The existing legal protections were simply ineffective and basically disregarded by the government. It took us months even to find a relevant part of the Commonwealth to act as respondent to these complaints, landing eventually with the Department of Infrastructure.
The existing mechanisms are simply insufficient and do not provide the human rights protections that all people in Australia are entitled to – and expect.
Without comprehensive legal protection, education and other measures to promote an understanding of human rights, and the processes for monitoring compliance with them, Australia is not fully meeting its obligations to ensure that the human rights of all Australians are respected, protected and fulfilled. We are also letting so many people down – when human rights abuses continue hidden and unseen.
To say that our existing protections are good enough is not only complacent, but contemptuous of those we have let down.
A Human Rights Act is not the only answer, and it will not work by itself. This is why the Commission recommended that it be accompanied by substantial reform to embed consideration of human rights into the planning and development of legislation and policy. This substantive structural reform, endorsed strongly by the majority of the PJCHR, will lead to a greater level of rights-mindedness and ultimately better human rights outcomes.
2 ‘It didn’t make a difference in Victoria’
The Coalition members said that, during COVID-19, the Human Rights Charter in Victoria did not protect citizens from ‘draconian government overreach’,[50] nor had the human rights instruments in the ACT, Victoria and Queensland ‘influenced any positive outcomes’.[51] They considered that the Commission’s model ‘would simply entrench the failures of these existing state and territory’ provisions.
In contrast, Rob Hulls, the instigator of the Victorian Charter of Rights and Responsibilities spoke strongly at the Commission’s Free + Equal conference about how the Charter had been vital in cultural change in the public sector, moving consideration of rights impacts ‘from the periphery of government to the core’[52] and that it was the cultural change that was ‘more important, probably, than any other part of the charter’.[53] He said that the impacts had included ‘something as simple’ as getting a shower curtain for a woman in aged care to protect her privacy.[54]
The rejection in the dissenting report of the validity of the specific illustrations of the effective and positive impact that the legislation in the ACT, Victoria and Queensland had had in those jurisdictions, trivialises the very real and human story of people like the woman of whom Rob Hulls spoke – and the 101 Cases compiled by the Human Rights Law Centre, upon which those illustrations drew.[55]
With respect to some limitations in effectiveness during COVID–19,[56] which the dissenting report argued as a reason for showing the ineffectiveness of Human Rights Acts in places like Victoria, rather than undermining the case for human rights protections in legislation, they suggest where such protections should be strengthened – as in the proposed model included in the PJCHR report. Such an argument also ignores the real and practical impact that the Human Rights Acts did have during COVID – as set out in a specific section of the 101 Cases report.[57]
The majority report cited the Victorian Equal Opportunity & Human Rights Commission, which described the Charter as ‘a vital mechanism to frame concerns expressed by organisations and community members that public health measures unfairly limited their human rights’. VEOHRC highlighted instances of direct Charter impact:
The Charter required that public authorities considered and acted in accordance with human rights in decisions made by them to introduce and update public health measures, as well as in the implementation of public health orders. The Charter remained relevant to decisions by the Chief Health Officer about whether limitations on rights were necessary and proportionate when making public health orders. Furthermore, in 2021 the government introduced a new legal framework to manage pandemics – setting out how the Charter applies to the making of pandemic orders, with new checks and balances designed to further embed human rights considerations into government responses.[58]’
And as the Hon Pamela Tate AM KC observed in evidence before the Committee in August 2023,
at least people ... were able to come to a court and have a court carefully dissect whether the particular restrictions that had been placed on their freedom, including a curfew, were a defensible interference with human rights, given the importance of the objectives of the curfew, or whether, in fact, they were a breach of an obligation of human rights ... There was a provision of an analytical framework which enabled people who had a grievance to have that grievance intelligently considered in a formal and analytical way.[59]
3 ‘Surrendering to an “unelected and unaccountable judiciary”’[60]
The dissenting report said that ‘it is against the public interest for the Parliament to surrender their responsibility to defend human rights to the unelected judiciary’.[61] This ignores the fact that the role of the judiciary remains unchanged.
Given the clear constraints of the separation of powers, the Commission’s model retains the principle of parliamentary supremacy. There is no power for the courts to declare legislation invalid on the basis that it is incompatible with human rights.
Instead, the Human Rights Act would be a powerful statement by the Parliament that departments, agencies and public servants should act in a way that is compatible with human rights, and that legislation should be interpreted, so far as reasonably possible, in a way that is compatible with human rights.
The role of the courts would be to carry out these two tasks set by Parliament: determining human rights disputes, and interpreting legislation.
And litigation is not the point. In the context of the unlawful discrimination jurisdiction under the federal Discrimination Acts it is the possibility of litigation that provides the leverage to the whole process of seeking redress and, in appropriate cases, a pathway to enforceable remedies. And only a small percentage of conciliated matters ever get anywhere near a court. But without the possibility of a remedial pathway to the courts, we are stuck with the existing paper tiger jurisdiction of human rights complaints. The recommended cause of action would make the Commission’s model stronger than the state and territory models and more effective.
As one committee member expressed it during the hearings for the inquiry, the late Peta Murphy MP, the benefit of a Human Rights Act ‘is not necessarily the litigation that one might be able to commence based on it, but the benefit of driving a human rights culture within the Public Service’.[62] And, moreover, concerns about an increase in litigation have not manifested in relation to human rights instruments in Australia, the UK or New Zealand.[63]
As for the remark about our judiciary being ‘unelected’, this is the strength of our judiciary and the bulwark of its independence.
The dissenting report seems overly reflective of the US model of rights protection, which is a constitutional one. The Commission’s model is not a constitutional model. It is not like the US. It is a dialogue model – one recommended in the National Consultation Committee’s report in 2009. Dialogue models grant each branch of government a distinct role to play, in line with the ordinary institutional functions each performs. Most significantly, they do not involve the ability of the judicial branch to override legislation of the parliament. The model is not ‘quasi-Constitutional’ in nature.[64]
4 ‘It will create excessive uncertainty in determination’
The dissenting report says that human rights involve ‘abstract and vague concepts’[65] that judges are not equipped to deal with and the consequence of this would be an increased politicisation of the judiciary that would be entirely undesirable. Parliamentarians, they said, are ‘more capable of weighing community expectations as opposed to judges’.[66] They referred to the experience in the UK, stating that the PJCHR’s equivalent body in the Human Rights Committee ‘can be a more effective defender of human rights than a judiciary acting under the framework of a Human Rights Act’.[67] What this argument ignores is that the Human Rights Committee is working through the lens of the UK’s own Human Rights Act – and not the international treaties which are the lens for the PJCHR – and the UK Courts have a jurisdiction under their Act, which even includes a power to declare legislation incompatible with the Human Rights Act.
With respect to the ‘excessive uncertainty’ in interpretation, all legislative provisions – indeed also common law concepts – require interpretation and, through interpretation, develop jurisprudential certainty. That is the role of our independent judiciary. Common law concepts like ‘foreseeability’, the ‘neighbour principle’, the ‘reasonable man’, and concepts included in legislation, may all be attacked similarly. The model proposed focuses on setting out rights, including economic, social and cultural rights, in a way that would be justiciable.
What the Commission’s model provides is a middle ground between a constitutionally-suspect approach that would grant too much interpretive power to the courts to alter the meaning of legislation and an approach that would simply be akin to the existing common law principle of legality. The model also sets out a sensible framework for navigating the intersection of varied rights and freedoms.
Some other concerns about the specific wording of rights can be navigated when any Exposure Draft Bill is put to the public for consideration.
5 ‘The AHRC model departs from international standards’
This argument is made in the dissenting report in two ways. First, it is said that the Commission’s model does not use the precise language of articles 7 and 18 of the International Covenant on Civil and Political Rights (ICCPR)[68] in relation to freedom of religion. This was addressed in the PJCHR draft by inserting the exact language from the Convention. The Commission’s model was a bit tidier, but it’s not a matter of real concern.
Secondly, it is said that a general limitations clause, based on a proportionality test, departs from the variety of different limitation standards in the ICCPR.
But for a Human Rights Act to be workable, it needs to be easy to understand and apply, and we considered a single limitation clause to be preferable to separate limitation clauses for each right. The Commission’s proposal, focused on proportionality, is consistent with guidance from the Human Rights Committee that rights can only be limited when the limitation is necessary, reasonable and proportionate to a legitimate object.
6 ‘We don’t need a Human Rights Act because we have an enviable human rights tradition’
The Coalition members of the PJCHR contended that ‘Australia’s enviable human rights tradition is secured within the very fabric of Australian society, rather than through legislation or constitutional provisions’.[69]
I agree that a Human Rights Act is ‘not a guarantee of achieving protection of human rights’.[70] It is not designed to be. It is a mechanism of building responsibility through cultural change and providing tools of accountability and remedies — those conceptual bookends referred to earlier.
In his powerful opening keynote speech at the ‘Free + Equal conference’ in Sydney on 7 June, Michael Kirby said that ‘sometimes you need some deep principles as tools’. ‘Parliament doesn’t always fix things up’, he said, ‘Parliament is good in fixing up the problems of majorities.’.[71] In the complementary second part of the keynote presentation, Australian lawyer Jennifer Robinson, speaking of her experience in the UK with the Human Rights Act, said that it was ‘a modest but fundamentally important step’ and that it was the impact in ‘the upstream’ that had been much more significant than litigation.[72] In one example of its practical application, she said that ‘the only thing’ that then stood between Julian Assange and the extradition demanded by the US for so long was the Human Rights Act.[73]
Without the tools that a Human Rights Act would provide, to build a culture and a responsibility of rights-mindedness, we are left with a passive system of rights protection. And in a passive system of rights protection – ‘the very fabric of Australian society’, to which the Coalition members of the Committee referred, human rights abuses may go unchecked until the case becomes so compelling that the Government establishes a Royal Commission.
Our experience with Royal Commissions into Robodebt, the abuse experienced by persons with disability and in aged care, have exposed egregious human rights breaches, and show how our existing systems are just not adequate. Complacency and a rosy glow about the ‘incomparably robust’ nature of democracy in Australia are shown to be wanting.[74]
The need for better human rights protections in Australia can be summarised by one simple proposition: we should have proper protection of human rights at the national level because everybody’s human rights matter, all of the time. Access to human rights protection should not depend on where a person lives, or which level of government carries the responsibility.
This has to change. Not another Aged Care or Robodebt Royal Commission!
VI Final Thoughts
Australia was, proudly, a founding signatory to each of the three international instruments that together comprise the ‘International Bill of Rights’, but without comprehensive legal protection, education and other measures to promote an understanding of human rights, and the processes for monitoring compliance with human rights, Australia is not fully meeting its obligations to ensure that the human rights of all Australians are respected, protected and fulfilled. For a country that prides itself on giving the fair go, and which values decency and dignity, it is troubling that we do not give meaning to our long-held values in our national legal framework.
And yet there is a state of denial by some about this lack of protection – as is so palpably evident in the dissenting report. At the Commission’s recent national conference on human rights on 7 June, Professor George Williams described this denial as akin to walking into a thunderstorm and pretending that you have an umbrella.
Let’s protect people’s rights instead of having another generation of Royal Commissions forensically examining the damage we inflicted on people by not respecting their rights in the first place. Or, after generations of harm, to see our state and national leaders apologising for actions of the past.
‘Our governments are good at many things’, said Michael Kirby, and ‘we are one of the world’s oldest parliamentary democracies’. But he reminded us,
it was our government that enabled the stolen generations, the dispossession of Indigenous land, the laws oppressing women, LGBTQ+ people and people with disabilities. The aged care and robodebt royal commissions make it clear that anyone’s human rights can be trampled by government decisions at any time – not just people in minority groups. History shows that parliament and public officials do not always do well at protecting individual human rights. Particularly for minorities.
That is why we need to embed the principles espoused in the UDHR in our national laws, as tools to support parliament in protecting human rights. Doing so will ensure members of parliament are mindful of the core principles that unite us as human beings. It will help to ensure that the laws and policies they oversee are consistent with those principles.[75]
Mr Kirby’s hope was that future generations would read these core principles in a national Human Rights Act – on their tablets and iPads – much as he cherished the copy of the UDHR that his teacher, Mr Gorringe, gave him as a 10-year-old.
Then they will know their rights are, finally, protected by the law of this country. Parliament will still have the last word, but the people will have new means to get action before inquiries and apologies are needed.
* Rosalind Croucher is an Emeritus Professor at Macquarie University. President, Australian Human Rights Commission (30 July 20[1]7–29 July 2024).
1 This article draws on themes that the author has developed over a series of presentations on the Free and Equal work of the Australian Human Rights Commission and the National Lecture for the Australian Institute of Administrative Law 2024. I am appreciative of the comments by the anonymous referees.
[2] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948). The Charter of the United Nations was signed on 26 June 1945 which led to the establishment of the UN as an international organisation designed to end war and to promote peace, justice and better living for all mankind. See: <https://www.un.org/en/sections/history-united-nations-charter/1945-san-francisco-conference/index.html>.
[3] ‘History of the Declaration’, United Nations (Web Page) <https://www.un.org/en/about-us/udhr/history-of-the-declaration>.
[4] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
[5] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).
[6] Manfred Nowak, UN Covenant on Civil and Political Rights (NP Engel, 2nd ed, 2005) xx. It took another ten years for the Covenants to enter into force.
[7] Apart from the Second Optional Protocol to the ICCPR on the abolition of the death penalty, which likely would have been supported by both sides of politics, it is an equal split for the remaining 20 signing and ratification moments.
[8] Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon, Bills of Rights in Australia: History, Politics and Law (UNSW Press, 2009) (‘Bills of Rights in Australia’), attempts are summarised in ch 2, ‘A Short history of Australian Bills of Rights’.
[9] Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2019 (Qld).
[10] Bills of Rights in Australia (n 8) 29–30.
[11] Attorney-General’s Department (Cth), National Human Rights Consultation Report (Report, September 2009) 18: see Recommendations 17–31 (‘National Human Rights Consultation Report’).
[12] ‘Free and Equal – A National Conversation On Human Rights’ Australian Human Rights Commission (Web Page, 10 December 2021) <https://humanrights.gov.au/our-work/rights-and-freedoms/publications/free-and-equal-reform-agenda-federal-discrimination-laws>.
[13] ‘A National Human Rights Act for Australia’, Australian Human Rights Commission (Web Page, 7 March 2023) <https://humanrights.gov.au/human-rights-act-for-australia#:~:text=Australia%20has%20strong%20sense%20of,how%20they%20can%20be%20protected.>.
[14] Australian Human Rights Commission, Free & Equal: Revitalising Australia’s Commitment to Human Rights: Free & Equal Final Report 2023 (Final Report, 2023).
[15] ‘Free + Equal Human Rights Conference 2024’, Australian Human Rights Commission (Web Page) <https://humanrights.gov.au/free-and-equal-human-rights-conference-2024>.
[16] Australian Human Rights Commission (n 14) 22.
[17] Ibid.
[18] Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Age Discrimination Act 2004 (Cth).
[19] The different complaints jurisdictions are considered in Rosalind Croucher, ‘“Seeking Equal Dignity Without Discrimination”—The Australian Human Rights Commission and the Handling of Complaints’ (2019) 93 Australian Law Journal 571, 573–8.
[20] Human Rights Legislation Amendment Act 2017 (Cth). The previous s 46 required the Minister to cause a copy of every report to be tabled within 15 sitting days after the report was received by the Minister. The 2017 amendments made the reporting requirements in relation to human rights and ILO 111 complaints discretionary: ss 20A, 32A. Item 17 in the amending legislation states that such ‘discretionary reports ... are not required to be tabled’: Explanatory Memorandum, [66]. The explanation offered is that the amendment ‘is not intended to reduce public scrutiny of Commission reports. Rather, it is intended to reduce the administrative and resource cost of producing reports for the Commission’: Explanatory Memorandum, [67].
[21] They are published on the Commission’s website: <https://humanrights.gov.au/our-work/legal/publications>.
[22] Care, Dignity and Respect: Royal Commission into Aged Care Quality and Safety (Final Report, February 2021); Royal Commission into the Robodebt Scheme (Report, July 2023); Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Final Report, September 2023).
[23] ‘Trust In Public Institutions: Trends and Implications for Economic Security’, UN Department of Economic and Social Affairs (Web Page, July 2021) <https://www.un.org/development/desa/dspd/2021/07/trust-public-institutions/>.
[24] Luke Henriques-Gomes, ‘Robodebt: Court Approves $1.8bn Settlement for Victims of Government’s “Shameful” Failure’, The Guardian (online, 11 June 2021) <https://www.theguardian.com/australia-news/2021/jun/11/robodebt-court-approves-18bn-settlement-for-victims-of-governments-shameful-failure>.
[25] Australian Human Rights Commission, Position Paper: A Human Rights Act for Australia (Position Paper, March 2023) 251. This formulation was developed by the Law Council in its Human Rights Charter policy.
[26] However, because human rights claims are different in kind from complaints of unlawful discrimination, the Commission proposes additional termination grounds to apply to human rights complaints. These would enable a claim to be fast-tracked to the court where there is an imminent risk of irreparable harm.
[27] Parliamentary Joint Committee on Human Rights, Parliament of Australia, Inquiry into Australia’s Human Rights Framework (Full Report, May 2024) (‘Inquiry into Australia’s Human Rights Framework Report’).
[28] Ibid 299 [9.7].
[29] Ibid xvii [1.1].
[30] Ibid xvii [1.3].
[31] Ibid 57 [5.2].
[32] Ibid 299 [9.7].
[33] Ibid 299 [9.8].
[34] Ibid xxi–xxviii.
[35] National Human Rights Consultation Report (n 11) 96. The Commission noted that many of the most pressing human rights concerns facing people in Australia relate to economic, social and cultural rights, especially access to adequate health care, education and housing: Australian Human Rights Commission, ‘Submission to the National Human Rights Consultation Committee’, Australian Human Rights Commission (Submission Report, 2009) 9. The Committee commissioned a Colmar Brunton Social Research report in support of its conclusions: Colmar Brunton Social Research, National Human Rights Consultation—community research report (Report, 2009).
[36] Inquiry into Australia’s Human Rights Framework Report (n 27) 320–6 [9.73]–[9.89] .
[37] Ibid 81–9 [5.73]–[5.95].
[38] A misplaced criticism in the dissenting report: ibid 334 [1.8].
[39] Ibid 333 [1.6].
[40] Inquiry into Australia’s Human Rights Framework Report (n 27) 333 [1.7].
[41] See, eg, Bills of Rights in Australia (n 8) 29.
[42] See, eg, Australian Law Reform Commission, Traditional Rights and Freedoms: Encroachments by Commonwealth Laws (Report 129, December 2015) ch 2. I had the privilege to lead this inquiry at the ALRC.
[43] Inquiry into Australia’s Human Rights Framework Report (n 27) 298–9 [9.6]–[9.7].
[44] Michael Kirby, ‘History Shows Australian Laws Have Left Minorities Marginalised. A Human Rights Act Would Help Fix that’, The Guardian (online, 30 June 2024) <https://www.theguardian.com/commentisfree/article/2024/jun/30/australia-human-rights-act>. The theme of this OpEd reflects Mr Kirby’s remarks in his keynote address at the Free + Equal Conference, 7 June 2024.
[45] Kirby (n 44).
[46] Inquiry into Australia’s Human Rights Framework Report (n 27) 75–8 [5.55]–[5.64].
[47] Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Age Discrimination Act 2004 (Cth).
[48] Commonwealth, Parliamentary Debates, Senate, 25 September 1979 (Peter Durack, Attorney-General).
[49] The first report I signed as President was number 119.
[50] Inquiry into Australia’s Human Rights Framework Report (n 27) 346 [1.78].
[51] Ibid 346 [1.77].
[52] Rob Hulls (Speech, Free + Equal Human Rights Conference, 7 June 2024) 00:52:32.
[53] Ibid 00:54:19.
[54] Ibid 00:53:23.
[55] ‘Charters of Human Rights Make Our Lives Better: Here Are 101 Cases Showing How’, Human Rights Law Centre (Web Page) <https://www.humanrightsact.org.au/101-cases> (‘Human Rights Law Centre’). See also Caitlin Reiger, ‘Australia is the Only Liberal Democracy Without a Human Rights Act – That Could Finally Change’, Right Now (Blog Post, 11 June 2024) <https://rightnow.org.au/opinion/australia-human-rights-act-change/>.
[56] Inquiry into Australia’s Human Rights Framework Report (n 27) 346 [1.78]–[1.79].
[57] Human Rights Law Centre (n 55) 58–65, Cases 89–101 <https://www.humanrightsact.org.au/101-cases>.
[58] Inquiry into Australia’s Human Rights Framework Report (n 27) 68 [5.31].
[59] Ibid 69 [5.32].
[60] Ibid 333 [1.7].
[61] Ibid 337 [1.30].
[62] Inquiry into Australia’s Human Rights Framework Report (n 27) 314 [9.52].
[63] Ibid 88 [5.93]. See, eg, the submission of the Law Council of Australia, quoted at 88 [5.92].
[64] Ibid 338 [1.37].
[65] Ibid 338 [1.31].
[66] Ibid 338 [1.33].
[67] Ibid 337 [1.29].
[68] ICCPR (n 4).
[69] Inquiry into Australia’s Human Rights Framework Report (n 27) 334 [1.13].
[70] Ibid 335 [1.17].
[71] Michael Kirby, ‘Revitalising Australia’s Human Rights Framework’ (Speech, Free + Equal Human Rights Conference, 7 June 2024) 00:13:46.
[72] Jennifer Robinson (Speech, Free + Equal Human Rights Conference, 7 June 2024) 00:26:39.
[73] Ibid 00:29:13.
[74] Inquiry into Australia’s Human Rights Framework Report (n 27) 336 [1.24].
[75] Kirby (n 44).
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