By Paul Gregoire and Ugur Nedim
Australia is the only liberal democracy that doesn’t have a national act or charter enshrining and protecting basic human rights in domestic law, which means that while our government has agreed to uphold such rights at the international level, it has made no such commitment to its citizens.
The Australian Human Rights Commission (AHRC) released its position paper on how a federal Human Rights Act (HRA) might operate on 7 March. And the timing, nine months after Albanese took federal office, is significant, as Labor has always been more open to establishing such protections.
The ACT, Victoria and Queensland have all enacted a HRA or a charter to that end. And the protections they established have been impacting.
The most recent example is somewhat muddied as it involves the Queensland government implementing youth crime laws that breach the local HRA, so, while that state is continuing to encroach upon rights, it’s had to announce this to the nation and stipulate it in law.
Also referred to as a bill of rights, a HRA provides individuals with rights protections, ways to seek justice when they’re breached, provide the ability to challenge rights-violating decisions and ensure that government policies and laws don’t encroach upon rights and freedoms.
But while the timing of the release of this paper under Labor holds promise, it must be remembered that the Rudd government determined, in 2010, not to enact federal rights protections, after it had held an official inquiry.
A dialogue model
The Free and Equal report sets out the HRA model the commission recommends and it “seeks to complete the central, missing piece of our domestic legislative framework for the promotion and protection of human rights in Australia”, AHRC president Rosalind Croucher explains in the paper.
As the AHRC sets out, rights protections in this country are minimal and spread out like patchwork within certain pieces of legislation, the Australian Constitution – which only protects a handful of rights – and those established over time in common law.
“UN treaty bodies have repeatedly concluded that core treaties have not been adequately incorporated into Australia’s legal system,” the report states. “Many of Australia’s commitments to human rights are confined to rhetoric without corresponding domestic protections.”
So, to remedy this the AHRC is calling on the federal government to enact a HRA based on a dialogue model, which provides that there’s a formal exchange between the three branches of government – the executive, the legislature and the judiciary – all working to uphold rights.
The national act would provide the executive, including public authorities, with a specific duty to act in accordance with human rights, and the judiciary would be required to interpret laws in this regard, as well as to review them to ensure compliance.
Preventative in application
The AHRC considers a HRA would be the “bedrock of rights” in Australian law. Rights incorporated into the document would reflect the content of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The HRA would also incorporate the rights set out in the international instruments relating to Indigenous peoples, children and people living with disabilities. And a clause would require that the HRA be interpreted with an eye to the provisions of the seven core treaties our nation has ratified.
The AHRC’s preferred model involves upstream decision-making in terms of policy and resourcing, which means consideration of potential rights issues and violations must be taken into account during the lawmaking process, and prior to the passing of legislation, so rights laws are preventative.
In terms of First Nations rights, the AHRC recommends the rights and principles set out in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) should not only be reflected in the HRA but also via a national plan, with the right to self-determination articulated in a HRA preamble.
A legislative obligation
Under the HRA envisaged by the AHRC, public authorities would have a legislative obligation to act in accordance with human rights in decision-making. This would extend to all government departments, agencies and offices, as well as the police.
The obligation would also extend to procedural duties, including that of participation, which requires public authorities to engage groups whose rights will be disproportionately affected in decision-making around laws and policies, especially First Nations, children and people living with disabilities.
Public authorities would also be bound to a duty of equal access to justice, whereby it would be upon the authority to ensure that all others are able to navigate their systems so that they receive a just outcome, via mechanisms like legal assistance, translators and disability support.
The paper stipulates that a HRA should apply to all under Australian jurisdiction or control without discrimination, and it will provide a clause on how it should be interpretated. The interpretive clause would apply to the courts, with another clause setting out how certain rights might be limited.
HRAs operating at the state and territory level require the judiciary to issue declarations of incompatibility to the government when a court can’t interpret a law in accordance with human rights. However, the High Court considers these could be unconstitutional at the federal level.
So, the AHRC proposes that instead of issuing such a declaration, when a court finds that the parliament overridden human rights in novel law, this should trigger a requirement for the attorney general to review such a law.
Resolving rights breaches
The AHRC outlines that the implementation of a HRA should make public servants aware of human rights obligations, however this won’t completely rule out injustices. Therefore, the legislation “should provide a cause of action, a complaints pathway, and enforceable remedies”.
As is the case now, individuals would be able to raise rights complaints with the AHRC, but unlike the case now, they will be referring to local law to prove their case, not international instruments. And each right will have its own direct cause of action and an associated range of remedies.
In terms of these remedies, they’d include injunctions, orders to take certain action, compensation, or the overturning of administrative decisions.
Recommending implementation
Not so long ago, it was common for Australians to refer to their right to free speech, or other such freedoms, in a manner that suggested they were protected under the Constitution. However, this was the influence of US television content playing on local stations.
But this has changed. And the COVID pandemic brought this misunderstanding to a head, as when governments-imposed lockdowns, mandatory vaccinations and border closures many complained of encroachments before finding that rights simply aren’t protected in law.
Debate around enacting federal rights protections in this country goes back as far as the 1890s constitutional conventions, while Labor, certain minor party and independent politicians have raised it periodically ever since.
Over recent years, it’s been Independent MP Andrew Wilkie, who’s been keeping rights protections on the agenda, as he’s introduced private member HRA bills under Turnbull and Morrison.
The AHRC recommends the federal government implement a HRA, with elements of its position paper informing it. It also suggests improving parliamentary scrutiny.
But whilst the appearance of the AHRC report is significant as a Labor government is more open to such change, hope for reform should be tempered, as the general consensus on why successive Australian governments have not moved on rights protections is that it serves to limit their power.
